Antifederalist No. 71

THE PRESIDENTIAL TERM OF OFFICE


Part 1:  Luther Martin, The Genuine
Information 
Part 2:  An excerpt from the 18th letter
of "AGRIPPA" appearing in The
Massachusetts Gazette on February 5, 1788.
Part 3: From by "A CUSTOMER" in the Maine
Cumberland Gazette, March 13, 1788.


     .... The second article relates to
the executive-his mode of election, his
powers, and the length of time he should
continue in office.
     On this subject there was a great
diversity of sentiment [at the
Philadelphia constitutional convention]. 
Many of the members were desirous that the
President should be elected for seven
years, and not to be eligible a second
time.  Others proposed that he should not
be absolutely ineligible, but that he
should not be capable of being chosen a
second time, until the expiration of a
certain number of years.  The supporters
of the above proposition went upon the
idea that the best security for liberty
was a limited duration, and a rotation of
office, in the chief executive department.
     There was a party who attempted to
have the President appointed during good
behavior, without any limitation as to
time; and, not being able to succeed in
that attempt, they then endeavored to have
him reeligible without any restraint.  It
was objected that the choice of a
President to continue in office during
good behavior, would at once be rendering
our system an elective monarchy; and that,
if the President was to be reeligible
without any interval of disqualification,
it would amount nearly to the same thing,
since, from the powers that the President
is to enjoy, and the interests and
influence with which they will be
attended, he will be almost absolutely
certain of being reelected from time to
time, as long as he lives.  As the
propositions were reported by the
committee of the whole house, the
President was to be chosen for seven
years, and not to be eligible at any time
after.  In the same manner, the
proposition was agreed to in Convention;
and so it was reported by the committee of
detail, although a variety of attempts
were made to alter that part of the system
by those who were of a contrary opinion,
in which they repeatedly failed; but, sir,
by never losing sight of their object, and
choosing a proper time for their purpose,
they succeeded, at length, in obtaining
the alteration, which was not made until
within the last twelve days before the
Convention adjourned....
     Resolved, that the constitution
lately proposed for the United States be
received only upon the following
conditions. . . .
     The president shall be chosen
annually and shall serve but one year, and
shall be chosen successively from the
different states, changing every year....
                        AGRIPPA

     I have one difficulty in my mind
respecting our admirable Constitution,
which I hope somebody will attempt to
remove.  Art. 3, sect. 1: "The executive
power shall be vested in a President of
the United States of America.  He shall
hold his office during the term of four
years." Here is no declaration that a new
one shall be chosen at the expiration of
that time.  "Congress may determine the
time of choosing the electors; and the day
on which they shall give their votes." But
suppose they should think it for the
public good, after the first election, to
appoint the first Tuesday of September, in
the year two thousand, for the purpose of
choosing the second President; and by law
empower the Chief Justice of the Supreme
Judicial Court to act as President until
that time.  However disagreeable it might
be to the majority of the States, I do not
see but that they are left without a
remedy, provided four States should be
satisfied with the measure.  The President
elected is not to receive any other
emolument; yet the Chief Justice is not
disqualified as a Judge.  Why did our
worthy Chief Justice, at Cambridge the
year past, in his address to the Grand
Jury, call upon them to support "that free
and excellent Constitution, which it has
cost the blood of thousands of our friends
and fellow citizens to establish; that
Constitution which has carefully separated
and distinguished the principal
departments of power, that they might
never combine against the liberty of the
subject"-if it is not a necessary article
in a constitution?  If necessary in a
State constitution, why not in one for the
whole people?  Was it not as easy to have
said the President should be chosen every
fourth year, as to have said the
Representatives shall be chosen every
second year?  The celebrated Mr. King
observes that this is not a confederation
of States-for
the style is in the name of the people. 
Therefore, it appears to me, the rights of
the people should be as well guarded, on
this point, here, as in the constitution
of a State....
                         A CUSTOMER

 

Antifederalist No. 72

ON THE ELECTORAL COLLEGE; ON REELIGIBILITY
OF THE PRESIDENT


     By an anonymous writer "REPUBLICUS,"
appearing in The Kentucky Gazette on March
1, 1788.



     . .  I go now to Art. 2, Sec. 1,
which vest the supreme continental
executive power in a president-in order to
the choice of whom, the legislative body
of each state is empowered to point out to
their constituents some mode of choice, or
(to save trouble) may choose themselves, a
certain number of electors, who shall meet
in their respective states, and vote by
ballot, for two persons, one of whom, at
least, shall not be an inhabitant of the
same state with themselves.  Or in other
words, they shall vote for two, one or
both of whom they know nothing of.  An
extraordinary refinement this, on the
plain simple business of election; and of
which the grand convention have certainly
the honor of being the first inventors;
and that for an officer too, of so much
importance as a president - invested with
legislative and executive powers; who is
to be commander in chief of the army,
navy, militia, etc.; grant reprieves and
pardons; have a temporary negative on all
bills and resolves; convene and adjourn
both houses of congress; be supreme
conservator of laws; commission all
officers; make treaties; and who is to
continue four years, and is only removable
on conviction of treason or bribery, and
triable only by the senate, who are to be
his own council, whose interest in every
instance runs parallel with his own, and
who are neither the officers of the
people, nor accountable to them.
     Is it then become necessary, that a
free people should first resign their
right of suffrage into other hands besides
their own, and then, secondly, that they
to whom they resign it should be compelled
to choose men, whose persons, characters,
manners, or principles they know nothing
of?  And, after all (excepting some such
change as is not likely to happen twice in
the same century) to intrust Congress with
the final decision at last?  Is it
necessary, is it rational, that the sacred
rights of mankind should thus dwindle down
to Electors of electors, and those again
electors of other electors?  This seems to
be degrading them even below the
prophetical curse denounced by the good
old patriarch, on the offspring of his
degenerate son: "servant of servants". . . 
    Again I would ask (considering how
prone mankind are to engross power, and
then to abuse it) is it not probable, at
least possible, that the president who is
to be vested with all this demiomnipotence
- who is not chosen by the community; and
who consequently, as to them, is
irresponsible and independent-that he, I
say, by a few artful and dependent
emissaries in Congress, may not only
perpetuate his own personal
administration, but also make it
hereditary?  By the same means, he may
render his suspensive power over the laws
as operative and permanent as that of G.
the 3d over the acts of the British
parliament; and under the modest title of
president, may exercise the combined
authority of legislation and execution, in
a latitude yet unthought of.  Upon his
being invested with those powers a second
or third time, he may acquire such
enormous influence-as, added to his
uncontrollable power over the army, navy,
and militia; together with his private
interest in the officers of all these
different departments, who are all to be
appointed by himself, and so his
creatures, in the true political sense of
the word; and more especially when added
to all this, he has the power of forming
treaties and alliances, and calling them
to his assistance-that he may, I say,
under all these advantages and almost
irresistible temptations, on some
pretended pique, haughtily and
contemptuously, turn our poor lower house
(the only shadow of liberty we shall have
left) out of doors, and give us law at the
bayonet's point.  Or, may not the senate,
who are nearly in the same situation, with
respect to the people, from similar
motives and by similar means, erect
themselves easily into an oligarchy,
towards which they have already attempted
so large a stride?  To one of which
channels, or rather to a confluence of
both, we seem to be fast gliding away; and
the moment we arrive at it-farewell
liberty. . . .
     To conclude, I can think of but one
source of right to government, or any
branch of it-and that is THE PEOPLE. 
They, and only they, have a right to
determine whether they will make laws, or
execute them, or do both in a collective
body, or by a delegated authority. 
Delegation is a positive actual
investiture.  Therefore if any people are
subjected to an authority which they have
not thus actually chosen-even though they
may have tamely submitted to it-yet it is
not their legitimate government.  They are
wholly passive, and as far as they are so,
are in a state of slavery.  Thank heaven
we are not yet arrived at that state.  And
while we continue to have sense enough to
discover and detect, and virtue en(>ugh to
detest and oppose every attempt, either of
force or fraud, either from without or
within, to bring us into it, we never
will.
     Let us therefore continue united in
the cause of rational liberty.  Let unity
and liberty be our mark as well as our
motto.  For only such an union can secure
our freedom; and division will inevitably
destroy it.  Thus a mountain of sand may
peace meal [sic] be removed by the feeble
hands of a child; but if consolidated into
a rock, it mocks the united efforts of
mankind, and can only fall in a general
wreck of nature.
                    REPUBLICUS



Antifederalist No. 73


DOES THE PRESIDENTIAL VETO POWER INFRINGE
ON THE SEPARATION OF DEPARTMENTS?



