Tuesday, October 11, 2016

'The Federalist'

Review of:
The Federalist Papers (by Alexander Hamilton, James Madison, and John Jay, 1788).

It is a common reproach against the Americans that, with many opportunities, they should have produced so few books of any real power or originality, nor is the reproach by any means unjust. Since the Declaration of Independence they have had no Franklin, no Hamilton, it might almost be said no Jonathan Edwards—though whether that is a loss is quite another question. On the other hand, they have been faithful enough to the memory of the eminent men whom they did produce in former times. The few remarkable books which were formerly written in America have been made the most of, and have been constantly republished.

The Federalist is one of the most important of these, and though comparatively little known in this country, at least of late years, it appears to have been republished continually in America; and a most elaborate edition—as handsome as type and paper can make it, and enriched with a preface which discusses at vast length, and with every appearance of great research, every point connected with the authorship of the work, and with the particulars of the editions through which it has run—has lately been published in New York.

The Federalist is a book altogether unlike anything in English literature. It is a record of the controversies which attended the establishment of the American Constitution, and may be taken as a manifesto setting forth, on the part of the authors of that measure, the views which presided over their work. As most of our readers are aware, the relations between the thirteen colonies which proclaimed their independence in 1776, were at first regulated by articles of Confederation, by which each State was recognised as an independent body, though certain powers were delegated to Congress.

After the conclusion of the war, the Confederation fell into the greatest discredit, both at home and abroad. It was inefficient to the last degree. Its great leading defect was that each State retained so much power that the Central Government had practically none at all. If it wanted troops or money, it had to make requisitions on the separate States. If they refused to obey, which they often did, there was no remedy except civil war, and the consciousness of this utterly paralysed the Government. The money credit of the United States sank to the lowest ebb, their finances fell into inextricable confusion, their military force almost disappeared, and the Confederacy seemed likely to fall in pieces from inherent weakness.

In this state of things a Convention met at Philadelphia, in the summer of 1787, to settle the scheme of a general Constitution. In September it was submitted to the States, with a proviso that, as soon as nine of them ratified the Constitution, proceedings should be commenced under it; and during the latter part of 1787 and the beginning of 1788, the series of letters afterwards collected under the title of the Federalist appeared in the New York papers under the signature of 'Publius.' Their object was to explain the nature and benefits of the proposed Constitution, and to persuade the States in general, and especially the State of New York, to accept it.

There is, of course, a literary controversy as to the authorship, which those who care for such matters may read about in the preface to the present edition. It appears, however, that, whoever may have written particular papers—-there are in all eighty-five — Hamilton wrote nearly three-quarters of the whole, and Jay and Madison the remainder. Jay, according to one account, wrote four, and Madison fourteen, besides three others in which he was assisted by Hamilton. This, however, is a small matter. Substantially, Hamilton may be regarded as the author, as he was also the most active and conspicuous of the authors of the Constitution itself.

It must be admitted that it requires a considerable effort to read the Federalist, especially in the present day. It belongs, as we have said, to a class of literature of which we have hardly any examples in this time and country. For years past our political speculations have been assuming more and more an historical character. We always begin, and very wisely, by examining the motives and circumstances , which led to the establishment of a given institution, the way in which in course of time it has been adapted to changes, and its aspect in relation to the existing state of affairs.

The Federalist is almost entirely prospective. A great many historical examples are cited in support of the author's theories, but the bulk of it consists of conjectures as to the effects of particular measures recommended by the Convention, and as to the way in which popular objections to them may be parried. These inquiries are in one sense altogether superannuated. The experience of nearly eighty years has shown that many of the objections, and many of the answers to the objections, proceeded upon mistaken views, and has also disclosed many circumstances which the authors of the Constitution overlooked.

But if experience deprives the Federalist of interest in one direction, it unquestionably adds new interest to it in another. We are now in a position to form some sort of opinion as to the success of one of the greatest political experiments ever made in the history of the world, and it is in the last degree curious and instructive to compare the history of the experiment itself, with the anticipations of those who took the chief part in trying it.

