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Chapter: The Judiciary Continued in Relation to Trial by Jury

From MCLEAN's Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

THE objection to the plan of the convention, which has met with most
success in this State, and perhaps in several of the other States, is
that relative to the want of a constitutional provision for the trial
by jury in civil cases. The disingenuous form in which this objection
is usually stated has been repeatedly adverted to and exposed, but
continues to be pursued in all the conversations and writings of the
opponents of the plan. The mere silence of the Constitution in regard to
civil causes, is represented as an abolition of the trial by jury,
and the declamations to which it has afforded a pretext are artfully
calculated to induce a persuasion that this pretended abolition is
complete and universal, extending not only to every species of civil,
but even to criminal causes. To argue with respect to the latter would,
however, be as vain and fruitless as to attempt the serious proof of the
existence of matter, or to demonstrate any of those propositions which,
by their own internal evidence, force conviction, when expressed in
language adapted to convey their meaning.

With regard to civil causes, subtleties almost too contemptible for
refutation have been employed to countenance the surmise that a thing
which is only not provided for, is entirely abolished. Every man of
discernment must at once perceive the wide difference between silence
and abolition. But as the inventors of this fallacy have attempted to
support it by certain legal maxims of interpretation, which they have
perverted from their true meaning, it may not be wholly useless to
explore the ground they have taken.

The maxims on which they rely are of this nature: "A specification of
particulars is an exclusion of generals"; or, "The expression of one
thing is the exclusion of another." Hence, say they, as the Constitution
has established the trial by jury in criminal cases, and is silent in
respect to civil, this silence is an implied prohibition of trial by
jury in regard to the latter.

The rules of legal interpretation are rules of common sense, adopted by
the courts in the construction of the laws. The true test, therefore,
of a just application of them is its conformity to the source from which
they are derived. This being the case, let me ask if it is consistent
with common-sense to suppose that a provision obliging the legislative
power to commit the trial of criminal causes to juries, is a privation
of its right to authorize or permit that mode of trial in other
cases? Is it natural to suppose, that a command to do one thing is a
prohibition to the doing of another, which there was a previous power to
do, and which is not incompatible with the thing commanded to be done?
If such a supposition would be unnatural and unreasonable, it cannot be
rational to maintain that an injunction of the trial by jury in certain
cases is an interdiction of it in others.

A power to constitute courts is a power to prescribe the mode of trial;
and consequently, if nothing was said in the Constitution on the subject
of juries, the legislature would be at liberty either to adopt that
institution or to let it alone. This discretion, in regard to criminal
causes, is abridged by the express injunction of trial by jury in all
such cases; but it is, of course, left at large in relation to civil
causes, there being a total silence on this head. The specification of
an obligation to try all criminal causes in a particular mode, excludes
indeed the obligation or necessity of employing the same mode in civil
causes, but does not abridge the power of the legislature to exercise
that mode if it should be thought proper. The pretense, therefore, that
the national legislature would not be at full liberty to submit all the
civil causes of federal cognizance to the determination of juries, is a
pretense destitute of all just foundation.

From these observations this conclusion results: that the trial by jury
in civil cases would not be abolished; and that the use attempted to
be made of the maxims which have been quoted, is contrary to reason and
common-sense, and therefore not admissible. Even if these maxims had a
precise technical sense, corresponding with the idea of those who employ
them upon the present occasion, which, however, is not the case, they
would still be inapplicable to a constitution of government. In relation
to such a subject, the natural and obvious sense of its provisions,
apart from any technical rules, is the true criterion of construction.

Having now seen that the maxims relied upon will not bear the use made
of them, let us endeavor to ascertain their proper use and true meaning.
This will be best done by examples. The plan of the convention declares
that the power of Congress, or, in other words, of the national
legislature, shall extend to certain enumerated cases. This
specification of particulars evidently excludes all pretension to a
general legislative authority, because an affirmative grant of special
powers would be absurd, as well as useless, if a general authority was
intended.

In like manner the judicial authority of the federal judicatures is
declared by the Constitution to comprehend certain cases particularly
specified. The expression of those cases marks the precise limits,
beyond which the federal courts cannot extend their jurisdiction,
because the objects of their cognizance being enumerated, the
specification would be nugatory if it did not exclude all ideas of more
extensive authority.

These examples are sufficient to elucidate the maxims which have been
mentioned, and to designate the manner in which they should be used. But
that there may be no misapprehensions upon this subject, I shall add one
case more, to demonstrate the proper use of these maxims, and the abuse
which has been made of them.

Let us suppose that by the laws of this State a married woman was
incapable of conveying her estate, and that the legislature, considering
this as an evil, should enact that she might dispose of her property by
deed executed in the presence of a magistrate. In such a case there can
be no doubt but the specification would amount to an exclusion of any
other mode of conveyance, because the woman having no previous power to
alienate her property, the specification determines the particular mode
which she is, for that purpose, to avail herself of. But let us further
suppose that in a subsequent part of the same act it should be declared
that no woman should dispose of any estate of a determinate value
without the consent of three of her nearest relations, signified by
their signing the deed; could it be inferred from this regulation that
a married woman might not procure the approbation of her relations to
a deed for conveying property of inferior value? The position is too
absurd to merit a refutation, and yet this is precisely the position
which those must establish who contend that the trial by juries in civil
cases is abolished, because it is expressly provided for in cases of a
criminal nature.

From these observations it must appear unquestionably true, that trial
by jury is in no case abolished by the proposed Constitution, and it is
equally true, that in those controversies between individuals in
which the great body of the people are likely to be interested, that
institution will remain precisely in the same situation in which it is
placed by the State constitutions, and will be in no degree altered
or influenced by the adoption of the plan under consideration. The
foundation of this assertion is, that the national judiciary will have
no cognizance of them, and of course they will remain determinable as
heretofore by the State courts only, and in the manner which the State
constitutions and laws prescribe. All land causes, except where claims
under the grants of different States come into question, and all other
controversies between the citizens of the same State, unless where they
depend upon positive violations of the articles of union, by acts of the
State legislatures, will belong exclusively to the jurisdiction of the
State tribunals. Add to this, that admiralty causes, and almost all
those which are of equity jurisdiction, are determinable under our own
government without the intervention of a jury, and the inference from
the whole will be, that this institution, as it exists with us at
present, cannot possibly be affected to any great extent by the proposed
alteration in our system of government.

The friends and adversaries of the plan of the convention, if they agree
in nothing else, concur at least in the value they set upon the trial
by jury; or if there is any difference between them it consists in this:
the former regard it as a valuable safeguard to liberty; the latter
represent it as the very palladium of free government. For my own
part, the more the operation of the institution has fallen under my
observation, the more reason I have discovered for holding it in high
estimation; and it would be altogether superfluous to examine to
what extent it deserves to be esteemed useful or essential in a
representative republic, or how much more merit it may be entitled to,
as a defense against the oppressions of an hereditary monarch, than as
a barrier to the tyranny of popular magistrates in a popular government.
Discussions of this kind would be more curious than beneficial, as all
are satisfied of the utility of the institution, and of its friendly
aspect to liberty. But I must acknowledge that I cannot readily discern
the inseparable connection between the existence of liberty, and the
trial by jury in civil cases. Arbitrary impeachments, arbitrary methods
of prosecuting pretended offenses, and arbitrary punishments upon
arbitrary convictions, have ever appeared to me to be the great
engines of judicial despotism; and these have all relation to criminal
proceedings. The trial by jury in criminal cases, aided by the habeas
corpus act, seems therefore to be alone concerned in the question. And
both of these are provided for, in the most ample manner, in the plan of
the convention.