"WILLIAM PENN," an anonymous writer 
appeared in the [Philadelphia] Independent
Gazetteer on January 3, 1788.


     . . . I believe that it is
universally agreed upon in this
enlightened country, that all power
residing originally in the people, and
being derived from them, they ought to be
governed by themselves only, or by their
immediate representatives.  I shall not
spend any time in explaining a principle
so well and so generally understood, but I
shall proceed immediately to that which I
conceive to be the next in order.
     The next principle, without which it
must be clear that no free government can
ever subsist, is the DIVISION OF POWER
among those who are charged with the
execution of it.  It has always been the
favorite maxim of princes, to divide the
people, in order to govern them.  It is
now time that the people should avail
themselves of the same maxim, and divide
powers among their rulers, in order to
prevent their abusing it.  The application
of this great political truth, has long
been unknown to the world, and yet it is
grounded upon a very plain natural
principle.  If, says Montesquieu, the same
man, or body of men, is possessed both of
the legislative and executive power, there
is NO LIBERTY, because it may be feared
that the same monarch, or the same senate,
will enact tyrannical laws, in order to
execute them in a tyrannical manner. 
Nothing can be clearer, and the natural
disposition of man to ambition and power
makes it probable that such would be the
consequence.  Suppose for instance, that
the same body, which has the power of
raising money by taxes, is also entrusted
with the application of that money, they
will very probably raise large sums, and
apply them to their own private uses.  If
they are empowered to create offices, and
appoint the officers, they will take that
opportunity of providing for themselves,
and their friends, and if they have the
power of inflicting penalties for
offenses, and of trying the offenders,
there will be no bounds to their tyranny. 
Liberty therefore can only subsist, where
the powers of government are properly
divided, and where the different
jurisdictions are inviolably kept
distinct and separate.'

(1) I shall illustrate this doctrine by an
example.  A burgher of a certain borough
of Switzerland was elected Bailiff, or
Chief Magistrate, for one year, according
to the constitution of the place.  Shortly
after his appointment, he sent for one of
his neighbors, and ordered him to pull off
his boots.  The honest neighbor was
astonished, and attempted to remonstrate,
but the bailiff was determined to exert
his authority, and threatened to send him
to jail, if he did not yield him an
immediate obedience.  The poor man was
forced to comply, for the bailiff was
vested with power, both legislative and
executive.  He pulled off his worship's
boots, but said to him, "When I am
appointed bailiff in my turn, you shall
pull off my boots and clean them too."


    The first and most natural division of
the powers of government are into the
legislative and executive branches. 
These two should never be suffered to have
the least share of each other's
jurisdiction, or to intermeddle with it in
any manner.  For whichever of the two
divides its power with the other, will
certainly be subordinate to it; and if
they both have a share of each other's
authority, they will be in fact but one
body.  Their interest as well as their
powers will be the same, and they will
combine together against the people.
     It is therefore a political error of
the greatest magnitude, to allow the
executive power a negative, or in fact any
kind of control over the proceedings of
the legislature.  The people of Great
Britain have been so sensible of this
truth, that since the days of William III,
no king of England has dared to exercise
the negative over the acts of the two
houses of parliament, to which he is
clearly entitled by his prerogative.
     This doctrine is not novel in
America; it seems on the contrary to be
everywhere well understood and admitted
beyond controversy.  In the bills of
rights or constitutions of New-Hampshire,
Massachusetts, Maryland, Virginia, North-
Carolina and Georgia, it is expressly
declared, "That the legislative, executive
and judicial departments, shall be forever
separate and distinct from each other." In
Pennsylvania and Delaware, they are
effectually separated without any
particular declaration of the principle. 
In the other states indeed, the executive
branch possesses more or less of the
executive power.  And here it must appear
singular that the state of Massachusetts-
where the doctrine of a separate
jurisdiction is most positively
established, and in whose bill of rights
these remarkable words are to be found,
"The executive shall never exercise the
legislative and judicial powers, or either
of them, to the end it may be a government
of laws and not of men" (sect. 30) -yet in
that commonwealth and New-Hampshire, the
executive branch, which consists of a
single magistrate, has more control over
the legislature than in any other state. 
For there, if the governor refuses his
assent to a bill, it cannot be passed into
a law, unless two thirds of the house
afterwards concur.  In New York the same
power is given to a Council of Revision,
consisting of the Governor, the Chancellor
and judges of the Supreme Court, or any
three of them, of which the Governor is to
be one.  In Rhode-Island and Connecticut,
whose governments were established before
the revolution, the Governor has a single
vote as a member of the upper house, and
New Jersey has adopted this part of their
constitution.  In Georgia the laws are to
be revised by the Governor and Council,
but they can do no more than give their
opinion upon them.  In Maryland the bills
are to be signed by the Governor before
they can be enacted; and in South-Carolina
they are to be sealed with the great sea],
which is in the Governor's custody.  But
in the first of these states, the
constitution prescribes that the Governor
shall sign the bills; and in the latter, a
joint committee of both houses of
legislature is to wait upon the chief
magistrate to receive and return the great
seat, which implies that he is bound to
deliver it to them, for the special
purpose of affixing it to the laws of the
state.  Pennsylvania has proceeded upon a
much more rational ground, their
legislature having a particular seal of
their own, and their laws requiring only
to be signed by the speaker.  It in
Maryland or South-Carolina a difference
should ever arise between the legislature
and the Governor, and the latter should
refuse to sign the laws, or to deliver the
great seal, the most fatal consequences
might ensue.
     Here then we see the great leading
principle of the absolute division of the
legislative from the executive
jurisdiction, admitted in almost every one
of the American states as a fundamental
maxim in the politics of a free country. 
The theory of this general doctrine is
everywhere established, though a few
states have somewhat swerved from it in
the practice.  From whence we must
conclude, that even the knowledge and full
conviction of a new political truth will
not always immediately conquer inveterate
habits and prejudices.  The idea of the
negative, which the constitution of
England gives to the monarch over the
proceedings of the other branches of
parliament, although it has so long
become obsolete, has had an effect upon
timid minds, and upon the minds of those
who could not distinguish between the form
and spirit of the British constitution. 
They would not grant to the executive
branch an absolute negative over the
legislature, but yet they tried every
method to introduce something similar to
it.  They reprobated the doctrine in the
most express words, and yet they could not
bear to part entirely with it.  It is
curious to observe how many different ways
they have endeavored to conciliate truth
with prejudice.  Of those states who have
allowed the executive branch to
intermeddle with the proceedings of the
legislature, no two (New Hampshire and
Massachusetts excepted) have done it
exactly in the same manner.  They have
tried every possible medium, but having
lost sight of the original principle which
they had already established, and which
alone could have been their safest guide,
they groped about in the dark, and could
not find any solid ground on which to
establish a general rule.  Like Noah's
dove, being once out of the ark of truth,
they could not find elsewhere a place to
rest their feet.
     These facts will no doubt afford an
interesting page in the history of the
contradictions of the human mind. 
Unfortunately, they do not stand single,
and this is not the only instance that we
find in the constitutions of the different
states, of a general principle being
expressly declared as a part of the
natural rights of the citizens, and
afterwards being as expressly contradicted
in the practice.  Thus we find it declared
in every one of our bills of rights, "that
there shall be a perfect liberty of
conscience, and that no sect shall ever be
entitled to a preference over the others."
Yet in Massachusetts and Maryland, all the
officers of government, and in
Pennsylvania the members of the
legislature, are to be of the Christian
religion; in New-Jersey, North-Carolina,
and Georgia, the Protestant, and in
Delaware, the trinitarian sects, have an
exclusive right to public employment; and
in South-Carolina the constitution goes so
far as to declare the creed of the
established church.  Virginia and New-York
are the only states where there is a
perfect liberty of conscience.  I cannot
say any thing as to Connecticut and
Rhode-Island, as their constitutions are
silent on the subject, and I have not been
informed of their practice.
     Whether these religious restrictions
are right or wrong, it is not my
intention, nor is it my object to examine
in the course of these disquisitions.  I
only meant to show, that in laying down a
political system it is safer to rely on
principles than upon precedents, because
the former are -fixed and immutable, while
the latter vary with men, places, times
and circumstances.
                  WILLIAM PENN

 


Antifederalist No. 74

THE PRESIDENT AS MILITARY KING


"PHILADELPHIENSIS," who was influenced by
Thomas Paine (in "Common Sense), wrote the
following selection.  It is taken from 3
essays which appearing February 6 & 20,
and April 9 of 1788 in either The
Freeman's Journal or, The North-American
Intelligencer.