The Constitutions of other nations have, for the most part, been made by slow degrees. Rome was built we hardly know how. It gradually became a great power in the world. Its municipal officers became imperial; it passed through all the various changes of growth, maturity, and decay; and at last it passed away from the world, broken down partly by the Church, partly by the barbarians. From its ruins sprang modern Europe with all its varied institutions, put together bit by bit, and transformed from generation to generation in a thousand ways. The case of the United States is almost the only one on record, in which political builders assembled together, and proposed to erect a tower impregnable to the floods which had ravaged the rest of the world, and reaching a long way towards heaven. The Federalist is the memorial of those plans and hopes on which history is the comment. It is our object to compare the anticipation with the result.

The first thing that strikes a modern reader of the Federalist is the complete absence from it of all those faults which we are apt to consider characteristic of American composition. It is altogether free from the least touch of extravagance and affectation. Indeed, the fault of the style is that it carries gravity almost to the point of stiffness and cumbrousness. In the next place, there is not a word of exultation in it. The writers do not appear to anticipate any sort of new era, nor are they at all excited by the notion— which in the present day appears ineradicable from American minds—that their country is after all the greatest, the richest, the most powerful in the world. A more sober book never was written, nor would it be easy to mention one which showed more frequent traces, in every part, of the calmness, we might almost say of the austerity, with which experience had led the author to estimate human nature. He obviously thinks that it is what it always was, and that it never was anything very splendid.

Without entering upon minute discussions, the interest of which was transitory, we will try to trace out the broad outline of the problem which lay before the authors of the Federal Constitution as they conceived it, and to show the sort of solution which they wished for, and at which they ultimately arrived. In the first place, they were genuine republicans. They held that, in all governments, sovereignty is (by which word they seem to have meant ought to be) in the people, and that the government enjoys so much power only as the people surrender for the common good.

To Englishmen in general this appears a mere piece of bad rhetoric, and it almost always is so; but in the mouths of Hamilton and Madison it had a distinct and most important meaning, though, as it appears to us, a mistaken one. This meaning was that, in the constitution of a government, the power given to every branch, and to the whole body put together, ought to be expressly limited, so that there should be no body (like the British Parliament) regarded by law as omnipotent; and they further considered that, in order to preserve these limits, the power so conferred ought to be divided into different departments —executive, legislative, and judicial—as nearly as possible independent of each other.

This doctrine, the result of the somewhat hasty and incomplete political and social theories of the eighteenth century, had immense practical consequences. By drawing a sharp clear outline round each man's sphere of authority, and round the sphere of the authority of the Government itself taken as a whole, it greatly diminished the moral checks upon power.

Assume that a ruler is a mere agent for a limited purpose, and practically remind him of this by hemming him in on all sides with legal restraints, and he ceases to feel himself responsible for the condition of the country, and becomes, by the nature of the party man, acting for the interests of his masters— those, namely, who put him where he is. Deal with power simply as an existing fact, lay down no propositions at all about its origin, leave its precise extent undefined, and you not only provide a reserved fund of vigour which on great occasions may be capable of efforts essential to the preservation of the community, but you invest the holder of this authority with characteristics which, both in his own eyes and in the eyes of others, put him under moral obligations to the community at large, far stronger than the legal obligations which restrain a mere official, and far more wholesome than the moral obligations which bind a man to his party.

An hereditary King, or a President for life with the power of a King, would have been an unspeakable blessing to the United States at the time of their civil war. The indefinite fear of a possible revolution would have given the public a much stronger hold on him than the definite fear of not being re-elected gives them over their President, and the consciousness that he was the head of a great nation, would have been a very different thing, to a generous mind, from the consciousness that he was the head of one of the parties in the State.

A subordinate object, which the authors of the Constitution appear to have considered most important, was to comply with Montesquieu's maxim that the legislative, judicial, and executive powers should be properly divided. A considerable part of the Federalist is filled with arguments to show that this maxim had not been violated, at least in its spirit. It is a singular proof of the power which abstract speculation exercises, and especially of the power which it exercised in America eighty years ago, that this objection appears to have been most popular and effective, and that the authors of the Constitution seem to have felt themselves greatly concerned to give it an elaborate answer.

Considering that all the three sets of powers were by the theory, and also by the practice, of the Constitution, vested ultimately in a body so numerous that it may, without much practical inaccuracy, be described as the bulk of the population of the United States, the question seems to have been treated with undue attention. There is, however, a vast deal of ingenious speculation on the subject, the merits of which can hardly be estimated without an acquaintance which an Englishman can hardly be expected to possess with the actual working of the Constitution.

