"Brutus" The Anti-Federalist PapersThe series of anti-federalist writing which most nearly paralleled and confronted The Federalist was a series of sixteen essays published in the New York Journal from October, 1787, through April, 1788, during the same period The Federalist was appearing in ew !or" newspapers, under the pseudonym #$rutus#, in honor of the %oman republican who was one of those who assassinated &ulius 'aesar, to pre(ent him from o(erthrowing the %oman %epublic) The essays were widely reprinted and commented on throughout the American states) The author is thought by most scholars to ha(e been %obert !ates, a ew !or" *udge, delegate to the Federal 'on(ention, and political ally of anti-federalist ew !or" +o(ernor +eorge 'linton) All of the essays were addressed to #the 'iti,ens of the -tate of ew !or"#)

I18 October 1787

To the Citizens of the tate of !e"-#or$%.hen the public is called to in(estigate and decide upon a /uestion in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the bene(olent mind cannot help feeling itself peculiarly interested in the result) 0n this situation, 0 trust the feeble efforts of an indi(idual, to lead the minds of the people to a wise and prudent determination, cannot fail of being acceptable to the candid and dispassionate part of the community) 1ncouraged by this consideration, 0 ha(e been induced to offer my thoughts upon the present important crisis of our public affairs) 2erhaps this country ne(er saw so critical a period in their political concerns) .e ha(e felt the feebleness of the ties by which these 3nited--tates are held together, and the want of sufficient energy in our present confederation, to manage, in some instances, our general concerns) 4arious expedients ha(e been proposed to remedy these e(ils, but none ha(e succeeded) At length a 'on(ention of the states has been assembled, they ha(e formed a constitution which will now, probably, be submitted to the people to ratify or re*ect, who are the fountain of all power, to whom alone it of right belongs to ma"e or unma"e constitutions, or forms of go(ernment, at their pleasure) The most important /uestion that was e(er proposed to your decision, or to the decision of any people under hea(en, is before you, and you are to decide upon it by men of your own election, chosen specially for this purpose) 0f the constitution, offered to your acceptance, be a wise one, calculated to preser(e the in(aluable blessings of liberty, to secure the inestimable rights of man"ind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn5 generations to come will rise up and call you

blessed) !ou may re*oice in the prospects of this (ast extended continent becoming filled with freemen, who will assert the dignity of human nature) !ou may solace yoursel(es with the idea, that society, in this fa(oured land, will fast ad(ance to the highest point of perfection5 the human mind will expand in "nowledge and (irtue, and the golden age be, in some measure, realised) $ut if, on the other hand, this form of go(ernment contains principles that will lead to the sub(ersion of liberty 6 if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy5 then, if you adopt it, this only remaining assylum for liberty will be shut up, and posterity will execrate your memory) 7omentous then is the /uestion you ha(e to determine, and you are called upon by e(ery moti(e which should influence a noble and (irtuous mind, to examine it well, and to ma"e up a wise *udgment) 0t is insisted, indeed, that this constitution must be recei(ed, be it e(er so imperfect) 0f it has its defects, it is said, they can be best amended when they are experienced) $ut remember, when the people once part with power, they can seldom or ne(er resume it again but by force) 7any instances can be produced in which the people ha(e (oluntarily increased the powers of their rulers5 but few, if any, in which rulers ha(e willingly abridged their authority) This is a sufficient reason to induce you to be careful, in the first instance, how you deposit the powers of go(ernment) .ith these few introductory remar"s, 0 shall proceed to a consideration of this constitution8 The first /uestion that presents itself on the sub*ect is, whether a confederated go(ernment be the best for the 3nited -tates or not9 Or in other words, whether the thirteen 3nited -tates should be reduced to one great republic, go(erned by one legislature, and under the direction of one executi(e and *udicial5 or whether they should continue thirteen confederated republics, under the direction and controul of a supreme federal head for certain defined national purposes only9 This en/uiry is important, because, although the go(ernment reported by the con(ention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it) This go(ernment is to possess absolute and uncontroulable power, legislati(e, executi(e and *udicial, with respect to e(ery ob*ect to which it extends, for by the last clause of section 8th, article 1st, it is declared #that the 'ongress shall ha(e power to ma"e all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers (ested by this constitution, in the go(ernment of the 3nited -tates5 or in any department or office thereof)# And by the :th article, it is declared #that this constitution, and the laws of the 3nited -tates, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the 3nited -tates, shall be the supreme law of the land5 and the *udges in e(ery state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding)# 0t appears from these articles that there is no need of any inter(ention of the state go(ernments, between the 'ongress and the people, to execute any one power (ested in the general go(ernment, and that the constitution and laws of e(ery state are nullified and declared (oid, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the 3nited -tates) 6 The go(ernment then, so far as it extends, is a complete one, and not a confederation) 0t is as much