It has been observed, that trial by jury is a safeguard against an
oppressive exercise of the power of taxation. This observation deserves
to be canvassed.

It is evident that it can have no influence upon the legislature, in
regard to the amount of taxes to be laid, to the objects upon which they
are to be imposed, or to the rule by which they are to be apportioned.
If it can have any influence, therefore, it must be upon the mode of
collection, and the conduct of the officers intrusted with the execution
of the revenue laws.

As to the mode of collection in this State, under our own Constitution,
the trial by jury is in most cases out of use. The taxes are usually
levied by the more summary proceeding of distress and sale, as in cases
of rent. And it is acknowledged on all hands, that this is essential to
the efficacy of the revenue laws. The dilatory course of a trial at
law to recover the taxes imposed on individuals, would neither suit the
exigencies of the public nor promote the convenience of the citizens. It
would often occasion an accumulation of costs, more burdensome than the
original sum of the tax to be levied.

And as to the conduct of the officers of the revenue, the provision in
favor of trial by jury in criminal cases, will afford the security
aimed at. Wilful abuses of a public authority, to the oppression of the
subject, and every species of official extortion, are offenses against
the government, for which the persons who commit them may be indicted
and punished according to the circumstances of the case.

The excellence of the trial by jury in civil cases appears to depend
on circumstances foreign to the preservation of liberty. The strongest
argument in its favor is, that it is a security against corruption.
As there is always more time and better opportunity to tamper with a
standing body of magistrates than with a jury summoned for the occasion,
there is room to suppose that a corrupt influence would more easily
find its way to the former than to the latter. The force of this
consideration is, however, diminished by others. The sheriff, who is
the summoner of ordinary juries, and the clerks of courts, who have the
nomination of special juries, are themselves standing officers, and,
acting individually, may be supposed more accessible to the touch
of corruption than the judges, who are a collective body. It is not
difficult to see, that it would be in the power of those officers to
select jurors who would serve the purpose of the party as well as a
corrupted bench. In the next place, it may fairly be supposed,
that there would be less difficulty in gaining some of the jurors
promiscuously taken from the public mass, than in gaining men who had
been chosen by the government for their probity and good character. But
making every deduction for these considerations, the trial by jury must
still be a valuable check upon corruption. It greatly multiplies the
impediments to its success. As matters now stand, it would be necessary
to corrupt both court and jury; for where the jury have gone evidently
wrong, the court will generally grant a new trial, and it would be in
most cases of little use to practice upon the jury, unless the court
could be likewise gained. Here then is a double security; and it will
readily be perceived that this complicated agency tends to preserve the
purity of both institutions. By increasing the obstacles to success, it
discourages attempts to seduce the integrity of either. The temptations
to prostitution which the judges might have to surmount, must certainly
be much fewer, while the co-operation of a jury is necessary, than they
might be, if they had themselves the exclusive determination of all
causes.

Notwithstanding, therefore, the doubts I have expressed, as to the
essentiality of trial by jury in civil cases to liberty, I admit that
it is in most cases, under proper regulations, an excellent method of
determining questions of property; and that on this account alone it
would be entitled to a constitutional provision in its favor if it were
possible to fix the limits within which it ought to be comprehended.
There is, however, in all cases, great difficulty in this; and men not
blinded by enthusiasm must be sensible that in a federal government,
which is a composition of societies whose ideas and institutions in
relation to the matter materially vary from each other, that difficulty
must be not a little augmented. For my own part, at every new view
I take of the subject, I become more convinced of the reality of
the obstacles which, we are authoritatively informed, prevented the
insertion of a provision on this head in the plan of the convention.

The great difference between the limits of the jury trial in different
States is not generally understood; and as it must have considerable
influence on the sentence we ought to pass upon the omission complained
of in regard to this point, an explanation of it is necessary. In this
State, our judicial establishments resemble, more nearly than in any
other, those of Great Britain. We have courts of common law, courts
of probates (analogous in certain matters to the spiritual courts in
England), a court of admiralty and a court of chancery. In the courts
of common law only, the trial by jury prevails, and this with some
exceptions. In all the others a single judge presides, and proceeds
in general either according to the course of the canon or civil law,
without the aid of a jury.(1) In New Jersey, there is a court of
chancery which proceeds like ours, but neither courts of admiralty nor
of probates, in the sense in which these last are established with us.
In that State the courts of common law have the cognizance of those
causes which with us are determinable in the courts of admiralty and of
probates, and of course the jury trial is more extensive in New Jersey
than in New York. In Pennsylvania, this is perhaps still more the case,
for there is no court of chancery in that State, and its common-law
courts have equity jurisdiction. It has a court of admiralty, but
none of probates, at least on the plan of ours. Delaware has in these
respects imitated Pennsylvania. Maryland approaches more nearly to New
York, as does also Virginia, except that the latter has a plurality of
chancellors. North Carolina bears most affinity to Pennsylvania; South
Carolina to Virginia. I believe, however, that in some of those States
which have distinct courts of admiralty, the causes depending in them
are triable by juries. In Georgia there are none but common-law courts,
and an appeal of course lies from the verdict of one jury to another,
which is called a special jury, and for which a particular mode of
appointment is marked out. In Connecticut, they have no distinct courts
either of chancery or of admiralty, and their courts of probates have no
jurisdiction of causes. Their common-law courts have admiralty and, to
a certain extent, equity jurisdiction. In cases of importance, their
General Assembly is the only court of chancery. In Connecticut,
therefore, the trial by jury extends in practice further than in
any other State yet mentioned. Rhode Island is, I believe, in this
particular, pretty much in the situation of Connecticut. Massachusetts
and New Hampshire, in regard to the blending of law, equity, and
admiralty jurisdictions, are in a similar predicament. In the four
Eastern States, the trial by jury not only stands upon a broader
foundation than in the other States, but it is attended with a
peculiarity unknown, in its full extent, to any of them. There is an
appeal of course from one jury to another, till there have been two
verdicts out of three on one side.

From this sketch it appears that there is a material diversity, as well
in the modification as in the extent of the institution of trial by jury
in civil cases, in the several States; and from this fact these obvious
reflections flow: first, that no general rule could have been fixed upon
by the convention which would have corresponded with the circumstances
of all the States; and secondly, that more or at least as much might
have been hazarded by taking the system of any one State for a standard,
as by omitting a provision altogether and leaving the matter, as has
been done, to legislative regulation.

The propositions which have been made for supplying the omission have
rather served to illustrate than to obviate the difficulty of the thing.
The minority of Pennsylvania have proposed this mode of expression for
the purpose--"Trial by jury shall be as heretofore"--and this I maintain
would be senseless and nugatory. The United States, in their united or
collective capacity, are the OBJECT to which all general provisions
in the Constitution must necessarily be construed to refer. Now it is
evident that though trial by jury, with various limitations, is known
in each State individually, yet in the United States, as such, it is at
this time altogether unknown, because the present federal government
has no judiciary power whatever; and consequently there is no proper
antecedent or previous establishment to which the term heretofore
could relate. It would therefore be destitute of a precise meaning, and
inoperative from its uncertainty.

As, on the one hand, the form of the provision would not fulfil the
intent of its proposers, so, on the other, if I apprehend that intent
rightly, it would be in itself inexpedient. I presume it to be, that
causes in the federal courts should be tried by jury, if, in the State
where the courts sat, that mode of trial would obtain in a similar case
in the State courts; that is to say, admiralty causes should be tried in
Connecticut by a jury, in New York without one. The capricious operation
of so dissimilar a method of trial in the same cases, under the same
government, is of itself sufficient to indispose every wellregulated
judgment towards it. Whether the cause should be tried with or without
a jury, would depend, in a great number of cases, on the accidental
situation of the court and parties.