     Before martial law is declared to be
the supreme law of the land, and your
character of free citizens be changed to
that of the subjects of a military
king-which are necessary consequences of
the adoption of the proposed constitution
- let me admonish you in the name of
sacred liberty, to make a solemn pause. 
Permit a freeman to address you, and to
solicit your attention to a cause wherein
yourselves and your posterity are
concerned.  The sun never shone upon a
more important one.  It is the cause of
freedom@f a whole continent@f yourselves
and of your fellow men. . . .
     A conspiracy against the freedom of
America, both deep and dangerous, has been
formed by an infernal junto of demagogues. 
Our thirteen free commonwealths are to be
consolidated into one despotic monarchy. 
Is not this position obvious?  Its
evidence is intuitive . . . . Who can deny
but the president general will be a king
to all intents and purposes, and one of
the most dangerous kind too-a king elected
to command a standing army.  Thus our laws
are to be administered by this tyrant; for
the whole, or at least the most important
part of the executive department is put in
his hands.
     A quorum of 65 representatives, and
of 26 senators, with a king at their head,
are to possess powers that extend to the
lives, the liberties, and property of
every citizen of America.  This novel
system of government, were it possible to
establish it, would be a compound of
monarchy and aristocracy, the most
accursed that ever the world witnessed. 
About 50 (these being a quorum) of the
well born, and a military king, with a
standing army devoted to his will, are to
have an uncontrolled power. . . .
     There is not a tincture of democracy
in the proposed constitution, except the
nominal elections of the president general
and the illustrious Congress be supposed
to have some color of that nature.  But
this is a mere deception, invented to gull
the people into its adoption.  Its framers
were well aware that some appearance of
election ought to be observed, especially
in regard to the first Congress; for
without such an appearance there was not
the smallest probability of their having
it organized and set in operation.  But
let the wheels of this government be once
cleverly set in motion, and I'll answer
for it, that the people shall not be much
troubled with future elections, especially
in choosing their king-the standing army
will do that business for them.
     The thoughts of a military officer
possessing such powers, as the proposed
constitution vests in the president
general, are sufficient to excite in the
mind of a freeman the most alarming
apprehensions; and ought to rouse him to
oppose it at all events.  Every freeman
of America ought to hold up this idea to
himself: that he has no superior but God
and the laws.  But this tyrant will be so
much his superior, that he can at any time
he thinks proper, order him out in the
militia to exercise, and to march when and
where he pleases.  His officers can
wantonly inflict the most disgraceful
punishment on a peaceable citizen, under
pretense of disobedience, or the smallest
neglect of militia duty. . . .
     The President-general, who is to be
our king after this government is
established, is vested with powers
exceeding those of the most despotic
monarch we know of in modern times.  What
a handsome return have these men [the
authors of the Constitution made to the
people of America for their confidence! 
Through the misconduct of these bold
conspirators we have lost the most
glorious opportunity that any country ever
had to establish a free system of
government.  America under one purely
democratical, would be rendered the
happiest and most powerful nation in the
universe.  But under the proposed one
composed of an elective king and a
standing army, officered by his
sycophants, the starvelings of the
Cincinnati, and an aristocratical Congress
of the well-born-an iota of happiness,
freedom, or national strength cannot
exist.  What a pitiful figure will these
ungrateful men make in history; who, for
the hopes of obtaining some lucrative
employment, or of receiving a little more
homage from the rest of their fellow
creatures, framed a system of oppression
that must involve in its consequences the
misery of their own offspring....
     Some feeble attempts have been made
by the advocates of this system of
tyranny, to answer the objections made
to the smallness of the number of
representatives and senators, and the
improper powers delegated to them.  But,
as far as I recollect, no one has been
found bold enough to stand forth in
defense of that dangerous and uncontrolled
officer, the President-General, or more
properly, our new King.
     A few pieces under the signature of
An American Citizen' were published
immediately after the Constitution broke
the shell, and the hydra made its way from
the dark conclave into the open light.  In
the first number the writer, in touching
on the President, endeavored to conceal
his immense powers, by representing the
King of Great Britain as possessed of many
hereditary prerogatives, rights and powers
that he was not possessed of; that is, he
shows what he is not, but neglects to show
what he really is.  But so flimsy a
palliative could scarce escape the censure
of the most ignorant advocate for such an
officer; and since [then] we hear of no
further attempts to prove the necessity of
a King being set over the freemen of
America.
     The writer of these essays has
clearly proven, that the President is a
King to all intents and purposes, and at
the same time one of the most dangerous
kind too - an elective King, the commander
in chief of a standing army, etc.  And
to those add, that he has a negative power
over the proceedings of both branches of
the legislature.  And to complete his
uncontrolled sway, he is neither
restrained nor assisted by a privy
council, which is a novelty in government. 
I challenge the politicians of the whole
continent to find in any period of history
a monarch more absolute. . . .
                 PHILADELPHIENSIS



Antifederalist No. 75

A NOTE PROTESTING THE TREATY-MAKING
PROVISIONS OF THE CONSTITUTION

    The following essay was penned
anonymously by "HAMPDEN," and it appeared
in The Pittsburgh Gazette on February 16,
1788.