one complete go(ernment as that of ew-!or" or 7assachusetts, has as absolute and perfect powers to ma"e and execute all laws, to appoint officers, institute courts, declare offences, and annex penalties, with respect to e(ery ob*ect to which it extends, as any other in the world) -o far therefore as its powers reach, all ideas of confederation are gi(en up and lost) 0t is true this go(ernment is limited to certain ob*ects, or to spea" more properly, some small degree of power is still left to the states, but a little attention to the powers (ested in the general go(ernment, will con(ince e(ery candid man, that if it is capable of being executed, all that is reser(ed for the indi(idual states must (ery soon be annihilated, except so far as they are barely necessary to the organi,ation of the general go(ernment) The powers of the general legislature extend to e(ery case that is of the least importance 6 there is nothing (aluable to human nature, nothing dear to freemen, but what is within its power) 0t has authority to ma"e laws which will affect the li(es, the liberty, and property of e(ery man in the 3nited -tates5 nor can the constitution or laws of any state, in any way pre(ent or impede the full and complete execution of e(ery power gi(en) The legislati(e power is competent to lay taxes, duties, imposts, and excises5 6 there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes, and duties shall be applied, may be said to be a limitation8 but this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and pro(ide for the common defence and general welfare of the 3nited -tates5 but the legislature ha(e authority to contract debts at their discretion5 they are the sole *udges of what is necessary to pro(ide for the common defence, and they only are to determine what is for the general welfare5 this power therefore is neither more nor less, than a power to lay and collect taxes, imposts, and excises, at their pleasure5 not only ;is< the power to lay taxes unlimited, as to the amount they may re/uire, but it is perfect and absolute to raise them in any mode they please) o state legislature, or any power in the state go(ernments, ha(e any more to do in carrying this into effect, than the authority of one state has to do with that of another) 0n the business therefore of laying and collecting taxes, the idea of confederation is totally lost, and that of one entire republic is embraced) 0t is proper here to remar", that the authority to lay and collect taxes is the most important of any power that can be granted5 it connects with it almost all other powers, or at least will in process of time draw all other after it5 it is the great mean of protection, security, and defence, in a good go(ernment, and the great engine of oppression and tyranny in a bad one) This cannot fail of being the case, if we consider the contracted limits which are set by this constitution, to the late ;state9< go(ernments, on this article of raising money) o state can emit paper money 6 lay any duties, or imposts, on imports, or exports, but by consent of the 'ongress5 and then the net produce shall be for the benefit of the 3nited -tates8 the only mean therefore left, for any state to support its go(ernment and discharge its debts, is by direct taxation5 and the 3nited -tates ha(e also power to lay and collect taxes, in any way they please) 1(ery one who has thought on the sub*ect, must be con(inced that but small sums of money can be collected in any country, by direct taxe;set us apply these remar"s to the case of standing armies in times of peace) 0f they generally pro(e the destruction of the happiness and liberty of the people, the legislature ought not to ha(e power to "eep them up, or if they had, this power should be so restricted, as to secure the people against the danger arising from the exercise of it)

That standing armies are dangerous to the liberties of a people was pro(ed in my last number 6 0f it was necessary, the truth of the position might be confirmed by the history of almost e(ery nation in the world) A cloud of the most illustrious patriots of e(ery age and country, where freedom has been en*oyed, might be adduced as witnesses in support of the sentiment) $ut 0 presume it would be useless, to enter into a laboured argument, to pro(e to the people of America, a position, which has so long and so generally been recei(ed by them as a "ind of axiom) -ome of the ad(ocates for this new system contro(ert this sentiment, as they do almost e(ery other that has been maintained by the best writers on free go(ernment) 6 Others, though they will not expressly deny, that standing armies in times of peace are dangerous, yet *oin with these in maintaining, that it is proper the general go(ernment should be (ested with the power to do it) 0 shall now proceed to examine the arguments they adduce in support of their opinions) A writer, in fa(or of this system, treats this ob*ection as a ridiculous one) =e supposes it would be as proper to pro(ide against the introduction of Tur"ish *ani,aries, or against ma"ing the Alcoran a rule of faith) From the positi(e, and dogmatic manner, in which this author deli(ers his opinions, and answers ob*ections made to his sentiments 6 one would conclude, that he was some pedantic pedagogue who had been accustomed to deli(er his dogmas to pupils, who always placed implicit faith in what he deli(ered) $ut, why is this pro(ision so ridiculous9 because, says this author, it is unnecessary) $ut, why is it unnecessary9 #because, the principles and habits, as well as the power of the Americans are directly opposed to standing armies5 and there is as little necessity to guard against them by positi(e constitutions, as to prohibit the establishment of the 7ahometan religion)# 0t is admitted then, that a standing army in time of peace, is an e(il) 0 as" then, why should this go(ernment be authorised to do e(il9 0f the principles and habits of the people of this country are opposed to standing armies in time of peace, if they do not contribute to the public good, but would endanger the public liberty and happiness, why should the go(ernment be (ested with the power9 o reason can be gi(en, why rulers should be authorised to do, what, if done, would oppose the principles and habits of the people, and endanger the public safety, but there is e(ery reason in the world, that they should be prohibited from the exercise of such a power) $ut this author supposes, that no danger is to be apprehended from the exercise of this power, because, if armies are "ept up, it will be by the people themsel(es, and therefore, to pro(ide against it, would be as absurd as for a man to #pass a law in his family, that no troops should be /uartered in his family by his consent)# This reasoning supposes, that the general go(ernment is to be exercised by the people of America themsel(es 6 $ut such an idea is groundless and absurd) There is surely a distinction between the people and their rulers, e(en when the latter are representati(es of the former) 6 They certainly are not identically the same, and it cannot be disputed, but it may and often does happen, that they do not possess the same sentiments or pursue the same interests) 0 thin" 0 ha(e shewn, that as this go(ernment is constituted, there is little reason to expect, that the interest of the people and their rulers will be the same)

$esides, if the habits and sentiments of the people of America are to be relied upon, as the sole security against the encroachment of their rulers, all restrictions in constitutions are unnecessary5 nothing more is re/uisite, than to declare who shall be authori,ed to exercise the powers of go(ernment, and about this we need not be (ery careful 6 for the habits and principles of the people will oppose e(ery abuse of power) This 0 suppose to be the sentiments of this author, as it seems to be of many of the ad(ocates of this new system) An opinion li"e this, is as directly opposed to the principles and habits of the people of America, as it is to the sentiments of e(ery writer of reputation on the science of go(ernment, and repugnant to the principles of reason and common sense) The idea that there is no danger of the establishment of a standing army, under the new constitution, is without foundation) 0t is a well "nown fact, that a number of those who had an agency in producing this system, and many of those who it is probable will ha(e a principal share in the administration of the go(ernment under it, if it is adopted, are a(owedly in fa(our of standing armies) 0t is a language common among them, #That no people can be "ept in order, unless the go(ernment ha(e an army to awe them into obedience5 it is necessary to support the dignity of go(ernment, to ha(e a military establishment)# And there will not be wanting a (ariety of plausible reason to *ustify the raising one, drawn from the danger we are in from the 0ndians on our frontiers, or from the 1uropean pro(inces in our neighbourhood) 0f to this we add, that an army will afford a decent support, and agreeable employment to the young men of many families, who are too indolent to follow occupations that will re/uire care and industry, and too poor to li(e without doing any business;,< we can ha(e little reason to doubt, but that we shall ha(e a large standing army, as soon as this go(ernment can find money to pay them, and perhaps sooner) A writer, who is the boast of the ad(ocates of this new constitution, has ta"en great pains to shew, that this power was proper and necessary to be (ested in the general go(ernment) =e sets out with calling in /uestion the candour and integrity of those who ad(ance the ob*ection, and with insinuating, that it is their intention to mislead the people, by alarming their passions, rather than to con(ince them by arguments addressed to their understandings) The man who repro(es another for a fault, should be careful that he himself be not guilty of it) =ow far this writer has manifested a spirit of candour, and has pursued fair reasoning on this sub*ect, the impartial public will *udge, when his arguments pass before them in re(iew) =e first attempts to shew, that this ob*ection is futile and disingenuous, because the power to "eep up standing armies, in time of peace, is (ested, under the present go(ernment, in the legislature of e(ery state in the union, except two) ow this is so far from being true, that it is expressly declared, by the present articles of confederation, that no body of forces #shall be "ept up by any state, in time of peace, except such number only, as in the *udgment of the 3nited -tates in 'ongress assembled, shall be deemed re/uisite to garrison the forts necessary for the defence of such state)# ow, was it candid and ingenuous to endea(our to persuade the public, that the general go(ernment had no other power than your own legislature ha(e on this head5 when the truth is, your legislature ha(e no authority to raise and "eep up any forces9