But this is not, in my estimation, the greatest objection. I feel a deep
and deliberate conviction that there are many cases in which the trial
by jury is an ineligible one. I think it so particularly in cases which
concern the public peace with foreign nations--that is, in most cases
where the question turns wholly on the laws of nations. Of this nature,
among others, are all prize causes. Juries cannot be supposed competent
to investigations that require a thorough knowledge of the laws and
usages of nations; and they will sometimes be under the influence of
impressions which will not suffer them to pay sufficient regard to those
considerations of public policy which ought to guide their inquiries.
There would of course be always danger that the rights of other nations
might be infringed by their decisions, so as to afford occasions of
reprisal and war. Though the proper province of juries be to determine
matters of fact, yet in most cases legal consequences are complicated
with fact in such a manner as to render a separation impracticable.

It will add great weight to this remark, in relation to prize causes, to
mention that the method of determining them has been thought worthy of
particular regulation in various treaties between different powers of
Europe, and that, pursuant to such treaties, they are determinable in
Great Britain, in the last resort, before the king himself, in his privy
council, where the fact, as well as the law, undergoes a re-examination.
This alone demonstrates the impolicy of inserting a fundamental
provision in the Constitution which would make the State systems a
standard for the national government in the article under consideration,
and the danger of encumbering the government with any constitutional
provisions the propriety of which is not indisputable.

My convictions are equally strong that great advantages result from the
separation of the equity from the law jurisdiction, and that the causes
which belong to the former would be improperly committed to juries.
The great and primary use of a court of equity is to give relief in
extraordinary cases, which are exceptions(2) to general rules. To unite
the jurisdiction of such cases with the ordinary jurisdiction, must have
a tendency to unsettle the general rules, and to subject every case that
arises to a special determination; while a separation of the one from
the other has the contrary effect of rendering one a sentinel over the
other, and of keeping each within the expedient limits. Besides this,
the circumstances that constitute cases proper for courts of equity are
in many instances so nice and intricate, that they are incompatible with
the genius of trials by jury. They require often such long, deliberate,
and critical investigation as would be impracticable to men called from
their occupations, and obliged to decide before they were permitted
to return to them. The simplicity and expedition which form the
distinguishing characters of this mode of trial require that the matter
to be decided should be reduced to some single and obvious point; while
the litigations usual in chancery frequently comprehend a long train of
minute and independent particulars.

It is true that the separation of the equity from the legal jurisdiction
is peculiar to the English system of jurisprudence: which is the model
that has been followed in several of the States. But it is equally true
that the trial by jury has been unknown in every case in which they have
been united. And the separation is essential to the preservation of that
institution in its pristine purity. The nature of a court of equity will
readily permit the extension of its jurisdiction to matters of law;
but it is not a little to be suspected, that the attempt to extend the
jurisdiction of the courts of law to matters of equity will not only
be unproductive of the advantages which may be derived from courts of
chancery, on the plan upon which they are established in this State, but
will tend gradually to change the nature of the courts of law, and to
undermine the trial by jury, by introducing questions too complicated
for a decision in that mode.

These appeared to be conclusive reasons against incorporating the
systems of all the States, in the formation of the national judiciary,
according to what may be conjectured to have been the attempt of the
Pennsylvania minority. Let us now examine how far the proposition of
Massachusetts is calculated to remedy the supposed defect.

It is in this form: "In civil actions between citizens of different
States, every issue of fact, arising in actions at common law, may be
tried by a jury if the parties, or either of them request it."

This, at best, is a proposition confined to one description of causes;
and the inference is fair, either that the Massachusetts convention
considered that as the only class of federal causes, in which the
trial by jury would be proper; or that if desirous of a more extensive
provision, they found it impracticable to devise one which would
properly answer the end. If the first, the omission of a regulation
respecting so partial an object can never be considered as a
material imperfection in the system. If the last, it affords a strong
corroboration of the extreme difficulty of the thing.

But this is not all: if we advert to the observations already made
respecting the courts that subsist in the several States of the Union,
and the different powers exercised by them, it will appear that there
are no expressions more vague and indeterminate than those which
have been employed to characterize that species of causes which it
is intended shall be entitled to a trial by jury. In this State, the
boundaries between actions at common law and actions of equitable
jurisdiction, are ascertained in conformity to the rules which prevail
in England upon that subject. In many of the other States the boundaries
are less precise. In some of them every cause is to be tried in a court
of common law, and upon that foundation every action may be considered
as an action at common law, to be determined by a jury, if the parties,
or either of them, choose it. Hence the same irregularity and confusion
would be introduced by a compliance with this proposition, that I
have already noticed as resulting from the regulation proposed by
the Pennsylvania minority. In one State a cause would receive its
determination from a jury, if the parties, or either of them, requested
it; but in another State, a cause exactly similar to the other, must
be decided without the intervention of a jury, because the State
judicatories varied as to common-law jurisdiction.

It is obvious, therefore, that the Massachusetts proposition, upon this
subject cannot operate as a general regulation, until some uniform plan,
with respect to the limits of common-law and equitable jurisdictions,
shall be adopted by the different States. To devise a plan of that kind
is a task arduous in itself, and which it would require much time
and reflection to mature. It would be extremely difficult, if not
impossible, to suggest any general regulation that would be acceptable
to all the States in the Union, or that would perfectly quadrate with
the several State institutions.

It may be asked, Why could not a reference have been made to the
constitution of this State, taking that, which is allowed by me to be a
good one, as a standard for the United States? I answer that it is not
very probable the other States would entertain the same opinion of our
institutions as we do ourselves. It is natural to suppose that they are
hitherto more attached to their own, and that each would struggle for
the preference. If the plan of taking one State as a model for the whole
had been thought of in the convention, it is to be presumed that the
adoption of it in that body would have been rendered difficult by the
predilection of each representation in favor of its own government; and
it must be uncertain which of the States would have been taken as the
model. It has been shown that many of them would be improper ones. And
I leave it to conjecture, whether, under all circumstances, it is most
likely that New York, or some other State, would have been preferred.
But admit that a judicious selection could have been effected in the
convention, still there would have been great danger of jealousy and
disgust in the other States, at the partiality which had been shown
to the institutions of one. The enemies of the plan would have been
furnished with a fine pretext for raising a host of local prejudices
against it, which perhaps might have hazarded, in no inconsiderable
degree, its final establishment.

To avoid the embarrassments of a definition of the cases which the
trial by jury ought to embrace, it is sometimes suggested by men of
enthusiastic tempers, that a provision might have been inserted
for establishing it in all cases whatsoever. For this I believe,
no precedent is to be found in any member of the Union; and the
considerations which have been stated in discussing the proposition of
the minority of Pennsylvania, must satisfy every sober mind that the
establishment of the trial by jury in all cases would have been an
unpardonable error in the plan.

In short, the more it is considered the more arduous will appear the
task of fashioning a provision in such a form as not to express too
little to answer the purpose, or too much to be advisable; or which
might not have opened other sources of opposition to the great and
essential object of introducing a firm national government.

I cannot but persuade myself, on the other hand, that the different
lights in which the subject has been placed in the course of these
observations, will go far towards removing in candid minds the
apprehensions they may have entertained on the point. They have tended
to show that the security of liberty is materially concerned only in the
trial by jury in criminal cases, which is provided for in the most ample
manner in the plan of the convention; that even in far the greatest
proportion of civil cases, and those in which the great body of the
community is interested, that mode of trial will remain in its full
force, as established in the State constitutions, untouched and
unaffected by the plan of the convention; that it is in no
case abolished(3) by that plan; and that there are great if not
insurmountable difficulties in the way of making any precise and proper
provision for it in a Constitution for the United States.

