where annual elections end, tyranny begins. “ If it be true, as has
often been remarked, that sayings which become proverbial are generally
founded in reason, it is not less true, that when once established,
they are often applied to cases to which the reason of them does not
extend. I need not look for a proof beyond the case before us. What is
the reason on which this proverbial observation is founded? No man will
subject himself to the ridicule of pretending that any natural
connection subsists between the sun or the seasons, and the period
within which human virtue can bear the temptations of power. Happily
for mankind, liberty is not, in this respect, confined to any single
point of time; but lies within extremes, which afford sufficient
latitude for all the variations which may be required by the various
situations and circumstances of civil society. The election of
magistrates might be, if it were found expedient, as in some instances
it actually has been, daily, weekly, or monthly, as well as annual; and
if circumstances may require a deviation from the rule on one side, why
not also on the other side? Turning our attention to the periods
established among ourselves, for the election of the most numerous
branches of the State legislatures, we find them by no means coinciding
any more in this instance, than in the elections of other civil
magistrates. In Connecticut and Rhode Island, the periods are
half-yearly. In the other States, South Carolina excepted, they are
annual. In South Carolina they are biennial as is proposed in the
federal government. Here is a difference, as four to one, between the
longest and shortest periods; and yet it would be not easy to show,
that Connecticut or Rhode Island is better governed, or enjoys a
greater share of rational liberty, than South Carolina; or that either
the one or the other of these States is distinguished in these
respects, and by these causes, from the States whose elections are
different from both. In searching for the grounds of this doctrine, I
can discover but one, and that is wholly inapplicable to our case. The
important distinction so well understood in America, between a
Constitution established by the people and unalterable by the
government, and a law established by the government and alterable by
the government, seems to have been little understood and less observed
in any other country. Wherever the supreme power of legislation has
resided, has been supposed to reside also a full power to change the
form of the government. Even in Great Britain, where the principles of
political and civil liberty have been most discussed, and where we hear
most of the rights of the Constitution, it is maintained that the
authority of the Parliament is transcendent and uncontrollable, as well
with regard to the Constitution, as the ordinary objects of legislative
provision. They have accordingly, in several instances, actually
changed, by legislative acts, some of the most fundamental articles of
the government. They have in particular, on several occasions, changed
the period of election; and, on the last occasion, not only introduced
septennial in place of triennial elections, but by the same act,
continued themselves in place four years beyond the term for which they
were elected by the people. An attention to these dangerous practices
has produced a very natural alarm in the votaries of free government,
of which frequency of elections is the corner-stone; and has led them
to seek for some security to liberty, against the danger to which it is
exposed. Where no Constitution, paramount to the government, either
existed or could be obtained, no constitutional security, similar to
that established in the United States, was to be attempted. Some other
security, therefore, was to be sought for; and what better security
would the case admit, than that of selecting and appealing to some
simple and familiar portion of time, as a standard for measuring the
danger of innovations, for fixing the national sentiment, and for
uniting the patriotic exertions? The most simple and familiar portion
of time, applicable to the subject was that of a year; and hence the
doctrine has been inculcated by a laudable zeal, to erect some barrier
against the gradual innovations of an unlimited government, that the
advance towards tyranny was to be calculated by the distance of
departure from the fixed point of annual elections. But what necessity
can there be of applying this expedient to a government limited, as the
federal government will be, by the authority of a paramount
Constitution? Or who will pretend that the liberties of the people of
America will not be more secure under biennial elections, unalterably
fixed by such a Constitution, than those of any other nation would be,
where elections were annual, or even more frequent, but subject to
alterations by the ordinary power of the government? The second
question stated is, whether biennial elections be necessary or useful.