=e next tells us, that the power gi(en by this constitution, on this head, is similar to that which 'ongress possess under the present confederation) As little ingenuity is manifested in this representation as in that of the former) 0 shall not underta"e to en/uire whether or not 'ongress are (ested with a power to "eep up a standing army in time of peace5 it has been a sub*ect) warmly debated in 'ongress, more than once, since the peace5 and one of the most respectable states in the union, were so fully con(inced that they had no such power, that they expressly instructed their delegates to enter a solemn protest against it on the *ournals of 'ongress, should they attempt to exercise it) $ut should it be admitted that they ha(e the power, there is such a stri"ing dissimilarity between the restrictions under which the present 'ongress can exercise it, and that of the proposed go(ernment, that the comparison will ser(e rather to shew the impropriety of (esting the proposed go(ernment with the power, than of *ustifying it) 0t is ac"nowledged by this writer, that the powers of 'ongress, under the present confederation, amount to little more than that of recommending) 0f they determine to raise troops, they are obliged to effect it through the authority of the state legislatures) This will, in the first instance, be a most powerful restraint upon them, against ordering troops to be raised) $ut if they should (ote an army, contrary to the opinion and wishes of the people, the legislatures of the respecti(e states would not raise them) $esides, the present 'ongress hold their places at the will and pleasure of the legislatures of the states who send them, and no troops can be raised, but by the assent of nine states out of the thirteen) 'ompare the power proposed to be lodged in the legislature on this head, under this constitution, with that (ested in the present 'ongress, and e(ery person of the least discernment, whose understanding is not totally blinded by pre*udice, will percei(e, that they bear no analogy to each other) 3nder the present confederation, the representati(es of nine states, out of thirteen, must assent to the raising of troops, or they cannot be le(ied8 under the proposed constitution, a less number than the representati(es of two states, in the house of representati(es, and the representati(es of three states and an half in the senate, with the assent of the president, may raise any number of troops they please) The present 'ongress are restrained from an undue exercise of this power, from this consideration, they "now ;that< the state legislatures, through whose authority it must be carried into effect, would not comply with the re/uisition for the purpose, if it was e(idently opposed to the public good8 the proposed constitution authori,es the legislature to carry their determinations into execution, without the inter(ention of any other body between them and the people) The 'ongress under the present form are amenable to, and remo(able by, the legislatures of the respecti(e states, and are chosen for one year only8 the proposed constitution does not ma"e the members of the legislature accountable to, or remo(eable by the state legislatures at all5 and they are chosen, the one house for six, and the other for two years5 and cannot be remo(ed until their time of ser(ice is expired, let them conduct ;themsel(es< e(er so badly) 6 The public will *udge, from the abo(e comparison, how *ust a claim this writer has to that candour he affects to possess) 0n the mean time, to con(ince him, and the ad(ocates for this system, that 0 possess some share of candor, 0 pledge myself to gi(e up all opposition to it, on the head of standing armies, if the power to raise them be restricted as it is in the present confederation5 and 0 belie(e 0 may safely answer, not only for myself, but for all who ma"e the ob*ection, that they will be satisfied with less)

$rutus)$

1*2 .anuar/ 1788

To the People of the tate of !e"-#or$%The liberties of a people are in danger from a large standing army, not only because the rulers may employ them for the purposes of supporting themsel(es in any usurpations of power, which they may see proper to exercise, but there is great ha,ard, that an army will sub(ert the forms of the go(ernment, under whose authority, they are raised, and establish one, according to the pleasure of their leader) .e are informed, in the faithful pages of history, of such e(ents fre/uently happening) 6 Two instances ha(e been mentioned in a former paper) They are so remar"able, that they are worthy of the most careful attention of e(ery lo(er of freedom) 6 They are ta"en from the history of the two most powerful nations that ha(e e(er existed in the world5 and who are the most renowned, for the freedom they en*oyed, and the excellency of their constitutions8 6 0 mean %ome and $ritain) 0n the first, the liberties of the commonwealth was destroyed, and the constitution o(erturned, by an army, lead by &ulius 'esar, who was appointed to the command, by the constitutional authority of that commonwealth) =e changed it from a free republic, whose fame had sounded, and is still celebrated by all the world, into that of the most absolute despotism) A standing army effected this change, and a standing army supported it through a succession of ages, which are mar"ed in the annals of history, with the most horrid cruelties, bloodshed, and carnage5 6 The most de(ilish, beastly, and unnatural (ices, that e(er punished or disgraced human nature) The same army, that in $ritain, (indicated the liberties of that people from the encroachments and despotism of a tyrant "ing, assisted 'romwell, their +eneral, in wresting from the people, that liberty they had so dearly earned) !ou may be told, these instances will not apply to our case8 6 $ut those who would persuade you to belie(e this, either mean to decei(e you, or ha(e not themsel(es considered the sub*ect) 0 firmly belie(e, no country in the world had e(er a more patriotic army, than the one which so ably ser(ed this country, in the late war) $ut had the +eneral who commanded them, been possessed of the spirit of a &ulius 'esar or a 'romwell, the liberties of this country, had in all probability, terminated with the war5 or had they been maintained, might ha(e cost more blood and treasure, than was expended in the conflict with +reat-$ritain) .hen an anonimous writer addressed the officers of the army at the close of the war, ad(ising them not to part with their arms, until *ustice was done them 6 the effect it had is well "nown) 0t affected them li"e an electric shoc") =e wrote li"e 'esar5 and had the commander in chief, and a few more officers of ran", countenanced the measure, the