The best judges of the matter will be the least anxious for a
constitutional establishment of the trial by jury in civil cases, and
will be the most ready to admit that the changes which are continually
happening in the affairs of society may render a different mode of
determining questions of property preferable in many cases in which
that mode of trial now prevails. For my part, I acknowledge myself to be
convinced that even in this State it might be advantageously extended
to some cases to which it does not at present apply, and might as
advantageously be abridged in others. It is conceded by all reasonable
men that it ought not to obtain in all cases. The examples of
innovations which contract its ancient limits, as well in these States
as in Great Britain, afford a strong presumption that its former extent
has been found inconvenient, and give room to suppose that future
experience may discover the propriety and utility of other exceptions.
I suspect it to be impossible in the nature of the thing to fix the
salutary point at which the operation of the institution ought to stop,
and this is with me a strong argument for leaving the matter to the
discretion of the legislature.

This is now clearly understood to be the case in Great Britain, and
it is equally so in the State of Connecticut; and yet it may be safely
affirmed that more numerous encroachments have been made upon the trial
by jury in this State since the Revolution, though provided for by a
positive article of our constitution, than has happened in the same
time either in Connecticut or Great Britain. It may be added that these
encroachments have generally originated with the men who endeavor to
persuade the people they are the warmest defenders of popular liberty,
but who have rarely suffered constitutional obstacles to arrest them in
a favorite career. The truth is that the general GENIUS of a government
is all that can be substantially relied upon for permanent effects.
Particular provisions, though not altogether useless, have far less
virtue and efficacy than are commonly ascribed to them; and the want of
them will never be, with men of sound discernment, a decisive objection
to any plan which exhibits the leading characters of a good government.

It certainly sounds not a little harsh and extraordinary to affirm
that there is no security for liberty in a Constitution which expressly
establishes the trial by jury in criminal cases, because it does not do
it in civil also; while it is a notorious fact that Connecticut, which
has been always regarded as the most popular State in the Union, can
boast of no constitutional provision for either.

PUBLIUS

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

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

3. Vide No. 81, in which the supposition of its being abolished by the
appellate jurisdiction in matters of fact being vested in the Supreme
Court, is examined and refuted.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: In this final paper on the judiciary, and the longest paper in the Federalist, Hamilton responds to concerns about the absence of a constitutional provision for trial by jury in civil cases. Although the Constitution explicitly protects the right to trial by jury in criminal cases, it does not offer such a guarantee in civil cases . Anti-federalists argued that this omission was a deliberate attempt to deny citizens the right to a jury trial in civil cases. Hamilton responds that just because the Constitution does not specifically guarantee the right to trial by jury in civil cases does not mean that juries are forbidden in such cases. Rather, the Constitution leaves it to the national legislature to decide whether to allow for juries in civil cases and even to specify in what kinds of civil cases juries may be allowed. Hamilton argues that it was necessary to specifically guarantee the right to trial by jury in criminal cases since judicial malpractice in such cases poses a far greater threat to the liberty of the individual than civil cases. It was widely believed that juries could be trusted more than individual judges to uphold justice. Thus, in cases where the verdict may result in the accused facing prison time or execution, it is essential that juries be allowed. Civil cases, in contrast, do not threaten the existence of liberty in the same way. Hamilton argues further that civil cases are far more complicated and varied than criminal cases, so much so that they may be beyond the ability of the average citizen serving on a jury to comprehend. In civil cases involving complex financial transactions and business disputes, the minute details may be beyond the ability of average citizens to judge fairly. Other cases, such as those involving disputes with other nations, could also be inappropriate for juries since they may involve highly sensitive issues that, if not handled delicately, might lead to war. Hamilton concludes, therefore, that it is best left to Congress to determine when juries should be allowed in civil cases. The authors of the Constitution did not intend to abolish trial by jury in civil cases. Rather, they thought it prudent to leave it to the representatives of the people to decide in which types of civil cases juries should be allowed.


prompt:
Chapter: Certain General and Miscellaneous Objections to the Constitution
Considered and Answered.

From McLEAN's Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

IN THE course of the foregoing review of the Constitution, I have taken
notice of, and endeavored to answer most of the objections which have
appeared against it. There, however, remain a few which either did not
fall naturally under any particular head or were forgotten in their
proper places. These shall now be discussed; but as the subject has been
drawn into great length, I shall so far consult brevity as to comprise
all my observations on these miscellaneous points in a single paper.

The most considerable of the remaining objections is that the plan of
the convention contains no bill of rights. Among other answers given
to this, it has been upon different occasions remarked that the
constitutions of several of the States are in a similar predicament.
I add that New York is of the number. And yet the opposers of the new
system, in this State, who profess an unlimited admiration for its
constitution, are among the most intemperate partisans of a bill of
rights. To justify their zeal in this matter, they allege two things:
one is that, though the constitution of New York has no bill of rights
prefixed to it, yet it contains, in the body of it, various provisions
in favor of particular privileges and rights, which, in substance amount
to the same thing; the other is, that the Constitution adopts, in their
full extent, the common and statute law of Great Britain, by which many
other rights, not expressed in it, are equally secured.

To the first I answer, that the Constitution proposed by the convention
contains, as well as the constitution of this State, a number of such
provisions.

Independent of those which relate to the structure of the government, we
find the following: Article 1, section 3, clause 7--"Judgment in cases
of impeachment shall not extend further than to removal from office, and
disqualification to hold and enjoy any office of honor, trust, or profit
under the United States; but the party convicted shall, nevertheless,
be liable and subject to indictment, trial, judgment, and punishment
according to law." Section 9, of the same article, clause 2--"The
privilege of the writ of habeas corpus shall not be suspended, unless
when in cases of rebellion or invasion the public safety may require
it." Clause 3--"No bill of attainder or ex-post-facto law shall be
passed." Clause 7--"No title of nobility shall be granted by the United
States; and no person holding any office of profit or trust under them,
shall, without the consent of the Congress, accept of any present,
emolument, office, or title of any kind whatever, from any king, prince,
or foreign state." Article 3, section 2, clause 3--"The trial of all
crimes, except in cases of impeachment, shall be by jury; and such
trial shall be held in the State where the said crimes shall have been
committed; but when not committed within any State, the trial shall
be at such place or places as the Congress may by law have directed."
Section 3, of the same article--"Treason against the United States
shall consist only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. No person shall be convicted of
treason, unless on the testimony of two witnesses to the same overt act,
or on confession in open court." And clause 3, of the same section--"The
Congress shall have power to declare the punishment of treason; but
no attainder of treason shall work corruption of blood, or forfeiture,
except during the life of the person attainted."

It may well be a question, whether these are not, upon the whole, of
equal importance with any which are to be found in the constitution
of this State. The establishment of the writ of habeas corpus, the
prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which
we have no corresponding provision in our Constitution, are perhaps
greater securities to liberty and republicanism than any it contains.
The creation of crimes after the commission of the fact, or, in other
words, the subjecting of men to punishment for things which, when
they were done, were breaches of no law, and the practice of arbitrary
imprisonments, have been, in all ages, the favorite and most formidable
instruments of tyranny. The observations of the judicious Blackstone,(1)
in reference to the latter, are well worthy of recital: "To bereave a
man of life, (says he) or by violence to confiscate his estate,
without accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole nation; but confinement of the person, by secretly hurrying him to
jail, where his sufferings are unknown or forgotten, is a less public,
a less striking, and therefore a more dangerous engine of arbitrary
government." And as a remedy for this fatal evil he is everywhere
peculiarly emphatical in his encomiums on the habeas corpus act, which
in one place he calls "the BULWARK of the British Constitution."(2)

Nothing need be said to illustrate the importance of the prohibition of
titles of nobility. This may truly be denominated the corner-stone of
republican government; for so long as they are excluded, there can never
be serious danger that the government will be any other than that of the
people.