     .... It may be freely granted, that
from a mistaken zeal in favor of that
political liberty which was so recently
purchased at so costly a rate, even good
men may give it [the constitution]
unreasonable opposition; but such men
cannot be reasonably charged with
sordid personal interest as their
motive-because it is great and sudden
changes which produces opportunities of
preferment.  But that class of men-who
either prompted by their own ambition or
desperate fortunes, are expecting
employments under the proposed plan; or
those weak and ardent men who always
expect to be gainers by revolutions, and
who are never contented, but always
hastening from one difficulty to another-
may be expected to ascribe every
excellence to the proposed system, and to
urge a thousand reasons for our real or
supposed distresses, to induce our
adopting thereof.  Such characters may
also be expected to promise us such
extravagantly flattering advantages to
arise from it, as if it was accompanied
with such miraculous divine energy as
divided the Red Sea, and spoke with
thunder on Mount Sinai. . . .
     The first clause of the constitution
assures us, that the legislative powers
shall be vested in a Congress, which shall
consist of a senate and house of
representatives; and in the second clause
of the second article, it is declared that
the president, by and with the consent of
the senate, is to make treaties.  Here the
supreme executive magistrate is officially
connected with the highest branch of the
legislature.  And in article sixth, clause
second, we find that all treaties made, or
which shall be made, under the authority
of the United States, shall be the supreme
law of the land, and the judges in every
state shall be bound thereby, anything in
the constitution or laws of any state to
the contrary notwithstanding.  When we
consider the extent of treaties-that in
filing the tariff of trade, the imposts
and port duties generally are or may be
fixed by a large construction which
interested rulers are never at a less
to give to any constitutional power-
treaties may be extended to almost every
legislative object of the general
government.  Who is it that does not know,
that by treaties in Europe the succession
and constitution of many sovereign states,
has been regulated.  The partition treaty,
and the war of the grand alliance,
respecting the government of Spain, are
well remembered; nor is it long since
three neighboring powers established a
nobleman of that nation upon the throne
and regulated and altered the fundamental
laws of that country, as well as divided
the territory thereof, and all this was
done by treaty.  And from this power of
making treaties, the house of
representatives, which has the best chance
of possessing virtue, and public
confidence, is entirely excluded. 
Indeed, I see nothing to hinder the
president and senate, at a convenient
crisis, to declare themselves hereditary
and supreme, and the lower house
altogether useless, and to abolish what
shadow of the state constitutions remain
by this power alone; and as the president
and senate have all that influence which
arises from the creating and appointing
of all offices and officers, who can doubt
but at a proper occasion they will succeed
in such an attempt?  And who can doubt but
that men will arise who will attempt it? 
Will the doing so be a more flagrant
breach of trust, or a greater degree of
violence and perfidy, than has already
been practised in order to introduce the
proposed plan? . . . Of the same kind, and
full as inconsistent and dangerous, is the
first clause of the second article,
compared with the second clause of the
second section.  We first find the
president fully and absolutely vested with
the executive power, and presently we find
the most important and most influential
portion of the executive power-e.g., the
appointment of all officers-vested in the
senate, with whom the president only acts
as a nominating member.  It is on this
account that I have said above, that the
greatest degree of virtue may be expected
in the house of representatives; for if
any considerable part of the executive
power be joined with the legislature, it
will as surely corrupt that branch with
which it is combined, as poison will the
human body.  Therefore, though the small
house of representatives will consist of
the natural aristocracy of the country, as
well as the senate, yet not being
dangerously combined with the executive
branch, it has not such certain
influential inducements to corruption. . . 
    It will be asked, no doubt, who is
this that dares so boldly to arraign the
conduct and censure the production of a
convention composed of so chosen a band of
patriots?  To this I answer, that I am a
freeman, and it is the character of
freemen to examine and judge for
themselves.  They know that implicit faith
respecting politics is the handmaid to
slavery; and that the greatness of those
names who frame a government, cannot
sanctify its faults, nor prevent the evils
that result from its imperfections. . . .
     With respect to the majority, I do
not doubt the testimony of a dignified
supporter of the system, that they were
all, or nearly all, eminent lawyers; but I
do doubt the patriotism and political
virtue of several of the most eminently
active of them.  But it is not with the
men, but with the plan to which they gave
birth, we have to contend, and to contend
with such a degree of moderation and
firmness, as will best promote political
security, shall be the endeavor of
                  HAMPDEN
 