desperate resolution had been ta"en, to refuse to disband) .hat the conse/uences of such a determination would ha(e been, hea(en only "nows) 6 The army were in the full (igor of health and spirits, in the habit of discipline, and possessed of all our military stores and apparatus) They would ha(e ac/uired great accessions of strength from the country) 6 Those who were disgusted at our republican forms of go(ernment Ffor such there then were, of high ran" among usG would ha(e lent them all their aid) 6 .e should in all probability ha(e seen a constitution and laws, dictated to us, at the head of an army, and at the point of a bayonet, and the liberties for which we had so se(erely struggled, snatched from us in a moment) 0t remains a secret, yet to be re(ealed, whether this measure was not suggested, or at least countenanced, by some, who ha(e had great influence in producing the present system) 6 Fortunately indeed for this country, it had at the head of the army, a patriot as well as a general5 and many of our principal officers, had not abandoned the characters of citi,ens, by assuming that of soldiers, and therefore, the scheme pro(ed aborti(e) $ut are we to expect, that this will always be the case9 Are we so much better than the people of other ages and of other countries, that the same allurements of power and greatness, which led them aside from their duty, will ha(e no influence upon men in our country9 -uch an idea, is wild and extra(agant) 6 =ad we indulged such a delusion, enough has appeared in a little time past, to con(ince the most credulous, that the passion for pomp, power and greatness, wor"s as powerfully in the hearts of many of our better sort, as it e(er did in any country under hea(en) 6 .ere the same opportunity again to offer, we should (ery probably be grossly disappointed, if we made dependence, that all who then re*ected the o(erture, would do it again) From these remar"s, it appears, that the e(il to be feared from a large standing army in time of peace, does not arise solely from the apprehension, that the rulers may employ them for the purpose of promoting their own ambitious (iews, but that e/ual, and perhaps greater danger, is to be apprehended from their o(erturning the constitutional powers of the go(ernment, and assuming the power to dictate any form they please) The ad(ocates for power, in support of this right in the proposed go(ernment, urge that a restraint upon the discretion of the legislatures, in respect to military establishments in time of peace, would be improper to be imposed, because they say, it will be necessary to maintain small garrisons on the frontiers, to guard against the depredations of the 0ndians, and to be prepared to repel any encroachments or in(asions that may be made by -pain or $ritain) The amount of this argument striped of the abundant (erbages with which the author has dressed it, is this8 0t will probably be necessary to "eep up a small body of troops to garrison a few posts, which it will be necessary to maintain, in order to guard against the sudden encroachments of the 0ndians, or of the -paniards and $ritish5 and therefore, the general go(ernment ought to be in(ested with power to raise and "eep up a standing army in time of peace, without restraint5 at their discretion) 0 confess, 0 cannot percei(e that the conclusion follows from the premises) >ogicians say, it is not good reasoning to infer a general conclusion from particular premises8 though 0 am not much of a >ogician, it seems to me, this argument is (ery li"e that species of reasoning)

.hen the patriots in the parliament in +reat-$ritain, contended with such force of argument, and all the powers of elo/uence, against "eeping up standing armies in time of peace, it is ob(ious, they ne(er entertained an idea, that small garrisons on their frontiers, or in the neighbourhood of powers, from whom they were in danger of encroachments, or guards, to ta"e care of public arsenals would thereby be prohibited) The ad(ocates for this power farther urge that it is necessary, because it may, and probably will happen, that circumstances will render it re/uisite to raise an army to be prepared to repel attac"s of an enemy, before a formal declaration of war, which in modern times has fallen into disuse) 0f the constitution prohibited the raising an army, until a war actually commenced, it would depri(e the go(ernment of the power of pro(iding for the defence of the country, until the enemy were within our territory) 0f the restriction is not to extend to the raising armies in cases of emergency, but only to the "eeping them up, this would lea(e the matter to the discretion of the legislature5 and they might, under the pretence that there was danger of an in(asion, "eep up the army as long as they *udged proper 6 and hence it is inferred, that the legislature should ha(e authority to raise and "eep up an army without any restriction) $ut from these premises nothing more will follow than this, that the legislature should not be so restrained, as to put it out of their power to raise an army, when such exigencies as are instanced shall arise) $ut it does not thence follow, that the go(ernment should be empowered to raise and maintain standing armies at their discretion as well in peace as in war) 0f indeed, it is impossible to (est the general go(ernment with the power of raising troops to garrison the frontier posts, to guard arsenals, or to be prepared to repel an attac", when we saw a power preparing to ma"e one, without gi(ing them a general and indefinite authority, to raise and "eep up armies, without any restriction or /ualification, then this reasoning might ha(e weight5 but this has not been pro(ed nor can it be) 0t is admitted that to prohibit the general go(ernment, from "eeping up standing armies, while yet they were authorised to raise them in case of exigency, would be an insufficient guard against the danger) A discretion of such latitude would gi(e room to elude the force of the pro(ision) 0t is also admitted that an absolute prohibition against raising troops, except in cases of actual war, would be improper5 because it will be re/uisite to raise and support a small number of troops to garrison the important frontier posts, and to guard arsenals5 and it may happen, that the danger of an attac" from a foreign power may be so imminent, as to render it highly proper we should raise an army, in order to be prepared to resist them) $ut to raise and "eep up forces for such purposes and on such occasions, is not included in the idea, of "eeping up standing armies in times of peace) 0t is a thing (ery practicable to gi(e the go(ernment sufficient authority to pro(ide for these cases, and at the same time to pro(ide a reasonable and competent security against the e(il of a standing army 6 a clause to the following purpose would answer the end8 As standing armies in time of peace are dangerous to liberty, and ha(e often been the means of o(erturning the best constitutions of go(ernment, no standing army, or troops of any description whatsoe(er, shall be raised or "ept up by the legislature, except so many as shall be necessary for guards to the arsenals of the 3nited -tates, or for garrisons to such posts on the frontiers, as it shall be deemed absolutely necessary to hold, to secure the inhabitants, and facilitate the trade