To the second that is, to the pretended establishment of the common and
state law by the Constitution, I answer, that they are expressly made
subject "to such alterations and provisions as the legislature shall
from time to time make concerning the same." They are therefore at any
moment liable to repeal by the ordinary legislative power, and of course
have no constitutional sanction. The only use of the declaration was
to recognize the ancient law and to remove doubts which might have been
occasioned by the Revolution. This consequently can be considered as no
part of a declaration of rights, which under our constitutions must be
intended as limitations of the power of the government itself.

It has been several times truly remarked that bills of rights are,
in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of
rights not surrendered to the prince. Such was MAGNA CHARTA, obtained
by the barons, sword in hand, from King John. Such were the subsequent
confirmations of that charter by succeeding princes. Such was the
Petition of Right assented to by Charles I., in the beginning of his
reign. Such, also, was the Declaration of Right presented by the Lords
and Commons to the Prince of Orange in 1688, and afterwards thrown
into the form of an act of parliament called the Bill of Rights. It is
evident, therefore, that, according to their primitive signification,
they have no application to constitutions professedly founded upon the
power of the people, and executed by their immediate representatives and
servants. Here, in strictness, the people surrender nothing; and as they
retain every thing they have no need of particular reservations. "WE,
THE PEOPLE of the United States, to secure the blessings of liberty to
ourselves and our posterity, do ordain and establish this Constitution
for the United States of America." Here is a better recognition of
popular rights, than volumes of those aphorisms which make the principal
figure in several of our State bills of rights, and which would
sound much better in a treatise of ethics than in a constitution of
government.

But a minute detail of particular rights is certainly far less
applicable to a Constitution like that under consideration, which is
merely intended to regulate the general political interests of the
nation, than to a constitution which has the regulation of every species
of personal and private concerns. If, therefore, the loud clamors
against the plan of the convention, on this score, are well founded, no
epithets of reprobation will be too strong for the constitution of
this State. But the truth is, that both of them contain all which, in
relation to their objects, is reasonably to be desired.

I go further, and affirm that bills of rights, in the sense and to the
extent in which they are contended for, are not only unnecessary in the
proposed Constitution, but would even be dangerous. They would contain
various exceptions to powers not granted; and, on this very account,
would afford a colorable pretext to claim more than were granted. For
why declare that things shall not be done which there is no power to do?
Why, for instance, should it be said that the liberty of the press shall
not be restrained, when no power is given by which restrictions may
be imposed? I will not contend that such a provision would confer
a regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretense for claiming that power. They
might urge with a semblance of reason, that the Constitution ought not
to be charged with the absurdity of providing against the abuse of
an authority which was not given, and that the provision against
restraining the liberty of the press afforded a clear implication, that
a power to prescribe proper regulations concerning it was intended to be
vested in the national government. This may serve as a specimen of the
numerous handles which would be given to the doctrine of constructive
powers, by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much as has been said,
I cannot forbear adding a remark or two: in the first place, I observe,
that there is not a syllable concerning it in the constitution of this
State; in the next, I contend, that whatever has been said about it
in that of any other State, amounts to nothing. What signifies a
declaration, that "the liberty of the press shall be inviolably
preserved"? What is the liberty of the press? Who can give it any
definition which would not leave the utmost latitude for evasion? I
hold it to be impracticable; and from this I infer, that its security,
whatever fine declarations may be inserted in any constitution
respecting it, must altogether depend on public opinion, and on the
general spirit of the people and of the government.(3) And here, after
all, as is intimated upon another occasion, must we seek for the only
solid basis of all our rights.

There remains but one other view of this matter to conclude the point.
The truth is, after all the declamations we have heard, that the
Constitution is itself, in every rational sense, and to every useful
purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain
form its Constitution, and conversely the constitution of each State is
its bill of rights. And the proposed Constitution, if adopted, will be
the bill of rights of the Union. Is it one object of a bill of rights
to declare and specify the political privileges of the citizens in the
structure and administration of the government? This is done in the most
ample and precise manner in the plan of the convention; comprehending
various precautions for the public security, which are not to be found
in any of the State constitutions. Is another object of a bill of rights
to define certain immunities and modes of proceeding, which are relative
to personal and private concerns? This we have seen has also been
attended to, in a variety of cases, in the same plan. Adverting
therefore to the substantial meaning of a bill of rights, it is absurd
to allege that it is not to be found in the work of the convention. It
may be said that it does not go far enough, though it will not be easy
to make this appear; but it can with no propriety be contended that
there is no such thing. It certainly must be immaterial what mode is
observed as to the order of declaring the rights of the citizens, if
they are to be found in any part of the instrument which establishes the
government. And hence it must be apparent, that much of what has been
said on this subject rests merely on verbal and nominal distinctions,
entirely foreign from the substance of the thing.

Another objection which has been made, and which, from the frequency of
its repetition, it is to be presumed is relied on, is of this nature:
"It is improper (say the objectors) to confer such large powers, as
are proposed, upon the national government, because the seat of that
government must of necessity be too remote from many of the States
to admit of a proper knowledge on the part of the constituent, of the
conduct of the representative body." This argument, if it proves any
thing, proves that there ought to be no general government whatever. For
the powers which, it seems to be agreed on all hands, ought to be vested
in the Union, cannot be safely intrusted to a body which is not under
every requisite control. But there are satisfactory reasons to show that
the objection is in reality not well founded. There is in most of
the arguments which relate to distance a palpable illusion of the
imagination. What are the sources of information by which the people in
Montgomery County must regulate their judgment of the conduct of their
representatives in the State legislature? Of personal observation they
can have no benefit. This is confined to the citizens on the spot. They
must therefore depend on the information of intelligent men, in whom
they confide; and how must these men obtain their information? Evidently
from the complexion of public measures, from the public prints, from
correspondences with their representatives, and with other persons who
reside at the place of their deliberations. This does not apply to
Montgomery County only, but to all the counties at any considerable
distance from the seat of government.

It is equally evident that the same sources of information would be open
to the people in relation to the conduct of their representatives in the
general government, and the impediments to a prompt communication which
distance may be supposed to create, will be overbalanced by the effects
of the vigilance of the State governments. The executive and legislative
bodies of each State will be so many sentinels over the persons employed
in every department of the national administration; and as it will be
in their power to adopt and pursue a regular and effectual system of
intelligence, they can never be at a loss to know the behavior of those
who represent their constituents in the national councils, and can
readily communicate the same knowledge to the people. Their disposition
to apprise the community of whatever may prejudice its interests from
another quarter, may be relied upon, if it were only from the rivalship
of power. And we may conclude with the fullest assurance that the
people, through that channel, will be better informed of the conduct of
their national representatives, than they can be by any means they now
possess of that of their State representatives.

It ought also to be remembered that the citizens who inhabit the country
at and near the seat of government will, in all questions that affect
the general liberty and prosperity, have the same interest with those
who are at a distance, and that they will stand ready to sound the alarm
when necessary, and to point out the actors in any pernicious project.
The public papers will be expeditious messengers of intelligence to the
most remote inhabitants of the Union.