Antifederalist Nos. 76-77

AN ANTIFEDERALIST VIEW OF THE APPOINTING
POWER UNDER THE CONSTITUTION

by Richard Henry Lee


     . . . . In contemplating the
necessary officers of the union, there
appear to be six different modes in which,
in whole or in part, the appointments may
be made. 1. by the legislature; 2. by the
president and the senate; 3. by the
president and an executive council; 4. by
the president alone; 5. by the heads of
the departments; 6. by the state
governments.  Among all these, in my
opinion, there may be an advantageous
distribution of the power of appointments.
     In considering the legislators, in
relation to the subject before us, two
interesting questions particularly arise:
1. whether they ought to be eligible to
hold any offices whatever during the
period for which they shall be elected to
serve, and even for some time afterwards.
2. how far they ought to participate in
the power of appointments.  As to the
first, it is true that legislators in
foreign countries, or in our state
governments, are not generally made
ineligible to office.  There are good
reasons for it.  In many countries the
people have gone on without ever examining
the principles of government.  There have
been but few countries in which the
legislators have been a particular set of
men periodically chosen.  But the
principal reason is, that which operates
in the several states, viz., the
legislators are so frequently chosen, and
so numerous, compared with the number of
offices for which they can reasonably
consider themselves as candidates, that
the chance of any individual member's
being chosen, is too small to raise his
hopes or expectations, or to have any
considerable influence upon his conduct. 
Among the state legislators, one man in
twenty may be appointed in some committee
business, etc., for a month or two; but on
a fair computation, not one man in a
hundred sent to the state legislatures is
appointed to any permanent office of
profit.  Directly the reverse of this will
evidently be found true in the federal
administration.  Throughout the United
States, about four federal senators, and
thirty-three representatives, averaging
the elections, will be chosen in a year. 
These few men may rationally consider
themselves as the fairest candidates for a
very great number of lucrative offices,
which must become vacant in the year; and
pretty clearly a majority of the federal
legislators, if not excluded, will be mere
expectants for public offices.  I need not
adduce further arguments to establish a
position so clear.  I need only call to
your recollection my observations in a
former letter, wherein I endeavored to
show the fallacy of the argument, that the
members must return home and mix with the
people.  It is said, that men are governed
by interested motives, and will not attend
as legislators, unless they can, in common
with others, be eligible to offices of
honor and profit.  This will undoubtedly
be the case with some men, but I presume
only with such men as never ought to be
chosen legislators in a free country.  An
opposite principle will influence good
men.  Virtuous patriots, and generous
minds, will esteem it a higher honor to be
selected as the guardians of a free
people.  They will be satisfied with a
reasonable compensation for their time and
service; nor will they wish to be within
the vortex of influence.  The valuable
effects of this principle of making
legislators ineligible to offices for a
given time, has never yet been
sufficiently attended to or considered.  I
am assured that it was established by the
convention after long debate, and
afterwards, on an unfortunate change
of a few members, altered.  Could the
federal legislators be excluded in the
manner proposed, I think it would be an
important point gained; as to themselves,
they would be left to act much more from
motives consistent with the public good.
In considering the principle of rotation I
had occasion to distinguish the condition
of a legislator from that of a mere
official man.  We acquire certain habits,
feelings, and opinions, as men and
citizens-others, and very different ones,
from a long continuance in office.  It is,
therefore, a valuable observation in many
bills of rights, that rulers ought
frequently to return and mix with the
people.  A legislature, in a free country,
must be numerous; it is in some degree a
periodical assemblage of the people,
frequently formed.  The principal officers
in the executive and judicial departments
must have more permanency in office. 
Hence it may be inferred, that the
legislature will remain longer uncorrupted
and virtuous; longer congenial to the
people, than the officers of those
departments.  If it is not, therefore in
our power to preserve republican
principles for a series of ages, in all
the departments of government, we may
a long while preserve them in a well
formed legislature.  To this end we ought
to take every precaution to prevent
legislators becoming mere office-men;
choose them frequently, make them
recallable, establish rotation among them,
make them ineligible to offices, and give
them as small a share as possible in the
disposal of them.  Add to this, a
legislature in the nature of things is not
formed for the detail business of
appointing officers, there is also
generally an impropriety in the same men
making offices and filling them, and a
still greater impropriety in their
impeaching and trying the officers they
appoint.  For these and other reasons, I
conclude the legislature is not a proper
body for the appointment of officers in
general.  But having gone through with the
different modes of appointment, I shall
endeavor to show what share in the
distribution of the power of appointments
the legislature must, from necessity,
rather than from propriety, take.
    2. Officers may be appointed by the
president and senate.  This mode, for
general purposes, is clearly not
defensible.  All the reasoning touching
the legislature will apply to the senate. 
The senate is a branch of the legislature,
which ought to be kept pure and unbiased. 
It has a part in trying officers for
misconduct, and in creating offices it is
too numerous for a council of appointment,
or to feel any degree of responsibility. 
If it has an advantage of the legislature,
in being the least numerous, it has a
disadvantage in being more unsafe; add to
this, the senate is to have a share in the
important branch of power respecting
treaties.  Further, this sexennial senate
of 26 members, representing 13 sovereign
states, will not in practice be found to
be a body to advise, but to order and
dictate in fact; and the president will be
a mere primus inter pares.  The
consequence will be that the senate, with
these efficient means of influence, will
not only dictate, probably, to the
president, but manage the house, as the
constitution now stands; and under
appearances of a balanced system, in
reality govern alone.  There may also, by
this undue connection, be particular
periods when a very popular president may
have a very improper influence upon the
senate and upon the legislature.  A
council of appointment must very probably
sit all, or near all, the year.  The
senate will be too important and too
expensive a body for this.  By giving the
senate, directly or indirectly, an undue
influence over the representatives, and
the improper means of fettering,
embarrassing, or controlling the president
or executive, we give the government in
the very outset a fatal and pernicious
tendency to . . . aristocracy.  When we,
as a circumstance not well to be avoided,
admit the senate to a share of power in
making treaties, and in managing foreign
concerns, we certainly progress full far
enough towards this most undesirable point
in government.  For with this power, also,
I believe, we must join that of appointing
ambassadors, other foreign ministers, and
consuls, being powers necessarily
connected.  In every point of view, in
which I can contemplate this subject, it
appears extremely clear to me, that the
senate ought not generally to be a council
of appointment.  The legislature, after
the people, is the great fountain of
power, and ought to be kept as pure and
uncorrupt as possible, from the
hankerings, biases, and contagion of
offices.  Then the streams issuing from it
will be less tainted with those evils.  It
is not merely the number of impeachments,
that are to be expected to make public
officers honest and attentive in their
business.  A general opinion must pervade
the community, that the house, the body to
impeach them for misconduct, is
disinterested, and ever watchful for the
public good; and that the judges who shall
try impeachments, will not feel a shadow
of bias.  Under such circumstances men
will not dare transgress, who, not
deterred by such accusers and judges,
would repeatedly misbehave.  We have
already suffered many and extensive evils,
owing to the defects of the confederation,
in not providing against the misconduct of
public officers.  When we expect the law
to be punctually executed, not one man in
ten thousand will disobey it.  It is the
probable chance of escaping punishment
that induces men to transgress.  It is one
important means to make the government
just and honest, rigidly and constantly to
hold before the eyes of those who execute
it, punishment and dismissal from office
for misconduct.  These are principles no
candid man who has just ideas of the
essential features of a free government
will controvert.  They are, to be sure, at
this period, called visionary, speculative
and anti-governmental-but in the true
style of courtiers, selfish politicians,
and flatterers of despotism.  Discerning
republican men of both parties see their
value.  They are said to be of no value by
empty boasting advocates for the
constitution, who, by their weakness and
conduct, in fact, injure its cause much
more than most of its opponents.  From
their high sounding promises, men are led
to expect a defense of it, and to have
their doubts removed.  When a number of
long pieces appear, they, instead of the
defense, etc., they expected, see nothing
but a parade of names; volumes written
without ever coming to the point; cases
quoted between which and ours there is not
the least similitude; and partial extracts
made from histories and governments,
merely to serve a purpose.  Some of them,
like the true admirers of royal and
senatorial robes, would fain prove, that
nations who have thought like free-men and
philosophers about government, and
endeavored to be free, have often been the
most miserable.  If a single riot in the
course of five hundred years happened in a
free country; if a salary or the interest
of a public or private debt was not paid
at the moment-they seem to lay more stress
upon these trifles (for trifles they are
in a free and happy country), than upon
the oppressions of despotic government for