with the 0ndians8 unless when the 3nited -tates are threatened with an attac" or in(asion from some foreign power, in which case the legislature shall be authorised to raise an army to be prepared to repel the attac"5 pro(ided that no troops whatsoe(er shall be raised in time of peace, without the assent of two thirds of the members, composing both houses of the legislature) A clause similar to this would afford sufficient latitude to the legislature to raise troops in all cases that were really necessary, and at the same time competent security against the establishment of that dangerous engine of despotism a standing army) The same writer who ad(ances the arguments 0 ha(e noticed, ma"es a number of other obser(ations with a (iew to pro(e that the power to raise and "eep up armies, ought to be discretionary in the general legislature5 some of them are curious5 he instances the raising of troops in 7assachusetts and 2ennsyl(ania, to shew the necessity of "eeping a standing army in time of peace5 the least reflection must con(ince e(ery candid mind that both these cases are totally foreign to his purpose 6 7assachusetts raised a body of troops for six months, at the expiration of which they were to disband of course5 this loo"s (ery little li"e a standing army) $ut beside, was that commonwealth in a state of peace at that time9 -o far from it that they were in the most (iolent commotions and contents, and their legislature had formally declared that an unnatural rebellion existed within the state) The situation of 2ennsyl(ania was similar5 a number of armed men had le(ied war against the authority of the state, and openly a(owed their intention of withdrawing their allegiance from it) To what purpose examples are brought, of states raising troops for short periods in times of war or insurrections, on a /uestion concerning the propriety of "eeping up standing armies in times of peace, the public must *udge) 0t is farther said, that no danger can arise from this power being lodged in the hands of the general go(ernment, because the legislatures will be a chec" upon them, to pre(ent their abusing it) This is offered, as what force there is in it will hereafter recei(e a more particular examination) At present, 0 shall only remar", that it is difficult to concei(e how the state legislatures can, in any case, hold a chec" o(er the general legislature, in a constitutional way) The latter has, in e(ery instance to which their powers extend, complete controul o(er the former) The state legislatures can, in no case, by law, resolution, or otherwise, of right, pre(ent or impede the general go(ernment, from enacting any law, or executing it, which this constitution authori,es them to enact or execute) 0f then the state legislatures chec" the general legislatures ;sicet us en/uire how the *udicial power will effect an extension of the legislati(e authority) 2erhaps the *udicial power will not be able, by direct and positi(e decrees, e(er to direct the legislature, because it is not easy to concei(e how a /uestion can be brought before them in a course of legal discussion, in which they can gi(e a decision, declaring, that the legislature ha(e certain powers which they ha(e not exercised, and which, in conse/uence of the determination of the *udges, they will be bound to exercise) $ut it is easy to see, that in their ad*udications they may establish certain principles, which being recei(ed by the legislature, will enlarge the sphere of their power beyond all bounds) 0t is to be obser(ed, that the supreme court has the power, in the last resort, to determine all /uestions that may arise in the course of legal discussion, on the meaning and construction of the constitution) This power they will hold under the constitution, and independent of the legislature) The latter can no more depri(e the former of this right, than either of them, or both of them together, can ta"e from the president, with the ad(ice of the senate, the power of ma"ing treaties, or appointing ambassadors) 0n determining these /uestions, the court must and will assume certain principles, from which they will reason, in forming their decisions) These principles, whate(er they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers) This appears e(ident from this consideration, that if the legislature pass laws, which, in the *udgment of the court, they are not authorised to do by the constitution, the court will not ta"e notice of them5 for it will not be denied, that the constitution

is the highest or supreme law) And the courts are (ested with the supreme and uncontroulable power, to determine, in all cases that come before them, what the constitution means5 they cannot, therefore, execute a law, which, in their *udgment, opposes the constitution, unless we can suppose they can ma"e a superior law gi(e way to an inferior) The legislature, therefore, will not go o(er the limits by which the courts may ad*udge they are confined) And there is little room to doubt but that they will come up to those bounds, as often as occasion and opportunity may offer, and they may *udge it proper to do it) For as on the one hand, they will not readily pass laws which they "now the courts will not execute, so on the other, we may be sure they will not scruple to pass such as they "now they will gi(e effect, as often as they may *udge it proper) From these obser(ations it appears, that the *udgment of the *udicial, on the constitution, will become the rule to guide the legislature in their construction of their powers) .hat the principles are, which the courts will adopt, it is impossible for us to say5 but ta"ing up the powers as 0 ha(e explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be (ery liberal ones) .e ha(e seen, that they will be authori,ed to gi(e the constitution a construction according to its spirit and reason, and not to confine themsel(es to its letter) To disco(er the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in (iew) These are expressed in the preamble, in the following words, (i,) #.e, the people of the 3nited -tates, in order to form a more perfect union, establish *ustice, insure domestic tran/uility, pro(ide for the common defence, promote the general welfare, and secure the blessings of liberty to oursel(es and our posterity, do ordain and establish this constitution,# Cc) 0f the end of the go(ernment is to be learned from these words, which are clearly designed to declare it, it is ob(ious it has in (iew e(ery ob*ect which is embraced by any go(ernment) The preser(ation of internal peace 6 the due administration of *ustice 6 and to pro(ide for the defence of the community, seems to include all the ob*ects of go(ernment5 but if they do not, they are certainly comprehended in the words, #to pro(ide for the general welfare)# 0f it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the 3nited -tates, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a go(ernment which is to extend to e(ery case for which any go(ernment is instituted, whether external or internal) The courts, therefore, will establish this as a principle in expounding the constitution, and will gi(e e(ery part of it such an explanation, as will gi(e latitude to e(ery department under it, to ta"e cogni,ance of e(ery matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of pri(ate *ustice, and to regulating the internal and local affairs of the different parts) -uch a rule of exposition is not only consistent with the general spirit of the preamble, but it will stand confirmed by considering more minutely the different clauses of it) The first ob*ect declared to be in (iew is, #To form a perfect union)# 0t is to be obser(ed, it is not an union of states or bodies corporate5 had this been the case the existence of the state