The propriety of answering this question in the affirmative will appear
from several very obvious considerations. No man can be a competent
legislator who does not add to an upright intention and a sound
judgment a certain degree of knowledge of the subjects on which he is
to legislate. A part of this knowledge may be acquired by means of
information which lie within the compass of men in private as well as
public stations. Another part can only be attained, or at least
thoroughly attained, by actual experience in the station which requires
the use of it. The period of service, ought, therefore, in all such
cases, to bear some proportion to the extent of practical knowledge
requisite to the due performance of the service. The period of
legislative service established in most of the States for the more
numerous branch is, as we have seen, one year. The question then may be
put into this simple form: does the period of two years bear no greater
proportion to the knowledge requisite for federal legislation than one
year does to the knowledge requisite for State legislation? The very
statement of the question, in this form, suggests the answer that ought
to be given to it. In a single State, the requisite knowledge relates
to the existing laws which are uniform throughout the State, and with
which all the citizens are more or less conversant; and to the general
affairs of the State, which lie within a small compass, are not very
diversified, and occupy much of the attention and conversation of every
class of people. The great theatre of the United States presents a very
different scene. The laws are so far from being uniform, that they vary
in every State; whilst the public affairs of the Union are spread
throughout a very extensive region, and are extremely diversified by t
e local affairs connected with them, and can with difficulty be
correctly learnt in any other place than in the central councils to
which a knowledge of them will be brought by the representatives of
every part of the empire. Yet some knowledge of the affairs, and even
of the laws, of all the States, ought to be possessed by the members
from each of the States. How can foreign trade be properly regulated by
uniform laws, without some acquaintance with the commerce, the ports,
the usages, and the regulatious of the different States? How can the
trade between the different States be duly regulated, without some
knowledge of their relative situations in these and other respects? How
can taxes be judiciously imposed and effectually collected, if they be
not accommodated to the different laws and local circumstances relating
to these objects in the different States? How can uniform regulations
for the militia be duly provided, without a similar knowledge of many
internal circumstances by which the States are distinguished from each
other? These are the principal objects of federal legislation, and
suggest most forcibly the extensive information which the
representatives ought to acquire. The other interior objects will
require a proportional degree of information with regard to them. It is
true that all these difficulties will, by degrees, be very much
diminished. The most laborious task will be the proper inauguration of
the government and the primeval formation of a federal code.
Improvements on the first draughts will every year become both easier
and fewer. Past transactions of the government will be a ready and
accurate source of information to new members. The affairs of the Union
will become more and more objects of curiosity and conversation among
the citizens at large. And the increased intercourse among those of
different States will contribute not a little to diffuse a mutual
knowledge of their affairs, as this again will contribute to a general
assimilation of their manners and laws. But with all these abatements,
the business of federal legislation must continue so far to exceed,
both in novelty and difficulty, the legislative business of a single
State, as to justify the longer period of service assigned to those who
are to transact it. A branch of knowledge which belongs to the
acquirements of a federal representative, and which has not been
mentioned is that of foreign affairs. In regulating our own commerce he
ought to be not only acquainted with the treaties between the United
States and other nations, but also with the commercial policy and laws
of other nations. He ought not to be altogether ignorant of the law of
nations; for that, as far as it is a proper object of municipal
legislation, is submitted to the federal government.
And although the House of Representatives is not immediately to
participate in foreign negotiations and arrangements, yet from the
necessary connection between the several branches of public affairs,
those particular branches will frequently deserve attention in the
ordinary course of legislation, and will sometimes demand particular
legislative sanction and co-operation. Some portion of this knowledge
may, no doubt, be acquired in a man’s closet; but some of it also can
only be derived from the public sources of information; and all of it
will be acquired to best effect by a practical attention to the subject
during the period of actual service in the legislature.
There are other considerations, of less importance, perhaps, but which
are not unworthy of notice. The distance which many of the
representatives will be obliged to travel, and the arrangements
rendered necessary by that circumstance, might be much more serious
objections with fit men to this service, if limited to a single year,
than if extended to two years. No argument can be drawn on this
subject, from the case of the delegates to the existing Congress. They
are elected annually, it is true; but their re-election is considered
by the legislative assemblies almost as a matter of course. The
election of the representatives by the people would not be governed by
the same principle. A few of the members, as happens in all such
assemblies, will possess superior talents; will, by frequent
reelections, become members of long standing; will be thoroughly
masters of the public business, and perhaps not unwilling to avail
themselves of those advantages. The greater the proportion of new
members, and the less the information of the bulk of the members the
more apt will they be to fall into the snares that may be laid for
them. This remark is no less applicable to the relation which will
subsist between the House of Representatives and the Senate. It is an
inconvenience mingled with the advantages of our frequent elections
even in single States, where they are large, and hold but one
legislative session in a year, that spurious elections cannot be
investigated and annulled in time for the decision to have its due
effect. If a return can be obtained, no matter by what unlawful means,
the irregular member, who takes his seat of course, is sure of holding
it a sufficient time to answer his purposes. Hence, a very pernicious
encouragement is given to the use of unlawful means, for obtaining
irregular returns. Were elections for the federal legislature to be
annual, this practice might become a very serious abuse, particularly
in the more distant States. Each house is, as it necessarily must be,
the judge of the elections, qualifications, and returns of its members;
and whatever improvements may be suggested by experience, for
simplifying and accelerating the process in disputed cases, so great a
portion of a year would unavoidably elapse, before an illegitimate
member could be dispossessed of his seat, that the prospect of such an
event would be little check to unfair and illicit means of obtaining a
seat. All these considerations taken together warrant us in affirming,
that biennial elections will be as useful to the affairs of the public
as we have seen that they will be safe to the liberty of the people.