ages together.  As to the lengthy writer
in New York, I have attentively examined
his pieces.  He appears to be a candid
good hearted man, to have a good style and
some plausible ideas.  But when we
carefully examine his pieces, to see where
the strength of them lies-when the mind
endeavors to fix on those material parts,
which ought to be the essence of all
voluminous productions-we do not find
them.  The writer appears constantly to
move on a smooth surface, the part of his
work like the parts of a cob-house, are
all equally strong and all equally weak,
and all like those works of the boys,
without an object.  His pieces appear to
have but little relation to the great
question, whether the constitution is
fitted to the condition and character of
this people or not.
     But to return. 3. Officers may be
appointed by the president and an
executive council.  When we have assigned
to the legislature the appointment of a
few important officers; to the president
and senate the appointment of those
concerned in managing foreign affairs; to
the state governments the appointment of
militia officers; and authorise the
legislature, by legislative acts, to
assign to the president alone, to the
heads of the departments, and courts of
law respectively, the appointment of many
inferior officers-we shall then want to
lodge some where a residuum of power,
a power to appoint all other necessary
officers, as established by law.  The
fittest receptacle for this residuary
power is clearly, in my opinion, the first
executive magistrate, advised and directed
by an executive council of seven or nine
members, periodically chosen from such
proportional districts as the union may
for the purpose be divided into.  The
people may give their votes for twice the
number of counsellors wanted, and the
federal legislature take twice the
number also from the highest candidates,
and from among them choose the seven or
nine, or number wanted.  Such a council
may be rationally formed for the business
of appointments; whereas the senate,
created for other purposes, never can be. 
Such councils form a feature in some of
the best executives in the union.  They
appear to be essential to every first
magistrate, who may frequently want
advice.
     To authorise the president to appoint
his own council would be unsafe.  To give
the sole appointment of it to the
legislature would confer an undue and
unnecessary influence upon that branch. 
Such a council for a year would be less
expensive than the senate for four months. 
The president may nominate, and the
counsellors always be made responsible for
their advice and opinions, by recording
and signing whatever they advise to be
done.  They and the president, to many
purposes, will properly form an
independent executive branch; have an
influence unmixed with the legislative,
which the executive never can have while
connected with a powerful branch of the
legislature.  And yet the influence
arising from the power of appointments be
less dangerous, because in less dangerous
hands-hands properly adequate to possess
it.  Whereas the senate, from its
character and situation, will add a
dangerous weight to the power itself, and
be far less capable of responsibility,
than the council proposed.  There is
another advantage: the residuum of power
as to appointments, which the president
and council need possess, is less than
that the president and senate must have. 
And as such a council would render the
sessions of the senate unnecessary many
months in the year, the expenses of the
government would not be increased, if they
would not be lessened by the institution
of such a council.  I think I need not
dwell upon this article, as the fitness of
this mode of appointment will perhaps
amply appear by the evident unfitness of
the others.
     4. Officers may be appointed by the
president alone.  It has been almost
universally found, when a man has
been authorized to exercise power alone,
he has never done it alone; but,
generally, [was] aided [in] his
determinations by, and rested on the
advice and opinions of others.  And it
often happens when advice is wanted,
the worst men, the most interested
creatures obtrude themselves, the worst
advice is at hand, and misdirects the mind
of him who would be informed and advised. 
It is very seldom we see a single
executive depend on accidental advice
and assistance; but each single executive
has, almost always, formed to itself a
regular council, to be assembled and
consulted on important occasions.  This
proves that a select council, of some kind
is, by experience, generally found
necessary and useful.  But in a free
country, the exercise of any considerable
branch of power ought to be under some
checks and controls.  As to this point, I
think the constitution stands well.  The
legislature may, when it shall deem it
expedient, from time to time, authorise
the president alone to appoint particular
inferior officers; and when necessary, to
take back the power.  His power,
therefore, in this respect, may always be
increased or decreased by the legislature,
as experience, the best instructor, shall
direct-always keeping him, by the
constitution, within certain bounds.
Officers, in the fifth place, may be
appointed by the heads of departments or
courts of law.  Art. 2., Sect. 2.,
respecting appointments, goes on-"But
congress may by law vest the appointment
of such inferior officers as they think
proper in the president alone, in the
courts of law, or in the heads of
departments." The probability is, as the
constitution now stands, that the Senate,
a branch of the legislature, will be
tenacious of the power of appointment, and
much too sparingly part with a share of it
to the courts of law, and heads of
departments.  Here again the impropriety
appears of the senate's having, generally,
a share in the appointment of officers. 
We may fairly assume, that the judges and
principal officers in the departments will
be able well informed men in their
respective branches of business; that they
will, from experience, be best informed as
to proper persons to fill inferior offices
in them; that they will feel themselves
responsible for the execution of their
several branches of business, and for the
conduct of the officers they may appoint
therein.  From these, and other
considerations, I think we may infer, that
impartial and judicious appointments of
subordinate officers will, generally, be
made by the courts of law, and the heads
of departments.  This power of
distributing appointments, as
circumstances may require, into several
hands, in a well formed disinterested
legislature, might be of essential service
not only in promoting beneficial
appointments, but also in preserving the
balance in government.  A feeble executive
may be strengthened and supported by
placing in its hands more numerous
appointments; an executive too influential
may be reduced within proper bounds,
by placing many of the inferior
appointments in the courts of law, and
heads of departments; nor is there much
danger that the executive will be wantonly
weakened or strengthened by the
legislature by thus shifting the
appointments of inferior officers.  Since
all must be done by legislative acts which
cannot be passed without the consent of
the executive, or the consent of two-
thirds of both branches, a good
legislature will use this power to
preserve the balance and perpetuate the
government.  Here again we are brought
to our ultimatum-is the legislature so
constructed as to deserve our confidence?
     6. Officers may be appointed by the
state governments.  By Art. 1., Sect.  S.,
the respective states are authorised
exclusively to appoint the militia
officers.  This not only lodges the
appointments in proper places, but it also
tends to distribute and lodge in different
executive hands the powers of appointing
to offices, so dangerous when collected
into the hands of one or a few men.
     It is a good general rule, that the
legislative, executive, and judicial
powers, ought to be kept distinct.  But
this, like other general rules, has its
exceptions; and without these exceptions
we cannot form a good government, and
properly balance its parts.  And we can
determine only from reason, experience and
a critical inspection of the parts of the
government, how far it is proper to
intermix those powers.  Appointments, I
believe, in all mixed governments, have
been assigned to different hands-some are
made by the executive, some by the
legislature, some by the judges, and some
by the people.  It has been thought
advisable by the wisest nations-that the
legislature should so far exercise
executive and judicial powers as to
appoint some officers judge of the
elections of its members, and impeach and
try officers for misconduct; that the
executive should have a partial share in
legislation; and that judges should
appoint some subordinate officers, and
regulate so far as to establish rules for
their own proceedings.  Where the members
of the government, as the house, the
senate, the executive, and judiciary, are
strong and complete, each in itself, the
balance is naturally produced; each party
may take the powers congenial to it, and
we have less need to be anxious about
checks, and the subdivision of powers.
     If after making the deductions
already alluded to, from the general power
to appoint federal officers, the residuum
shall be thought to be too large and
unsafe, and to place an undue influence in
the hands of the president and council, a
further deduction may be made, with many
advantages and perhaps with but a few
inconveniencies-and that is, by giving the
appointment of a few great officers to the
legislature-as of the commissioners of the
treasury, of the comptroller, treasurer,
master coiner, and some of the principal
officers in the money department; of the
sheriffs or marshalls of the United
States; of states attorneys, secretary of
the home department, and secretary of war;
perhaps of the judges of the supreme
court; of major generals and admirals. 
The appointments of these officers, who
may be at the heads of the great
departments of business, in carrying into
execution the national system, involve in
them a variety of considerations.  They
will not often occur and the power to make
them ought to remain in safe hands. 
Officers of the above description are
appointed by the legislatures in some of
the states, and in some not.  We may, I
believe, presume that the federal
legislature will possess sufficient
knowledge and discernment to make
judicious appointments.  However, as these
appointments by the legislature tend to
increase a mixture of power, to lessen
the advantages of impeachments and
responsibility, I would by no means
contend for them any further than it may
be necessary for reducing the power of the
executive within the bounds of safety.
            THE FEDERAL FARMER