go(ernments, might ha(e been secured) $ut it is a union of the people of the 3nited -tates considered as one body, who are to ratify this constitution, if it is adopted) ow to ma"e a union of this "ind perfect, it is necessary to abolish all inferior go(ernments, and to gi(e the general one compleat legislati(e, executi(e and *udicial powers to e(ery purpose) The courts therefore will establish it as a rule in explaining the constitution to gi(e it such a construction as will best tend to perfect the union or ta"e from the state go(ernments e(ery power of either ma"ing or executing laws) The second ob*ect is #to establish *ustice)# This must include not only the idea of instituting the rule of *ustice, or of ma"ing laws which shall be the measure or rule of right, but also of pro(iding for the application of this rule or of administering *ustice under it) And under this the courts will in their decisions extend the power of the go(ernment to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the constitution they should do, to wit, pass laws and pro(ide for the execution of them, for the general distribution of *ustice between man and man) Another end declared is #to insure domestic tran/uility)# This comprehends a pro(ision against all pri(ate breaches of the peace, as well as against all public commotions or general insurrections5 and to attain the ob*ect of this clause fully, the go(ernment must exercise the power of passing laws on these sub*ects, as well as of appointing magistrates with authority to execute them) And the courts will adopt these ideas in their expositions) 0 might proceed to the other clause, in the preamble, and it would appear by a consideration of all of them separately, as it does by ta"ing them together, that if the spirit of this system is to be "nown from its declared end and design in the preamble, its spirit is to sub(ert and abolish all the powers of the state go(ernment, and to embrace e(ery ob*ect to which any go(ernment extends) As it sets out in the preamble with this declared intention, so it proceeds in the different parts with the same idea) Any person, who will peruse the 8th section with attention, in which most of the powers are enumerated, will percei(e that they either expressly or by implication extend to almost e(ery thing about which any legislati(e power can be employed) $ut if this e/uitable mode of construction is applied to this part of the constitution5 nothing can stand before it) This will certainly gi(e the first clause in that article a construction which 0 confess 0 thin" the most natural and grammatical one, to authorise the 'ongress to do any thing which in their *udgment will tend to pro(ide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases) FTo be continued!G

1II12 Februar/ 1788 F"ontinued rom last Thursday#s paper!G This same manner of explaining the constitution, will fix a meaning, and a (ery important one too, to the 1Hth ;18th9< clause of the same section, which authorises the 'ongress to ma"e all laws which shall be proper and necessary for carrying into effect the foregoing powers, Cc) A (oluminous writer in fa(or of this system, has ta"en great pains to con(ince the public, that this

clause means nothing8 for that the same powers expressed in this, are implied in other parts of the constitution) 2erhaps it is so, but still this will undoubtedly be an excellent auxilliary to assist the courts to disco(er the spirit and reason of the constitution, and when applied to any and e(ery of the other clauses granting power, will operate powerfully in extracting the spirit from them) 0 might instance a number of clauses in the constitution, which, if explained in an e$uitable manner, would extend the powers of the go(ernment to e(ery case, and reduce the state legislatures to nothing5 but, 0 should draw out my remar"s to an undue length, and 0 presume enough has been said to shew, that the courts ha(e sufficient ground in the exercise of this power, to determine, that the legislature ha(e no bounds set to them by this constitution, by any supposed right the legislatures of the respecti(e states may ha(e, to regulate any of their local concerns) 0 proceed, Hd, To in/uire, in what manner this power will increase the *urisdiction of the courts) 0 would here obser(e, that the *udicial power extends, expressly, to all ci(il cases that may arise sa(e such as arise between citi,ens of the same state, with this exception to those of that description, that the *udicial of the 3nited -tates ha(e cogni,ance of cases between citi,ens of the same state, claiming lands under grants of different states) othing more, therefore, is necessary to gi(e the courts of law, under this constitution, complete *urisdiction of all ci(il causes, but to comprehend cases between citi,ens of the same state not included in the foregoing exception) 0 presume there will be no difficulty in accomplishing this) othing more is necessary than to set forth, in the process, that the party who brings the suit is a citi,en of a different state from the one against whom the suit is brought, and there can be little doubt but that the court will ta"e cogni,ance of the matter, and if they do, who is to restrain them9# 0ndeed, 0 will freely confess, that it is my decided opinion, that the courts ought to ta"e cogni,ance of such causes, under the powers of the constitution) For one of the great ends of the constitution is, #to establish *ustice)# This supposes that this cannot be done under the existing go(ernments of the states5 and there is certainly as good reason why indi(iduals, li(ing in the same state, should ha(e *ustice, as those who li(e in different states) 7oreo(er, the constitution expressly declares, that #the citi,ens of each state shall be entitled to all the pri(ileges and immunities of citi,ens in the se(eral states)# 0t will therefore be no fiction, for a citi,en of one state to set forth, in a suit, that he is a citi,en of another5 for he that is entitled to all the pri(ileges and immunities of a country, is a citi,en of that country) And in truth, the citi,en of one state will, under this constitution, be a citi,en of e(ery state) $ut supposing that the party, who alledges that he is a citi,en of another state, has recourse to fiction in bringing in his suit, it is well "nown, that the courts ha(e high authority to plead, to *ustify them in suffering actions to be brought before them by such fictions) 0n my last number 0 stated, that the court of exche/uer tried all causes in (irtue of such a fiction) The court of "ing?s bench, in 1ngland, extended their *urisdiction in the same way) Originally, this court held pleas, in ci(il cases, only of trespasses and other in*uries alledged to be committed %i et armis) They might li"ewise, says $lac"stone, upon the di(ision of the aula re&ia, ha(e originally held pleas of any other ci(il action whatsoe(er Fexcept in real actions which are now (ery seldom in useG