Among the many curious objections which have appeared against the
proposed Constitution, the most extraordinary and the least colorable is
derived from the want of some provision respecting the debts due to the
United States. This has been represented as a tacit relinquishment of
those debts, and as a wicked contrivance to screen public defaulters.
The newspapers have teemed with the most inflammatory railings on this
head; yet there is nothing clearer than that the suggestion is entirely
void of foundation, the offspring of extreme ignorance or extreme
dishonesty. In addition to the remarks I have made upon the subject in
another place, I shall only observe that as it is a plain dictate of
common-sense, so it is also an established doctrine of political law,
that "States neither lose any of their rights, nor are discharged
from any of their obligations, by a change in the form of their civil
government."(4)

The last objection of any consequence, which I at present recollect,
turns upon the article of expense. If it were even true, that the
adoption of the proposed government would occasion a considerable
increase of expense, it would be an objection that ought to have no
weight against the plan.

The great bulk of the citizens of America are with reason convinced,
that Union is the basis of their political happiness. Men of sense of
all parties now, with few exceptions, agree that it cannot be preserved
under the present system, nor without radical alterations; that new
and extensive powers ought to be granted to the national head, and that
these require a different organization of the federal government--a
single body being an unsafe depositary of such ample authorities. In
conceding all this, the question of expense must be given up; for it
is impossible, with any degree of safety, to narrow the foundation upon
which the system is to stand. The two branches of the legislature are,
in the first instance, to consist of only sixty-five persons, which is
the same number of which Congress, under the existing Confederation, may
be composed. It is true that this number is intended to be increased;
but this is to keep pace with the progress of the population and
resources of the country. It is evident that a less number would, even
in the first instance, have been unsafe, and that a continuance of the
present number would, in a more advanced stage of population, be a very
inadequate representation of the people.

Whence is the dreaded augmentation of expense to spring? One source
indicated, is the multiplication of offices under the new government.
Let us examine this a little.

It is evident that the principal departments of the administration under
the present government, are the same which will be required under the
new. There are now a Secretary of War, a Secretary of Foreign Affairs, a
Secretary for Domestic Affairs, a Board of Treasury, consisting of
three persons, a Treasurer, assistants, clerks, etc. These officers are
indispensable under any system, and will suffice under the new as well
as the old. As to ambassadors and other ministers and agents in foreign
countries, the proposed Constitution can make no other difference than
to render their characters, where they reside, more respectable,
and their services more useful. As to persons to be employed in the
collection of the revenues, it is unquestionably true that these will
form a very considerable addition to the number of federal officers;
but it will not follow that this will occasion an increase of public
expense. It will be in most cases nothing more than an exchange of State
for national officers. In the collection of all duties, for instance,
the persons employed will be wholly of the latter description. The
States individually will stand in no need of any for this purpose.
What difference can it make in point of expense to pay officers of the
customs appointed by the State or by the United States? There is no good
reason to suppose that either the number or the salaries of the latter
will be greater than those of the former.

Where then are we to seek for those additional articles of expense which
are to swell the account to the enormous size that has been represented
to us? The chief item which occurs to me respects the support of the
judges of the United States. I do not add the President, because there
is now a president of Congress, whose expenses may not be far, if any
thing, short of those which will be incurred on account of the President
of the United States. The support of the judges will clearly be an extra
expense, but to what extent will depend on the particular plan which may
be adopted in regard to this matter. But upon no reasonable plan can it
amount to a sum which will be an object of material consequence.

Let us now see what there is to counterbalance any extra expense that
may attend the establishment of the proposed government. The first thing
which presents itself is that a great part of the business which now
keeps Congress sitting through the year will be transacted by the
President. Even the management of foreign negotiations will naturally
devolve upon him, according to general principles concerted with the
Senate, and subject to their final concurrence. Hence it is evident that
a portion of the year will suffice for the session of both the Senate
and the House of Representatives; we may suppose about a fourth for the
latter and a third, or perhaps half, for the former. The extra business
of treaties and appointments may give this extra occupation to the
Senate. From this circumstance we may infer that, until the House of
Representatives shall be increased greatly beyond its present number,
there will be a considerable saving of expense from the difference
between the constant session of the present and the temporary session of
the future Congress.

But there is another circumstance of great importance in the view of
economy. The business of the United States has hitherto occupied
the State legislatures, as well as Congress. The latter has made
requisitions which the former have had to provide for. Hence it
has happened that the sessions of the State legislatures have been
protracted greatly beyond what was necessary for the execution of the
mere local business of the States. More than half their time has been
frequently employed in matters which related to the United States. Now
the members who compose the legislatures of the several States amount to
two thousand and upwards, which number has hitherto performed what under
the new system will be done in the first instance by sixty-five persons,
and probably at no future period by above a fourth or fifth of that
number. The Congress under the proposed government will do all the
business of the United States themselves, without the intervention of
the State legislatures, who thenceforth will have only to attend to
the affairs of their particular States, and will not have to sit in any
proportion as long as they have heretofore done. This difference in the
time of the sessions of the State legislatures will be clear gain,
and will alone form an article of saving, which may be regarded as an
equivalent for any additional objects of expense that may be occasioned
by the adoption of the new system.

The result from these observations is that the sources of additional
expense from the establishment of the proposed Constitution are much
fewer than may have been imagined; that they are counterbalanced by
considerable objects of saving; and that while it is questionable on
which side the scale will preponderate, it is certain that a government
less expensive would be incompetent to the purposes of the Union.

PUBLIUS

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

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

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

4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections
XIV and XV. Vide also Grotius, Book II, Chapter IX, Sections VIII and
IX.

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: Hamilton begins the penultimate Federalist paper by acknowledging that there are some objections to the Constitution that have not yet been discussed. The most important of the remaining objections is that the Constitution does not contain a bill of rights. It has already been pointed out that several state constitutions do not contain bills of rights, including New York State. Oddly, New York citizens who oppose the federal constitution on the ground that it does into contain a bill of rights have tremendous admiration for their state constitution. These citizens claim that the state constitution does not need a separate bill of rights because the guarantee of individual rights is written into the constitution itself. The same is true of the federal constitution. As was previously shown, many safeguards against the abuse of power are built into the structure of the national government, such as the separation of powers and checks and balances. In this paper, Hamilton contends that he will examine six provisions designed to protect individual liberties. First, to protect the people against executive and judicial abuse of power, the Constitution provides the power to impeach. Second, the writ of habeas corpus shall not be suspended, "unless, when in cases of rebellion or invasion the public safety may require it." Next, Bills of attainder and ex-post-facto laws are prohibited. The great English jurist, Blackstone, believed that prohibiting these types of laws were the two most fundamental individual rights. Fourth, the Constitution states "no title of nobility should be granted by the United States." Hamilton writes that the importance of prohibiting titles of nobility is paramount; if such titles were granted, the very foundation of republican government would be undermined. Fifth, the Constitution guarantees the right to trial by jury in all criminal cases and sixth, treason is very carefully defined in the Constitution. The Constitution supports the distinction between political dissent and treason, it does all it can to prevent working a hardship on the traitor's family. Originally, bills of rights were agreements between kings and their subjects concerning the rights of the people. Kings limited their own power, either under pressure or voluntarily, acknowledging that they were not all-powerful. The best example is the Magna Carta, the charter of English liberties that the barons forcibly obtained from King John in 1215. But one must remember that the proposed Constitution has no force unless the people approve it; there is no need to grant them specific rights. The Preamble of the Constitution is a better recognition of popular rights than all the bills of rights put together. The Constitution is concerned with general political interest and rights, not with specific and minute details of every right. Hamilton argues that a bill of rights would not only be unnecessary, but dangerous. A bill of rights would, for instance, attempt to limit certain governmental powers which are not even granted. Another objection to the Constitution is that the national government will be so far away from the states and the people that the latter will be ignorant of what is going on. The counties in opposition to state governments can make the same argument. There are ways of knowing what the state governments are up to, just as there are ways of knowing what is happening in the nation's capitol; we can evaluate the laws that are passed, correspond with our representatives, read newspaper reports, etc. If this were not so, there would be no division of governmental power whatsoever in a republican form of government. Not only will the people be able to take stock of the national government, the states will act as sentinels or guards; they will keep a watchful eye over all the branches of the national government. This is so because the state and national governments will be rivals for power. Actually, the people will be more fully informed concerning the conduct of their national representative than they are, at present, of the state representatives. There are many curious and extraordinary objections to the Constitution, but one of the strangest, this paper suggests, has to do with debts owed by the states to the United States. Some people have gone so far as to suggest that the Constitution removes the obligations of the states to pay their debts. This claim is ridiculous. Last, there has been an objection concerning the expense of the proposed government. When we consider that most Americans are convinced that Union is vital to their political happiness, that is cannot be preserved under the present system, that new and broad powers ought to be granted to the national government, the question of added dispense seems superficial. Good government is far too important to allow expense to interfere. Undeniably, there will be some added expense, but there will be some savings as well. All in all, Hamilton believes that this is an extremely weak argument.