Antifederalist Nos. 78-79

THE POWER OF THE JUDICIARY  (PART 1)

Part one is taken from the first part of
the "Brutus's" 15th essay of The New-York
Journal on March 20, 1788; 
Part two is part one of his 16th of the
New York Journal of April 10, 1788.



     The supreme court under this 
constitution would be exalted above all
other power in the government, and subject
to no control.  The business of this paper
will be to illustrate this, and to show
the danger that will result from it.  I
question whether the world ever saw, in
any period of it, a court of justice
invested with such immense powers, and
yet placed in a situation so little
responsible.  Certain it is, that in
England, and in the several states, where
we have been taught to believe the courts
of law are put upon the most prudent
establishment, they are on a very
different footing.
     The judges in England, it is true,
hold their offices during their good
behavior, but then their determinations
are subject to correction by the house of
lords; and their power is by no means so
extensive as that of the proposed supreme
court of the union.  I believe they in no
instance assume the authority to set aside
an act of parliament under the idea that
it is inconsistent with their
constitution.  They consider themselves
bound to decide according to the existing
laws of the land, and never undertake to
control them by adjudging that they are
inconsistent with the constitution-much
less are they vested with the power of
giv[ing an] equitable construction to the
constitution.
      The judges in England are under the
control of the legislature, for they are
bound to determine according to the laws
passed under them.  But the judges under
this constitution will control the
legislature, for the supreme court are
authorised in the last resort, to
determine what is the extent of the powers
of the Congress.  They are to give the
constitution an explanation, and there is
no power above them to set aside their
judgment.  The framers of this
constitution appear to have followed that
of the British, in rendering the judges
independent, by granting them their
offices during good behavior, without
following the constitution of England, in
instituting a tribunal in which their
errors may be corrected; and without
adverting to this, that the judicial under
this system have a power which is above
the legislative, and which indeed
transcends any power before given to a
judicial by any free government under
heaven.
     I do not object to the judges holding
their commissions during good behavior.  I
suppose it a proper provision provided
they were made properly responsible.  But
I say, this system has followed the
English government in this, while it has
departed from almost every other principle
of their jurisprudence, under the idea, of
rendering the judges independent; which,
in the British constitution, means no more
than that they hold their places during
good behavior, and have fixed salaries . .
. [the authors of the constitution] have
made the judges independent, in the
fullest sense of the word.  There is no
power above them, to control any of their
decisions.  There is no authority that can
remove them, and they cannot be controlled
by the laws of the legislature.  In short,
they are independent of the people, of the
legislature, and of every power under
heaven.  Men placed in this situation will
generally soon feel themselves independent
of heaven itself.  Before I proceed to
illustrate the truth of these reflections,
I beg liberty to make one remark.  Though
in my opinion the judges ought to hold
their offices during good behavior, yet I
think it is clear, that the reasons in
favor of this establishment of the judges
in England, do by no means apply to this
country.
     The great reason assigned, why the
judges in Britain ought to be commissioned
during good behavior, is this, that they
may be placed in a situation, not to be
influenced by the crown, to give such
decisions as would tend to increase its
powers and prerogatives.  While the judges
held their places at the will and pleasure
of the king, on whom they depended not
only for their offices, but also for their
salaries, they were subject to every undue
influence.  If the crown wished to carry a
favorite point, to accomplish which the
aid of the courts of law was necessary,
the pleasure of the king would be
signified to the judges.  And it required
the spirit of a martyr for the judges to
determine contrary to the king's will. 
They were absolutely dependent upon him
both for their offices and livings.  The
king, holding his office during life, and
transmitting it to his posterity as an
inheritance, has much stronger inducements
to increase the prerogatives of his office
than those who hold their offices for
stated periods or even for life.  Hence
the English nation gained a great point,
in favor of liberty, when they obtained
the appointment of the judge, during good
behavior.  They got from the crown a
concession which deprived it of one of the
most powerful engines with which it might
enlarge the boundaries of the royal
prerogative and encroach on the liberties
of the people.  But these reasons do not
apply to this country.  We have no
hereditary monarch; those who appoint the
judges do not hold their offices for life,
nor do they descend to their children. 
The same arguments, therefore, which will
conclude in favor of the tenure of the
judge's offices for good behavior, lose a
considerable part of their weight when
applied to the state and condition of
America.  But much less can it be shown,
that the nature of our government requires
that the courts should be placed
beyond all account more independent, so
much so as to be above control.
     I have said that the judges under
this system will be independent in the    
strict sense of the word.  To prove this I
will show that there is no power above
them that can control their decisions,
or correct their errors.  There is no
authority that can remove them from office
for any errors or want of capacity, or
lower their salaries, and in many cases
their power is superior to that of the
legislature.
    1st.  There is no power above them
that can correct their errors or control
their decisions.  The adjudications of
this court are final and irreversible, for
there is no court above them to which
appeals can lie, either in error or on the
merits.  In this respect it differs from
the courts in England, for there the house
of lords is the highest court, to whom
appeals, in error, are carried from the
highest of the courts of law.
     2nd.  They cannot be removed from
office or suffer a diminution of their
salaries, for any error in judgment [due]
to want of capacity.  It is expressly
declared by the constitution, "That they
shall at stated times receive a
compensation for their services which
shall not be diminished during their
continuance in office."
     The only clause in the constitution
which provides for the removal of the
judges from offices, is that which
declares, that "the president, vice-
president, and all civil officers of the
United States, shall be removed from
office, on impeachment for, and conviction
of treason, bribery, or other high crimes
and misdemeanors." By this paragraph,
civil officers, in which the judges are
included, are removable only for crimes. 
Treason and bribery are named, and the
rest are included under the general terms
of high crimes and misdemeanors.  Errors
in judgment, or want of capacity to
discharge the duties of the office, can
never be supposed to be included in these
words, high crimes and misdemeanors.  A
man may mistake a case in giving judgment,
or manifest that he is incompetent to the
discharge of the duties of a judge, and
yet give no evidence of corruption or want
of integrity.  To support the charge, it
will be necessary to give in evidence some
facts that will show, that the judges
committed the error from wicked and
corrupt motives.
     3d. The power of this court is in
many cases superior to that of the
legislature.  I have showed, in a former
paper, that this court will be authorised
to decide upon the meaning of the
constitution; and that, not only according
to the natural and obvious meaning of the
words, but also according to the spirit
and intention of it.  In the exercise of
this power they will not be subordinate
to, but above the legislature.  For all
the departments of this government will
receive their powers, so far as they are
expressed in the constitution, from the
people immediately, who are the source of
power.  The legislature can only exercise
such powers as are given them by the
constitution; they cannot assume any of
the rights annexed to the judicial; for
this plain reason, that the same authority
which vested the legislature with their
powers, vested the judicial with theirs. 
Both are derived from the same source;
both therefore are equally valid, and the
judicial hold their powers independently
of the legislature, as the legislature do
of the judicial.  The supreme court then
have a right, independent of the
legislature, to give a construction to the
constitution and every part of it, and
there is no power provided in this system
to correct their construction or do it
away.  If, therefore, the legislature pass
any laws, inconsistent with the sense the
judges put upon the constitution, they
will declare it void; and therefore in
this respect their power is superior to
that of the legislature.  In England the
judges are not only subject to have their
decisions set aside by the house of lords,
for error, but in cases where they give an
explanation to the laws or constitution of
the country contrary to the sense of the
parliament -though the parliament will not
set aside the judgment of the court-yet,
they have authority, by a new law, to
explain the former one, and by this means
to prevent a reception of such decisions. 
But no such power is in the legislature. 
The judges are supreme and no law,
explanatory of the constitution, will be
binding on them. 
     When great and extraordinary powers
are vested in any man, or body of men,
which in their exercise, may operate to
the oppression of the people, it is of
high importance that powerful checks
should be formed to prevent the abuse
of it.
     Perhaps no restraints are more
forcible, than such as arise from
responsibility to some superior power. 
Hence it is that the true policy of a
republican government is, to frame it in
such manner, that all persons who are
concerned in the government, are made
accountable to some superior for their
conduct in office.  This responsibility
should ultimately rest with the people. 
To have a government well administered in
all its parts, it is requisite the
different departments of it should be
separated and lodged as much as may be in
different hands.  The legislative power
should be in one body, the executive in
another, and the judicial in one different
from either.  But still each of these
bodies should be accountable for their
conduct.  Hence it is impracticable,
perhaps, to maintain a perfect distinction
between these several departments.  For it
is difficult, if not impossible, to call
to account the several officers in
government, without in some degree mixing
the legislative and judicial.  The
legislature in a free republic are chosen
by the people at stated periods, and their
responsibility consists, in their being
amenable to the people.  When the term for
which they are chosen shall expire, who
[the people) will then have opportunity to
displace them if they disapprove of their
conduct.  But it would be improper that
the judicial should be elective, because
their business requires that they should
possess a degree of law knowledge, which
is acquired only by a regular education;
and besides it is fit that they should be
placed, in a certain degree in an
independent situation, that they may
maintain firmness and steadiness in their
decisions.  As the people therefore ought
not to elect the judges, they cannot be
amenable to them immediately, some other
mode of amenability must therefore be
devised for these, as well as for all
other officers which do not spring from
the immediate choice of the people.  This
is to be effected by making one court
subordinate to another, and by giving them
cognizance of the behavior of all
officers.  But on this plan we at last
arrive at some supreme, over whom there is
no power to control but the people
themselves.  This supreme controlling
power should be in the choice of the
people, or else you establish an authority
independent, and not amenable at all,
which is repugnant to the principles of a
free government.  Agreeable to these
principles I suppose the supreme judicial
ought to be liable to be called to
account, for any misconduct, by some body
of men, who depend upon the people for
their places; and so also should all other
great officers in the State, who are not
made amenable to some superior
officers....
                       BRUTUS



Antifederalist No. 80

THE POWER OF THE JUDICIARY   (PART 2)



From the 11th essay of "Brutus" taken from
The New-York Journal, January 31, 1788.


