a The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the New Constitution. [This and all footnotes in this volume are by Alexander Hamilton. Annotations by the current editor, Robert A. Ferguson, appear in the endnotes.]
b ASPASIA, vide PLUTARCH’s life of Pericles.
c Madame Madame de Maintenon.
d Duchess of Marlborough.
f THE LEAGUE OF CAMBRAY, comprehending the Emperor, the King of France, the King of Arragon, and most of the Italian Princes and States.
g The Duke of Marlborough.
h Vide Principes des Negotiations par l’Abbe de Mably.
i This objection will be fully examined in its proper place; and it will be shown that the only rational precaution which could have been taken on this subject, has been taken; and a much better one than is to be found in any Constitution that has been heretofore framed in America, most of which contain no guard at all on this subject.
j Spirit of Laws, Vol. I. Book IX. Chap. I.
k Recherches philosophiques sur les Americains.
7
m The subject of this and the two following numbers happened to be taken up by both Mr. H. and Mr. M. What had been prepared by Mr. H. who had entered more briefly into the subject, was left with Mr. M. on its appearing that the latter was engaged in it, with larger materials, and with a view to a more precise delineation; and from the pen of the latter, the several papers went to the Press.
[The above note from the pen of Mr. Madison was written on the margin of the leaf, commencing with the present number, in the copy of the Federalist loaned by him to the publisher.]
n This was but another name more specious for the independence of the members on the federal head.
o Pfeffel, Nouvel abreg. chronol. de l‘hist. etc. d’Allemagne, says, the pretext was to indemnify himself for the expense of the expedition.
p This, as nearly as I can recollect, was the sense of this speech on introducing the last bill.
q Encyclopedia, article Empire.
r New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland, are a majority of the whole number of the States, but they do not contain one third of the people.
s Add New York and Connecticut to the foregoing seven, and they will still be less than a majority.
t This statement of the matter is taken from the printed collections of state constitutions. Pennsylvania and North Carolina are the two which contain the interdiction in these words: “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This is, in truth, rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware and Maryland have, in each of their bills of rights, a clause to this effect: “Standing armies are dangerous to liberty, and ought not be raised or kept up WITHOUT THE CONSENT OF THE LEGISLATURE;” which is a formal admission of the authority of the legislature. New York has no bill of rights, and her constitution says not a word about the matter. No bills of rights appear annexed to the constitutions of the other states, and their constitutions are equally silent. I am told, however, that one or two states have bills of rights, which do not appear in this collection; but that those also recognize the right of the legislative authority in this respect.
u The sophistry which has been employed, to show that this will tend to the destruction of the state governments will, in its proper place, be fully detected.
v Its full efficacy will be examined hereafter.
w The New England states.
x Connecticut and Rhode Island.
y Declaration of Independence.
aa The constitution of this state has been since altered.
ab The constitution of this state has been since altered.
ac Burgh’s Political Disquisitions.
ad 1st Clause, 4th Section of the 1st Article.
ae Particularly in the southern states and in this state.
af In that of New Jersey, also, the final judiciary authority is in a branch of the legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, one branch of the legislature is the court for the trial of impeachments.
ah Article 1, Sec. 3, Clause 1.
aj A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted that the king of Great Britain owes his prerogatives, as commander in chief, to an annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, is immemorial, and was only disputed, “contrary to all reason and precedent,” as Blackstone, vol. 1, page 262, expresses it, by the long parliament of Charles First; but by the statute the 13th of Charles Second, chap. 6, it was declared to be in the king alone, for that the sole supreme government and command of the militia within his majesty’s realms and dominions, and of all forces by sea and land, and of all forts and places of strength, EVER WAS AND is the undoubted right of his majesty and his royal predecessors kings and queens of England, and that both or either house of parliament cannot nor ought to pretend to the same.
ak Vide Blackstone’s Commentaries, vol. 1, page 257.
al Candour however demands an acknowledgment, that I do not think the claim of the governor to a right of nomination well founded. Yet it is always justifiable to reason from the practice of a government, till its propriety has been constitutionally questioned. And independent of this claim, when we take into view the other considerations, and pursue them through all their consequences, we shall be inclined to draw much the same conslusion.
am New York has no council except for the single purpose of appointing to offices; New Jersey has a council, whom the governor may consult. But I think, from the terms of the constitution, their resolutions do not bind him.
ap This was the case with respect to Mr. Fox’s India bill, which was carried in the house of commons, and rejected in the house of lords, to the entire satisfaction, as it is said, of the people.
aq Mr. Abraham Yates, a warm opponent of the plan of the convention, is of this number.
ar This construction has since been rejected by the legislature; and it is now settled in practice, that the power of displacing belongs exclusively to the president.
as The celebrated Montesquieu, speaking of them says, “of the three powers above mentioned, the JUDICIARY is next to nothing.” Spirit of Laws, vol. 1, page 186.
au Vide Protest of the minority of the convention of Pennsylvania, Martin’s speech, &C.
14
av Vide Constitution of Massachusetts, Chap. 2, Sect. 1, Art. 13.
15
ax This power has been absurdly represented as intended to abolish all the county courts in the several states, which are commonly called inferior courts. But the expressions of the constitution are to constitute “tribunals INFERIOR TO THE SUPREME COURT,” and the evident design of the provision is to enable the institution of local courts subordinate to the supreme, either in states or larger districts. It is ridiculous to imagine that county courts were in contemplation.
ay This word is a compound of JUS and DICTIO, juris, dictio or a speaking or pronouncing of the law.
az I hold that the states will have concurrent jurisdiction with the subordinate federal judicatories, in many cases of federal cognizance, as will be explained in the next paper.
bb Section 8th, Article 1st.
bc 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.
bd 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.
be Vide No. LXXXI in which the supposition of its being abolished by the appellate jurisdiction in matters of fact being vested in the supreme court, is examined and refuted.
bf Vide Blackstone’s Commentaries, vol. 1, page 136.
bg Idem. vol. 4, page 438.
bh To show that there is a power in the constitution, by which the liberty of the press may be affected, recourse has been had to the power of taxation. It is said, that duties may be laid upon publications so high as to amount to a prohibition. I know not by what logic it could be maintained, that the declarations in the state constitutions, in favour of the freedom of the press, would be a constitutional impediment to the imposition of duties upon publications by the state legislatures. It cannot certainly be pretended that any degree of duties, however low, would be an abridgment of the liberty of the press. We know that newspapers are taxed in Great Britain, and yet it is notorious that the press no where enjoys greater liberty than in that country. And if duties of any kind may be laid without a violation of that liberty, it is evident that the extent must depend on legislative discretion, regulated by public opinion; so that after all general declarations respecting the liberty of the press, will give it no greater security than it will have without them. The same invasions of it may be effected under the state constitutions which contain those declarations through the means of taxation, as under the proposed constitution, which has nothing of the kind. It would be quite as significant to declare, that government ought to be free, that taxes ought not to be excessive, &c. as that the liberty of the press ought not to be restrained.
bi Vide Rutherford’s Institutes, vol. 2, book II, chap. x, sect. xiv, and xv.... Vide also Grotius, book 11, chap. ix, sect. viii, and ix.
16
bj Entitled “An Address to the people of the state of New York.”
bk It may rather be said TEN, for though two-thirds may set on foot the measure, three-fourths must ratify.
bl Hume’s Essays, vol. 1, page 128.... The rise of arts and sciences.
18