prompt:
Chapter: Concluding Remarks

From MCLEAN's Edition, New York. Wednesday, May 28, 1788

HAMILTON

To the People of the State of New York:

ACCORDING to the formal division of the subject of these papers,
announced in my first number, there would appear still to remain for
discussion two points: "the analogy of the proposed government to your
own State constitution," and "the additional security which its adoption
will afford to republican government, to liberty, and to property." But
these heads have been so fully anticipated and exhausted in the progress
of the work, that it would now scarcely be possible to do any thing
more than repeat, in a more dilated form, what has been heretofore said,
which the advanced stage of the question, and the time already spent
upon it, conspire to forbid.

It is remarkable, that the resemblance of the plan of the convention
to the act which organizes the government of this State holds, not
less with regard to many of the supposed defects, than to the real
excellences of the former. Among the pretended defects are the
re-eligibility of the Executive, the want of a council, the omission
of a formal bill of rights, the omission of a provision respecting the
liberty of the press. These and several others which have been noted
in the course of our inquiries are as much chargeable on the existing
constitution of this State, as on the one proposed for the Union; and
a man must have slender pretensions to consistency, who can rail at the
latter for imperfections which he finds no difficulty in excusing in the
former. Nor indeed can there be a better proof of the insincerity
and affectation of some of the zealous adversaries of the plan of the
convention among us, who profess to be the devoted admirers of the
government under which they live, than the fury with which they have
attacked that plan, for matters in regard to which our own constitution
is equally or perhaps more vulnerable.

The additional securities to republican government, to liberty and
to property, to be derived from the adoption of the plan under
consideration, consist chiefly in the restraints which the preservation
of the Union will impose on local factions and insurrections, and on
the ambition of powerful individuals in single States, who may acquire
credit and influence enough, from leaders and favorites, to become the
despots of the people; in the diminution of the opportunities to foreign
intrigue, which the dissolution of the Confederacy would invite and
facilitate; in the prevention of extensive military establishments,
which could not fail to grow out of wars between the States in a
disunited situation; in the express guaranty of a republican form of
government to each; in the absolute and universal exclusion of titles
of nobility; and in the precautions against the repetition of those
practices on the part of the State governments which have undermined the
foundations of property and credit, have planted mutual distrust in
the breasts of all classes of citizens, and have occasioned an almost
universal prostration of morals.

Thus have I, fellow-citizens, executed the task I had assigned to
myself; with what success, your conduct must determine. I trust at
least you will admit that I have not failed in the assurance I gave you
respecting the spirit with which my endeavors should be conducted. I
have addressed myself purely to your judgments, and have studiously
avoided those asperities which are too apt to disgrace political
disputants of all parties, and which have been not a little provoked
by the language and conduct of the opponents of the Constitution. The
charge of a conspiracy against the liberties of the people, which has
been indiscriminately brought against the advocates of the plan,
has something in it too wanton and too malignant, not to excite the
indignation of every man who feels in his own bosom a refutation of the
calumny. The perpetual changes which have been rung upon the wealthy,
the well-born, and the great, have been such as to inspire the
disgust of all sensible men. And the unwarrantable concealments and
misrepresentations which have been in various ways practiced to keep
the truth from the public eye, have been of a nature to demand
the reprobation of all honest men. It is not impossible that these
circumstances may have occasionally betrayed me into intemperances of
expression which I did not intend; it is certain that I have frequently
felt a struggle between sensibility and moderation; and if the former
has in some instances prevailed, it must be my excuse that it has been
neither often nor much.

Let us now pause and ask ourselves whether, in the course of these
papers, the proposed Constitution has not been satisfactorily vindicated
from the aspersions thrown upon it; and whether it has not been shown to
be worthy of the public approbation, and necessary to the public safety
and prosperity. Every man is bound to answer these questions to himself,
according to the best of his conscience and understanding, and to act
agreeably to the genuine and sober dictates of his judgment. This is a
duty from which nothing can give him a dispensation. 'T is one that he
is called upon, nay, constrained by all the obligations that form
the bands of society, to discharge sincerely and honestly. No partial
motive, no particular interest, no pride of opinion, no temporary
passion or prejudice, will justify to himself, to his country, or to his
posterity, an improper election of the part he is to act. Let him beware
of an obstinate adherence to party; let him reflect that the object upon
which he is to decide is not a particular interest of the community, but
the very existence of the nation; and let him remember that a majority
of America has already given its sanction to the plan which he is to
approve or reject.

I shall not dissemble that I feel an entire confidence in the arguments
which recommend the proposed system to your adoption, and that I am
unable to discern any real force in those by which it has been opposed.
I am persuaded that it is the best which our political situation,
habits, and opinions will admit, and superior to any the revolution has
produced.

Concessions on the part of the friends of the plan, that it has not a
claim to absolute perfection, have afforded matter of no small triumph
to its enemies. "Why," say they, "should we adopt an imperfect
thing? Why not amend it and make it perfect before it is irrevocably
established?" This may be plausible enough, but it is only plausible. In
the first place I remark, that the extent of these concessions has been
greatly exaggerated. They have been stated as amounting to an admission
that the plan is radically defective, and that without material
alterations the rights and the interests of the community cannot be
safely confided to it. This, as far as I have understood the meaning of
those who make the concessions, is an entire perversion of their sense.
No advocate of the measure can be found, who will not declare as his
sentiment, that the system, though it may not be perfect in every part,
is, upon the whole, a good one; is the best that the present views and
circumstances of the country will permit; and is such an one as promises
every species of security which a reasonable people can desire.

I answer in the next place, that I should esteem it the extreme of
imprudence to prolong the precarious state of our national affairs, and
to expose the Union to the jeopardy of successive experiments, in the
chimerical pursuit of a perfect plan. I never expect to see a perfect
work from imperfect man. The result of the deliberations of all
collective bodies must necessarily be a compound, as well of the errors
and prejudices, as of the good sense and wisdom, of the individuals
of whom they are composed. The compacts which are to embrace thirteen
distinct States in a common bond of amity and union, must as necessarily
be a compromise of as many dissimilar interests and inclinations. How
can perfection spring from such materials?

The reasons assigned in an excellent little pamphlet lately published
in this city,(1) are unanswerable to show the utter improbability
of assembling a new convention, under circumstances in any degree so
favorable to a happy issue, as those in which the late convention met,
deliberated, and concluded. I will not repeat the arguments there used,
as I presume the production itself has had an extensive circulation.
It is certainly well worthy the perusal of every friend to his country.
There is, however, one point of light in which the subject of amendments
still remains to be considered, and in which it has not yet been
exhibited to public view. I cannot resolve to conclude without first
taking a survey of it in this aspect.