PUBLIUS.
THE FEDERALIST.
No. LIV.
The Apportionment of Members Among the States
From the New York Packet. Tuesday, February 12, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
The next view which I shall take of the House of Representatives
relates to the appointment of its members to the several States which
is to be determined by the same rule with that of direct taxes. It is
not contended that the number of people in each State ought not to be
the standard for regulating the proportion of those who are to
represent the people of each State. The establishment of the same rule
for the appointment of taxes, will probably be as little contested;
though the rule itself in this case, is by no means founded on the same
principle. In the former case, the rule is understood to refer to the
personal rights of the people, with which it has a natural and
universal connection.
In the latter, it has reference to the proportion of wealth, of which
it is in no case a precise measure, and in ordinary cases a very unfit
one. But notwithstanding the imperfection of the rule as applied to the
relative wealth and contributions of the States, it is evidently the
least objectionable among the practicable rules, and had too recently
obtained the general sanction of America, not to have found a ready
preference with the convention. All this is admitted, it will perhaps
be said; but does it follow, from an admission of numbers for the
measure of representation, or of slaves combined with free citizens as
a ratio of taxation, that slaves ought to be included in the numerical
rule of representation? Slaves are considered as property, not as
persons. They ought therefore to be comprehended in estimates of
taxation which are founded on property, and to be excluded from
representation which is regulated by a census of persons. This is the
objection, as I understand it, stated in its full force. I shall be
equally candid in stating the reasoning which may be offered on the
opposite side. “We subscribe to the doctrine,” might one of our
Southern brethren observe, “that representation relates more
immediately to persons, and taxation more immediately to property, and
we join in the application of this distinction to the case of our
slaves. But we must deny the fact, that slaves are considered merely as
property, and in no respect whatever as persons. The true state of the
case is, that they partake of both these qualities: being considered by
our laws, in some respects, as persons, and in other respects as
property. In being compelled to labor, not for himself, but for a
master; in being vendible by one master to another master; and in being
subject at all times to be restrained in his liberty and chastised in
his body, by the capricious will of another, the slave may appear to be
degraded from the human rank, and classed with those irrational animals
which fall under the legal denomination of property. In being
protected, on the other hand, in his life and in his limbs, against the
violence of all others, even the master of his labor and his liberty;
and in being punishable himself for all violence committed against
others, the slave is no less evidently regarded by the law as a member
of the society, not as a part of the irrational creation; as a moral
person, not as a mere article of property. The federal Constitution,
therefore, decides with great propriety on the case of our slaves, when
it views them in the mixed character of persons and of property. This
is in fact their true character. It is the character bestowed on them
by the laws under which they live; and it will not be denied, that
these are the proper criterion; because it is only under the pretext
that the laws have transformed the negroes into subjects of property,
that a place is disputed them in the computation of numbers; and it is
admitted, that if the laws were to restore the rights which have been
taken away, the negroes could no longer be refused an equal share of
representation with the other inhabitants. “This question may be placed
in another light. It is agreed on all sides, that numbers are the best
scale of wealth and taxation, as they are the only proper scale of
representation. Would the convention have been impartial or consistent,
if they had rejected the slaves from the list of inhabitants, when the
shares of representation were to be calculated, and inserted them on
the lists when the tariff of contributions was to be adjusted? Could it
be reasonably expected, that the Southern States would concur in a
system, which considered their slaves in some degree as men, when
burdens were to be imposed, but refused to consider them in the same
light, when advantages were to be conferred? Might not some surprise
also be expressed, that those who reproach the Southern States with the
barbarous policy of considering as property a part of their human
brethren, should themselves contend, that the government to which all
the States are to be parties, ought to consider this unfortunate race
more completely in the unnatural light of property, than the very laws
of which they complain? “It may be replied, perhaps, that slaves are
not included in the estimate of representatives in any of the States
possessing them. They neither vote themselves nor increase the votes of
their masters. Upon what principle, then, ought they to be taken into
the federal estimate of representation? In rejecting them altogether,
the Constitution would, in this respect, have followed the very laws
which have been appealed to as the proper guide. “This objection is
repelled by a single observation. It is a fundamental principle of the
proposed Constitution, that as the aggregate number of representatives
allotted to the several States is to be determined by a federal rule,
founded on the aggregate number of inhabitants, so the right of
choosing this allotted number in each State is to be exercised by such
part of the inhabitants as the State itself may designate. The
qualifications on which the right of suffrage depend are not, perhaps,
the same in any two States. In some of the States the difference is
very material. In every State, a certain proportion of inhabitants are
deprived of this right by the constitution of the State, who will be
included in the census by which the federal Constitution apportions the
representatives.