     The nature and extent of the judicial
power of the United States, proposed to be
granted by the constitution, claims
our particular attention.
     Much has been said and written upon
the subject of this new system on both
sides, but I have not met with any writer
who has discussed the judicial powers with
any degree of accuracy.  And yet it is
obvious, that we can gain but very
imperfect ideas of the manner in which
this government will work, or the effect
it will have in changing the internal
police and mode of distributing justice at
present subsisting in the respective
states, without a thorough investigation
of the powers of the judiciary and of the
manner in which they will operate.  This
government is a complete system, not only
for making, but for executing laws.  And
the courts of law, which will be
constituted by it, are not only to decide
upon the constitution and the laws made in
pursuance of it, but by officers
subordinate to them to execute all their
decisions.  The real effect of this system
of government, will therefore be brought
home to the feelings of the people,
through the medium of the judicial power. 
It is, moreover, of great importance, to
examine with care the nature and extent of
the judicial power, because those who are
to be vested with it, are to be placed in
a situation altogether unprecedented in a
free country.  They are to be rendered
totally independent, both of the people
and the legislature, both with respect to
their offices and salaries.  No errors
they may commit can be corrected by any
power above them, if any such power there
be, nor can they be removed from office
for making ever so many erroneous
adjudications.
     The only causes for which they can be
displaced, is, conviction of treason,
bribery, and high crimes and misdemeanors.
     This part of the plan is so modelled,
as to authorize the courts, not only to
carry into execution the powers expressly
given, but where these are wanting or
ambiguously expressed, to supply what is
wanting by their own decisions.
     That we may be enabled to form a just
opinion on this subject, I shall, in
considering it, lst.  Examine the nature
and extent of the judicial powers, and
2nd.  Inquire, whether the courts who are
to exercise them, are so constituted as to
afford reasonable ground of confidence,
that they will exercise them for the
general good.
     With a regard to the nature and
extent of the judicial powers, I have to
regret my want of capacity to give that
full and minute explanation of them that
the subject merits.  To be able to do
this, a man should be possessed of a
degree of law knowledge far beyond what I
pretend to.  A number of hard words and
technical phrases are used in this part of
the system, about the meaning of which
gentlemen learned in the law differ.  Its
advocates know how to avail themselves of
these phrases.  In a number of instances,
where objections are made to the powers
given to the judicial, they give such an
explanation to the technical terms as to
avoid them.
     Though I am not competent to give a
perfect explanation of the powers granted
to this department of the government, I
shall yet attempt to trace some of the
leading features of it, from which I
presume it will appear, that they will
operate to a total subversion of the state
judiciaries, if not to the legislative
authority of the states.
     In article 3d, sect. 2d, it is said,
"The judicial power shall extend to all
cases in law and equity arising under this
constitution, the laws of the United
States, and treaties made, or which shall
be made, under their authority, etc." The
first article to which this power extends
is, all cases in law and equity arising
under this constitution.
    What latitude of construction this
clause should receive, it is not easy to
say.  At first view, one would suppose,
that it meant no more than this, that the
courts under the general government should
exercise, not only the powers of courts of
law, but also that of courts of equity, in
the manner in which those powers are
usually exercised in the different states. 
But this cannot be the meaning, because
the next clause authorises the courts to
take cognizance of all cases in law and
equity arising under the laws of the
United States; this last article, I
conceive, conveys as much power to the
general judicial as any of the state
courts possess.
     The cases arising under the
constitution must be different from those
arising under the laws, or else the two
clauses mean exactly the same thing.  The
cases arising under the constitution must
include such, as bring into question its
meaning, and will require an explanation
of the nature and extent of the powers of
the different departments under it.  This
article, therefore, vests the judicial
with a power to resolve all questions that
may arise on any case on the construction
of the constitution, either in law or in
equity.
     lst.  They are authorised to
determine all questions that may arise
upon the meaning of the constitution in
law.  This article vests the courts with
authority to give the constitution a legal
construction, or to explain it according
to the rules laid down for construing a
law.  These rules give a certain degree of
latitude of explanation.  According to
this mode of construction, the courts are
to give such meaning to the constitution
as comports best with the common, and
generally received acceptation of the
words in which it is expressed, regarding
their ordinary and popular use, rather
than their grammatical propriety.  Where
words are dubious, they will be explained
by the context.  The end of the clause
will be attended to, and the words will be
understood, as having a view to it; and
the words will not be so understood as to
bear no meaning or a very absurd one.
     2nd.  The judicial are not only to
decide questions arising upon the meaning
of the constitution in law, but also in
equity.  By this they are empowered, to
explain the constitution according to the
reasoning spirit of it, without being
confined to the words or letter.  "From
this method of interpreting laws (says
Blackstone) by the reason of them, arises
what we call equity"; which is thus
defined by Grotius, "the correction of
that, wherein the law, by reason of its
universality, is deficient; for since in
laws all cases cannot be foreseen, or
expressed, it is necessary, that when the
decrees of the law cannot be applied to
particular cases, there should somewhere
be a power vested of defining those
circumstances, which had they been
foreseen the legislator would have
expressed. . . ." The same learned author
observes, "That equity, thus depending
essentially upon each individual case,
there can be no established rules and
fixed principles of equity laid down,
without destroying its very essence, and
reducing it to a positive law."
     From these remarks, the authority and
business of the courts of law, under this
clause, may be understood.
     They [the courts] will give the sense
of every article of the constitution, that
may from time to time come before them. 
And in their decisions they will not
confine themselves to any fixed or
established rules, but will determine,
according to what appears to them, the
reason and spirit of the constitution. 
The opinions of the supreme court,
whatever they may be, will have the force
of law; because there is no power provided
in the constitution that can correct their
errors, or control their adjudications. 
From this court there is no appeal.  And I
conceive the legislature themselves,
cannot set aside a judgment of this court,
because they are authorised by the
constitution to decide in the last resort. 
The legislature must be controlled by the
constitution, and not the constitution by
them.  They have therefore no more right
to set aside any judgment pronounced upon
the construction of the constitution, than
they have to take from the president, the
chief command of the army and navy, and
commit it to some other person.  The
reason is plain; the judicial and
executive derive their authority from the
same source, that the legislature do
theirs; and therefore in all cases, where
the constitution does not make the one
responsible to, or controllable by the
other, they are altogether independent of
each other.
    The judicial power will operate to
effect, in the most certain, but yet
silent and imperceptible manner, what is
evidently the tendency of the
constitution: I mean, an entire subversion
of the legislative, executive and judicial
powers of the individual states.  Every
adjudication of the supreme court, on any
question that may arise upon the nature
and extent of the general government, will
affect the limits of the state
jurisdiction.  In proportion as the former
enlarge the exercise of their powers, will
that of the latter be restricted.
    That the judicial power of the United
States, will lean strongly in favor of the
general government, and will give such an
explanation to the constitution, as will
favor an extension of its jurisdiction, is
very evident from a variety of
considerations.
     lst.  The constitution itself
strongly countenances such a mode of
construction.  Most of the articles in
this system, which convey powers of any
considerable importance, are conceived in
general and indefinite terms, which are
either equivocal, ambiguous, or which
require long definitions to unfold the
extent of their meaning.  The two most
important powers committed to any
government, those of raising money, and of
raising and keeping up troops, have
already been considered, and shown to be
unlimited by any thing but the discretion
of the legislature.  The clause which
vests the power to pass all laws which are
proper and necessary, to carry the powers
given into execution, it has been shown,
leaves the legislature at liberty, to do
everything, which in their judgment is
best.  It is said, I know, that this
clause confers no power on the
legislature, which they would not have had
without it-though I believe this is not
the fact, Yet, admitting it to be, it
implies that the constitution is not to
receive an explanation strictly according
to its letter; but more power is implied
than is expressed.  And this clause, if it
is to be considered as explanatory of the
extent of the powers given, rather than
giving a new power, is to be understood as
declaring that in construing any of the
articles conveying power, the spirit,
intent and design of the clause should be
attended to, as welt as the words in their
common acceptation.
     This constitution gives sufficient
color for adopting an equitable
construction, if we consider the great end
and design it professedly has in view. 
These appear from its preamble to be, "to
form a more perfect union, establish
justice, insure domestic tranquility,
provide for the common defense, promote
the general welfare, and secure the
blessings of liberty to ourselves and
posterity."  The design of this system is
here expressed, and it is proper to give
such a meaning to the various parts, as
will best promote the accomplishment of
the end; this idea suggests itself
naturally upon reading the preamble, and
will countenance the court in giving
the several articles such a sense, as will
the most effectually promote the ends the
constitution had in view.  How this manner
of explaining the constitution will
operate in practice, shall be the subject
of future inquiry.
     2nd.  Not only will the constitution
justify the courts in inclining to this
mode of explaining it, but they will be
interested in using this latitude of
interpretation.  Every body of men
invested with office are tenacious of
power; they feel interested, and hence it
has become a kind of maxim, to hand down
their offices, with all its rights and
privileges, unimpaired to their
successors.  The same principle will
influence them to extend their power, and
increase their rights; this of itself will
operate strongly upon the courts to give
such a meaning to the constitution in all
cases where it can possibly be done, as
will enlarge the sphere of their own
authority.  Every extension of the power
of the general legislature, as well as of
the judicial powers, will increase the
powers of the courts; and the dignity and
importance of the judges, will be in
proportion to the extent and magnitude of
the powers they exercise.  I add, it is
highly probable the emolument of the
judges will be increased, with the
increase of the business they will have to
transact and its importance.  From these
considerations the judges will be
interested to extend the powers of the
courts, and to construe the constitution
as much as possible, in such a way as to
favor it; and that they will do it,
appears probable.
     3rd.  Because they [the courts] will
have precedent to plead, to justify them
in it [extending their powers].  It is
well known, that the courts in England,
have by their authority, extended their
jurisdiction far beyond the limits set
them in their original institution, and
by the laws of the land. 
     The court of exchequer is a
remarkable instance of this.  It was
originally intended principally to recover
the king's debts, and to order the
revenues of the crown.  It had a common
law jurisdiction, which was established
merely for the benefit of the king's
accountants.  We learn from Blackstone,
that the proceedings in this court are
grounded on a writ called quo minus, in
which the plaintiff suggests, that he is
the king's farmer or debtor, and that the
defendant hath done him the damage
complained of, by which he is less able to
pay the king.  These suits, by the statute
of Rutland, are expressly directed to be
confined to such matters as specially
concern the king, or his ministers in the
exchequer.  And by the articuli super
cartas, it is enacted, that no common
pleas be thenceforth held in the exchequer
contrary to the form of the great charter. 
But now any person may sue in the
exchequer.  The surmise of being debtor to
the king being matter of form, and mere
words of course, the court is open to all
the nation.
     When the courts will have a precedent
before them of a court which extended its
jurisdiction in opposition to an act of
the legislature, is it not to be expected
that they will extend theirs, especially
when there is nothing in the constitution
expressly against it?  And they are
authorised to construe its meaning, and
are not under any control.
     This power in the judicial, will
enable them to mould the government, into
any shape they please.  The manner in
which this may be effected we will
hereafter examine.
                     BRUTUS