It appears to me susceptible of absolute demonstration, that it will
be far more easy to obtain subsequent than previous amendments to the
Constitution. The moment an alteration is made in the present plan, it
becomes, to the purpose of adoption, a new one, and must undergo a new
decision of each State. To its complete establishment throughout the
Union, it will therefore require the concurrence of thirteen States. If,
on the contrary, the Constitution proposed should once be ratified
by all the States as it stands, alterations in it may at any time be
effected by nine States. Here, then, the chances are as thirteen to
nine(2) in favor of subsequent amendment, rather than of the original
adoption of an entire system.

This is not all. Every Constitution for the United States must
inevitably consist of a great variety of particulars, in which thirteen
independent States are to be accommodated in their interests or opinions
of interest. We may of course expect to see, in any body of men charged
with its original formation, very different combinations of the
parts upon different points. Many of those who form a majority on
one question, may become the minority on a second, and an association
dissimilar to either may constitute the majority on a third. Hence the
necessity of moulding and arranging all the particulars which are to
compose the whole, in such a manner as to satisfy all the parties to the
compact; and hence, also, an immense multiplication of difficulties and
casualties in obtaining the collective assent to a final act. The degree
of that multiplication must evidently be in a ratio to the number of
particulars and the number of parties.

But every amendment to the Constitution, if once established, would be
a single proposition, and might be brought forward singly. There would
then be no necessity for management or compromise, in relation to any
other point--no giving nor taking. The will of the requisite number
would at once bring the matter to a decisive issue. And consequently,
whenever nine, or rather ten States, were united in the desire of a
particular amendment, that amendment must infallibly take place. There
can, therefore, be no comparison between the facility of affecting an
amendment, and that of establishing in the first instance a complete
Constitution.

In opposition to the probability of subsequent amendments, it has been
urged that the persons delegated to the administration of the national
government will always be disinclined to yield up any portion of
the authority of which they were once possessed. For my own part I
acknowledge a thorough conviction that any amendments which may, upon
mature consideration, be thought useful, will be applicable to the
organization of the government, not to the mass of its powers; and on
this account alone, I think there is no weight in the observation just
stated. I also think there is little weight in it on another account.
The intrinsic difficulty of governing THIRTEEN STATES at any rate,
independent of calculations upon an ordinary degree of public spirit and
integrity, will, in my opinion constantly impose on the national
rulers the necessity of a spirit of accommodation to the reasonable
expectations of their constituents. But there is yet a further
consideration, which proves beyond the possibility of a doubt, that the
observation is futile. It is this that the national rulers, whenever
nine States concur, will have no option upon the subject. By the fifth
article of the plan, the Congress will be obliged "on the application of
the legislatures of two thirds of the States (which at present amount
to nine), to call a convention for proposing amendments, which shall be
valid, to all intents and purposes, as part of the Constitution, when
ratified by the legislatures of three fourths of the States, or by
conventions in three fourths thereof." The words of this article are
peremptory. The Congress "shall call a convention." Nothing in this
particular is left to the discretion of that body. And of consequence,
all the declamation about the disinclination to a change vanishes in
air. Nor however difficult it may be supposed to unite two thirds or
three fourths of the State legislatures, in amendments which may affect
local interests, can there be any room to apprehend any such difficulty
in a union on points which are merely relative to the general liberty
or security of the people. We may safely rely on the disposition of the
State legislatures to erect barriers against the encroachments of the
national authority.

If the foregoing argument is a fallacy, certain it is that I am myself
deceived by it, for it is, in my conception, one of those rare instances
in which a political truth can be brought to the test of a mathematical
demonstration. Those who see the matter in the same light with me,
however zealous they may be for amendments, must agree in the propriety
of a previous adoption, as the most direct road to their own object.

The zeal for attempts to amend, prior to the establishment of the
Constitution, must abate in every man who is ready to accede to the
truth of the following observations of a writer equally solid and
ingenious: "To balance a large state or society (says he), whether
monarchical or republican, on general laws, is a work of so great
difficulty, that no human genius, however comprehensive, is able, by the
mere dint of reason and reflection, to effect it. The judgments of many
must unite in the work; EXPERIENCE must guide their labor; TIME must
bring it to perfection, and the FEELING of inconveniences must correct
the mistakes which they inevitably fall into in their first trials
and experiments."(3) These judicious reflections contain a lesson of
moderation to all the sincere lovers of the Union, and ought to put
them upon their guard against hazarding anarchy, civil war, a perpetual
alienation of the States from each other, and perhaps the military
despotism of a victorious demagogue, in the pursuit of what they are not
likely to obtain, but from TIME and EXPERIENCE. It may be in me a defect
of political fortitude, but I acknowledge that I cannot entertain an
equal tranquillity with those who affect to treat the dangers of a
longer continuance in our present situation as imaginary. A NATION,
without a NATIONAL GOVERNMENT, is, in my view, an awful spectacle.
The establishment of a Constitution, in time of profound peace, by the
voluntary consent of a whole people, is a PRODIGY, to the completion of
which I look forward with trembling anxiety. I can reconcile it to
no rules of prudence to let go the hold we now have, in so arduous an
enterprise, upon seven out of the thirteen States, and after having
passed over so considerable a part of the ground, to recommence the
course. I dread the more the consequences of new attempts, because I
know that POWERFUL INDIVIDUALS, in this and in other States, are enemies
to a general national government in every possible shape.

PUBLIUS

1. Entitled "An Address to the People of the State of New York."

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

3. Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences."

Q: Can you write an appropriate summary of the above paragraphs?
A:

completion: In this concluding Federalist Paper, Hamilton begins by telling his readers that he will not discuss the remaining two points in his outline, "the analogy of the proposed governments to the states," and "the additional security which this adoption will afford to republican government, to liberty, and to property," because he has already said all that he has to about these subjects. He continues that the Constitution has much in similar to the New York state government, especially in consideration of its defects, including the ability of the president to be reelected, "the want of a council, the omission of a formal bill of rights, and the omission of a provision respecting the liberty of the press." It is ironic that the strongest opponents of the Constitution say that they are happy with the laws of their state, especially because its Constitution contains the same vulnerabilities. Hamilton proceeds to ask the rhetorical question of whether or not the Constitution has been vindicated from the critic's attacks. Although each man must ask this for himself, Hamilton believes that this duty must be taken extremely seriously, because there will be no excuse for the wrong decision, a vote that has grave consequences for the future of the nation. He heeds the individual man to remember not only the magnitude of the decision, but also the fact that the majority of the nation has already approved the Constitution. Continuing, Hamilton admits, "Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph." They ask why they should not make the Constitution perfect before it is adopted. Hamilton answers this critique by claiming that no one can be found who does not believe that the "system is good," and that delay is useless and will only prolong the precarious situation of the nation. In addition, Hamilton contends "I never hope to see a perfect work for imperfect men." It is improbable to have another convention, but Hamilton believes that the subject of amendments has yet to be considered in The Federalist Papers. Hamilton believes that future amendments will be much easier to obtain than changing the Constitution. Amendments, unlike the Constitution itself, will be easier to pass because no compromise or negotiation will be necessary because it will be a singular proposition and not a whole document, like the Constitution. Hamilton concludes by quoting David Hume, "to balance a large state or society, whether monarchial or republican, on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must united in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into their first trials and experiments." Hamilton concludes strongly, saying, "a country without a national government is, in my view, an awful spectacle." On the other hand, a Constitution, established by the people, "is a prodigy," something that he looks forward to with "trembling anxiety." He dreads the consequences of new attempts because men and states are enemies to national governments in every state.