pro(ided the defendant was an officer of the court, or in the custody of the marshall or prison"eeper of this court, for breach of the peace, Cc) 0n process of time, by a fiction, this court began to hold pleas of any personal action whatsoe(er5 it being surmised, that the defendant has been arrested for a supposed trespass that #he has ne(er committed, and being thus in the custody of the marshall of the court, the plaintiff is at liberty to proceed against him, for any other personal in*ury8 which surmise of being in the marshall?s custody, the defendant is not at liberty to dispute)# $y a much less fiction, may the pleas of the courts of the 3nited -tates extend to cases between citi,ens of the same state) 0 shall add no more on this head, but proceed briefly to remar", in what way this power will diminish and destroy both the legislati(e and *udicial authority of the states) 0t is ob(ious that these courts will ha(e authority to decide upon the (alidity of the laws of any of the states, in all cases where they come in /uestion before them) .here the constitution gi(es the general go(ernment exclusi(e *urisdiction, they will ad*udge all laws made by the states, in such cases, (oid ab initio) .here the constitution gi(es them concurrent *urisdiction, the laws of the 3nited -tates must pre(ail, because they are the supreme law) 0n such cases, therefore, the laws of the state legislatures must be repealed, restricted, or so construed, as to gi(e full effect to the laws of the union on the same sub*ect) From these remar"s it is easy to see, that in proportion as the general go(ernment ac/uires power and *urisdiction, by the liberal construction which the *udges may gi(e the constitution, will those of the states lose its rights, until they become so trifling and unimportant, as not to be worth ha(ing) 0 am much mista"en, if this system will not operate to effect this with as much celerity, as those who ha(e the administration of it will thin" prudent to suffer it) The remaining ob*ections to the *udicial power shall be considered in a future paper) $rutus)

1III*1 Februar/ 1788 =a(ing in the two preceding numbers, examined the nature and tendency of the *udicial power, as it respects the explanation of the constitution, 0 now proceed to the consideration of the other matters, of which it has cogni,ance) 6 The next paragraph extends its authority, to all cases, in law and e/uity, arising under the laws of the 3nited -tates) This power, as 0 understand it, is a proper one) The proper pro(ince of the *udicial power, in any go(ernment, is, as 0 concei(e, to declare what is the law of the land) To explain and enforce those laws, which the supreme power or legislature may pass5 but not to declare what the powers of the legislature are) 0 suppose the cases in e/uity, under the laws, must be so construed, as to gi(e the supreme court not only a legal, but e/uitable *urisdiction of cases which may be brought before them, or in other words, so, as to gi(e them, not only the powers which are now exercised by our courts of law, but those also, which are now exercised by our court of chancery) 0f this be the meaning, 0 ha(e no other ob*ection to the power, than what arises from the undue extension of the legislati(e power) For, 0 concei(e that the *udicial power should be commensurate with the legislati(e) Or, in other words, the supreme court should ha(e authority to determine /uestions arising under the laws of the union) The next paragraph which gi(es a power to decide in law and e/uity, on all cases arising under treaties, is unintelligible to me) 0 can readily comprehend what is meant by deciding a case under a treaty) For as treaties will be the law) of the land, e(ery person who ha(e rights or pri(ileges secured by treaty, will ha(e aid of the courts of law, in reco(ering them) $ut 0 do not understand, what is meant by e/uity arising under a treaty) 0 presume e(ery right which can be claimed under a treaty, must be claimed by (irtue of some article or clause contained in it, which gi(es the right in plain and ob(ious words5 or at least, 0 concei(e, that the rules for explaining treaties, are so well ascertained, that there is no need of ha(ing recourse to an e/uitable construction) 0f under this power, the courts are to explain treaties, according to what they concei(e are their spirit, which is nothing less than a power to gi(e them whate(er extension they may *udge proper, it is a dangerous and improper power) The cases affecting ambassadors, public ministers, and consuls 6 of admiralty and maritime *urisdiction5 contro(ersies to which the 3nited -tates are a party, and contro(ersies between states, it is proper should be under the cogni,ance of the courts of the union, because none but the general go(ernment, can, or ought to pass laws on their sub*ects) $ut, 0 concei(e the clause which extends the power of the *udicial to contro(ersies arising between a state and citi,ens of another state, improper in itself, and will, in its exercise, pro(e most pernicious and destructi(e) 0t is improper, because it sub*ects a state to answer in a court of law, to the suit of an indi(idual) This is humiliating and degrading to a go(ernment, and, what 0 belie(e, the supreme authority of no state e(er submitted to)

The states are now sub*ect to no such actions) All contracts entered into by indi(iduals with states, were made upon the faith and credit of the states5 and the indi(iduals ne(er had in contemplation any compulsory mode of obliging the go(ernment to fulfil its engagements) The e(il conse/uences that will flow from the exercise of this power, will best appear by tracing it in its operation) The constitution does not direct the mode in which an indi(idual shall commence a suit against a state or the manner in which the *udgement of the court shall be carried into execution, but it gi(es the legislature full power to pass all laws which shall be proper and necessary for the purpose) And they certainly must ma"e pro(ision for these purposes, or otherwise the power of the *udicial will be nugatory) For, to what purpose will the power of a *udicial be, if they ha(e no mode, in which they can call the parties before them9 Or of what use will it be, to call the parties to answer, if after they ha(e gi(en *udgement, there is no authority to execute the *udgment9 .e must, therefore, conclude, that the legislature will pass laws which will be effectual in this head) An indi(idual of one state will then ha(e a legal remedy against a state for any demand he may ha(e against a state to which he does not belong) 1(ery state in the union is largely indebted to indi(iduals) For the payment of these debts they ha(e gi(en notes payable to the bearer) At least this is the case in this state) .hene(er a citi,en of another state becomes possessed of one of these notes, he may commence an action in the supreme court of the general go(ernment5 and 0 cannot see any way in which he can be pre(ented from reco(ering) 0t is easy to see, that when this once happens, the notes of the state will pass rapidly from the hands of citi,ens of the state to those of other states) And when the citi,ens of other states possess them, they may bring suits against the state for them, and by this means, *udgments and executions may be obtained against the state for the whole amount of the state debt) 0t is certain the state, with the utmost exertions it can ma"e, will not be able to discharge the debt she owes, under a considerable number of years, perhaps with the best management, it will re/uire twenty or thirty years to discharge it) This new system will protract the time in which the ability of the state will enable them to pay off their debt, because all the funds of the state will be transferred to the general go(ernment, except those which arise from internal taxes) The situation of the states will be deplorable) $y this system, they will surrender to the general go(ernment, all the means of raising money, and at the same time, will sub*ect themsel(es to suits at law, for the reco(ery of the debts they ha(e contracted in effecting the re(olution) The debts of the indi(idual states will amount to a sum, exceeding the domestic debt of the 3nited -tates5 these will be left upon them, with power in the *udicial of the general go(ernment, to enforce their payment, while the general go(ernment will possess an exclusi(e command of the most producti(e funds, from which the states can deri(e money, and a command of e(ery other source of re(enue paramount to the authority of any state) 0t may be said that the apprehension that the *udicial power will operate in this manner is merely (isionary, for that the legislature will ne(er pass laws that will wor" these effects) Or if they were disposed to do it, they cannot pro(ide for le(ying an execution on a state, for where will the officer find property whereon to le(y9