In this point of view the Southern States might retort the complaint,
by insisting that the principle laid down by the convention required
that no regard should be had to the policy of particular States towards
their own inhabitants; and consequently, that the slaves, as
inhabitants, should have been admitted into the census according to
their full number, in like manner with other inhabitants, who, by the
policy of other States, are not admitted to all the rights of citizens.
A rigorous adherence, however, to this principle, is waived by those
who would be gainers by it. All that they ask is that equal moderation
be shown on the other side. Let the case of the slaves be considered,
as it is in truth, a peculiar one. Let the compromising expedient of
the Constitution be mutually adopted, which regards them as
inhabitants, but as debased by servitude below the equal level of free
inhabitants, which regards the SLAVE as divested of two fifths of the
MAN. “After all, may not another ground be taken on which this article
of the Constitution will admit of a still more ready defense? We have
hitherto proceeded on the idea that representation related to persons
only, and not at all to property. But is it a just idea?
Government is instituted no less for protection of the property, than
of the persons, of individuals. The one as well as the other,
therefore, may be considered as represented by those who are charged
with the government. Upon this principle it is, that in several of the
States, and particularly in the State of New York, one branch of the
government is intended more especially to be the guardian of property,
and is accordingly elected by that part of the society which is most
interested in this object of government. In the federal Constitution,
this policy does not prevail. The rights of property are committed into
the same hands with the personal rights. Some attention ought,
therefore, to be paid to property in the choice of those hands. “For
another reason, the votes allowed in the federal legislature to the
people of each State, ought to bear some proportion to the comparative
wealth of the States. States have not, like individuals, an influence
over each other, arising from superior advantages of fortune. If the
law allows an opulent citizen but a single vote in the choice of his
representative, the respect and consequence which he derives from his
fortunate situation very frequently guide the votes of others to the
objects of his choice; and through this imperceptible channel the
rights of property are conveyed into the public representation. A State
possesses no such influence over other States. It is not probable that
the richest State in the Confederacy will ever influence the choice of
a single representative in any other State. Nor will the
representatives of the larger and richer States possess any other
advantage in the federal legislature, over the representatives of other
States, than what may result from their superior number alone. As far,
therefore, as their superior wealth and weight may justly entitle them
to any advantage, it ought to be secured to them by a superior share of
representation. The new Constitution is, in this respect, materially
different from the existing Confederation, as well as from that of the
United Netherlands, and other similar confederacies. In each of the
latter, the efficacy of the federal resolutions depends on the
subsequent and voluntary resolutions of the states composing the union.
Hence the states, though possessing an equal vote in the public
councils, have an unequal influence, corresponding with the unequal
importance of these subsequent and voluntary resolutions. Under the
proposed Constitution, the federal acts will take effect without the
necessary intervention of the individual States. They will depend
merely on the majority of votes in the federal legislature, and
consequently each vote, whether proceeding from a larger or smaller
State, or a State more or less wealthy or powerful, will have an equal
weight and efficacy: in the same manner as the votes individually given
in a State legislature, by the representatives of unequal counties or
other districts, have each a precise equality of value and effect; or
if there be any difference in the case, it proceeds from the difference
in the personal character of the individual representative, rather than
from any regard to the extent of the district from which he comes.
“Such is the reasoning which an advocate for the Southern interests
might employ on this subject; and although it may appear to be a little
strained in some points, yet, on the whole, I must confess that it
fully reconciles me to the scale of representation which the convention
have established. In one respect, the establishment of a common measure
for representation and taxation will have a very salutary effect. As
the accuracy of the census to be obtained by the Congress will
necessarily depend, in a considerable degree on the disposition, if not
on the co-operation, of the States, it is of great importance that the
States should feel as little bias as possible, to swell or to reduce
the amount of their numbers. Were their share of representation alone
to be governed by this rule, they would have an interest in
exaggerating their inhabitants. Were the rule to decide their share of
taxation alone, a contrary temptation would prevail. By extending the
rule to both objects, the States will have opposite interests, which
will control and balance each other, and produce the requisite
impartiality.
PUBLIUS.
THE FEDERALIST.
No. LV.
The Total Number of the House of Representatives
From the New York Packet. Friday, February 15, 1788.
HAMILTON OR MADISON
To the People of the State of New York:
The number of which the House of Representatives is to consist, forms
another and a very interesting point of view, under which this branch
of the federal legislature may be contemplated.
Scarce any article, indeed, in the whole Constitution seems to be
rendered more worthy of attention, by the weight of character and the
apparent force of argument with which it has been assailed.