To this 0 would reply, if this is a power which will not or cannot be executed, it was useless and unwise to grant it to the *udicial) For what purpose is a power gi(en which it is imprudent or impossible to exercise9 0f it be improper for a go(ernment to exercise a power, it is improper they should be (ested with it) And it is unwise to authorise a go(ernment to do what they cannot effect) As to the idea that the legislature cannot pro(ide for le(ying an execution on a state, 0 belie(e it is not well founded) 0 presume the last paragraph of the 8th section of article 1, gi(es the 'ongress express power to pass any laws they may *udge proper and necessary for carrying into execution the power (ested in the *udicial department) And they must exercise this power, or otherwise the courts of *ustice will not be able to carry into effect the authorities with which they are in(ested) For the constitution does not direct the mode in which the courts are to proceed, to bring parties before them, to try causes, or to carry the *udgment of the courts into execution) 3nless they are pointed out by law, how are these to proceed, in any of the cases of which they ha(e cogni,ance9 They ha(e the same authority to establish regulations in respect to these matters, where a state is a party, as where an indi(idual is a party) The only difficulty is, on whom shall process be ser(ed, when a state is a party, and how shall execution be le(ied) .ith regard to the first, the way is easy, either the executi(e or legislati(e of the state may be notified, and upon proof being made of the ser(ice of the notice, the court may proceed to a hearing of the cause) 1xecution may be le(ied on any property of the state, either real or personal) The treasury may be sei,ed by the officers of the general go(ernment, or any lands the property of the state, may be made sub*ect to sei,ure and sale to satisfy any *udgment against it) .hether the estate of any indi(idual citi,en may not be made answerable for the discharge of *udgments against the state, may be worth consideration) 0n some corporations this is the case) 0f the power of the *udicial under this clause will extend to the cases abo(e stated, it will, if executed, produce the utmost confusion, and in its progress, will crush the states beneath its weight) And if it does not extend to these cases, 0 confess myself utterly at a loss to gi(e it any meaning) For if the citi,en of one state, possessed of a written obligation, gi(en in pursuance of a solemn act of the legislature, ac"nowledging a debt due to the bearer, and promising to pay it, cannot reco(er in the supreme court, 0 can concei(e of no case in which they can reco(er) And it appears to me ridiculous to pro(ide for obtaining *udgment against a state, without gi(ing the means of le(ying execution) $rutus)

1I)*8 Februar/ 1788 The second paragraph of sect) Hd) art) I, is in these words8 #0n all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall ha(e original *urisdiction) 0n all the other cases before mentioned, the supreme court shall ha(e appellate *urisdiction, both as to law and fact, with such exceptions, and under such regulations as the 'ongress shall ma"e);#< Although it is proper that the courts of the general go(ernment should ha(e cogni,ance of all matters affecting ambassadors, foreign ministers, and consuls5 yet 0 /uestion much the propriety of gi(ing the supreme court original *urisdiction in all cases of this "ind) Ambassadors, and other public ministers, claim, and are entitled by the law of nations, to certain pri(ileges, and exemptions, both for their persons and their ser(ants) The meanest ser(ant of an ambassador is exempted by the law of nations from being sued for debt) -hould a suit be brought against such an one by a citi,en, through inad(ertency or want of information, he will be sub*ect to an action in the supreme court) All the officers concerned in issuing or executing the process will be liable to li"e actions) Thus may a citi,en of a state be compelled, at great expence and incon(eniency, to defend himself against a suit, brought against him in the supreme court, for inad(ertently commencing an action against the most menial ser(ant of an ambassador for a *ust debt) The appellate *urisdiction granted to the supreme court, in this paragraph, has *ustly been considered as one of the most ob*ectionable parts of the constitution8 under this power, appeals may be had from the inferior courts to the supreme, in e(ery case to which the *udicial power extends, except in the few instances in which the supreme court will ha(e original *urisdiction) $y this article, appeals will lie to the supreme court, in all criminal as well as ci(il causes) This 0 "now, has been disputed by some5 but 0 presume the point will appear clear to any one, who will attend to the connection of this paragraph with the one that precedes it) 0n the former, all the cases, to which the power of the *udicial shall extend, whether ci(il or criminal, are enumerated) There is no criminal matter, to which the *udicial power of the 3nited -tates will extend5 but such as are included under some one of the cases specified in this section) For this section is intended to define all the cases, of e(ery description, to which the power of the *udicial shall reach) $ut in all these cases it is declared, the supreme court shall ha(e appellate *urisdiction, except in those which affect ambassadors, other public ministers and consuls, and those in which a state shall be a party) 0f then this section extends the power of the *udicial, to criminal cases, it allows appeals in such cases) 0f the power of the *udicial is not extended to criminal matters by this section, 0 as", by what part of this system does it appear, that they ha(e any cogni,ance of them9

0 belie(e it is a new and unusual thing to allow appeals in criminal matters) 0t is contrary to the sense of our laws, and dangerous to the li(es and liberties of the citi,en) As our law now stands, a person charged with a crime has a right to a fair and impartial trial by a *ury of his country ;county9