Subject to the general principle of republicanism, which lies at the bottom of the whole Constitution, and also to the division of power to which so much importance was attached, there can be little doubt that the object of the authors of the Constitution was to make the Federal Government as strong as possible, and to reduce the rights of the individual States within the narrowest limits. The great difficulty which they had to encounter was in the jealousy with which the individual States viewed infringements on their authority, and the most interesting part of the book to modern readers is the light which it throws on this part of the subject.

It is very remarkable that the writers in the Federalist appear unable to find any distinct objection to their plan with which to grapple. Their general line of argument is that the inefficiency of the existing Confederacy is an admitted fact; that the only way in which its inefficiency can be remedied is by constituting a national Government, acting directly upon individuals within the sphere of its authority, and not, as the old Confederacy did, upon States; that it is also admitted that the thirteen colonies are, if possible, to form one and not several nations; and that from all these admissions it follows that some such scheme as the one proposed must be adopted.

The rest of the book is occupied with detailed explanations of particular parts of the scheme, and with answers to special objections. This argument was practically irresistible, and it prevailed; but it is obvious, not only from the Federalist, but from other sources, that it prevailed in spite of misgivings which were not at all the less real or important, because they appear to have been somewhat indefinite.

It would appear as if those who objected to the Union were unable to tell from what quarter the storm was to come, or in what way the Constitution was to enable it to act; but they seem to have felt that there was something wrong—that a central authority such as it was proposed to set up would, somehow or other, and at some time or other, contrive to tyrannise over the individual States. The principal jealousy was directed against the Government. It was supposed that Congress, that the Senate, that the President would tyrannise. There is a grave argument in one place to show that a two-years' tenure of power would not give the members of Congress a dangerous influence.

To this the writers of the Federalist reply by detailed arguments applied to specific parts of the scheme. They show how little is to be feared from Congress, from the Senate, from the Judges, from the President. Their tone throughout is that of people excusing themselves for being so aristocratic, and setting up officers whose authority may at first sight appear liable to abuse. They explain that the officers of the Union are not really so formidable as they look; but it is sufficiently obvious that they would have liked, had they ventured to do so, to give more power to the Government, and that they did, in fact, go as far in that direction as the temper of the times would permit.

They treat from time to time, and as much apparently as they dare, of the danger of the tyranny of Legislatures, and especially of the tyranny of one part of the nation over the other—an evil against which they hope to guard by the great diversity of interests existing in the Union. This they hope will prevent any majority from combining for the purpose of oppressing a minority. From the beginning of the book to the end of it there is hardly any mention of slavery. It is, indeed, referred to with the strongest disapproval in connection with the clause which gave the slave-owners votes for three-fifths of their slaves. The Northern States considered this unfair, as giving the South an undue advantage in elections, but throughout the whole discussion it never seems to be supposed that questions connected with this subject would produce any quarrel between the States. The diversity of commercial interests is the only one to which the writers refer.

Stated in the most general way, the drift of the Federalist may be described somewhat as follows: Do not be afraid that this scheme of government which we offer you will injure your State rights. It may look formidable. It has, no doubt, that amount of power which is essential to efficiency; yet, for this, that, or the other reason, it will not oppress you or any of you, and it will make the United States into a great and free republic—one, for all purposes for which unity is desirable, many, for purposes for which multiplicity is more convenient.

Till within the last few years, the Constitution was supposed to have stood the test of experience, and was regarded in America with passionate admiration, as a perfect masterpiece of human sagacity. Of late it has been the fashion to regard it as a failure. The question whether either of these views is even proximately just is a very hard one.

The great leading feature in American history— a feature which is not the less important because it is constantly lost sight of—is that, just at the time when the country gained its independence, and completed its arrangements for government, an age of discoveries began which poured such a flood of men and money into the continent, then lying almost entirely vacant, as was never before in the history of mankind poured into any part of the world. The prodigious and almost fabulous rapidity of the progress of the country in all kinds of wealth, protected its institutions from the strain which might otherwise have been put upon them, by turning the whole souls of the people towards the great object of devouring, as rapidly as possible, the enormous and almost illimitable meal which had been prepared for them.

During the whole of this period the Constitution worked excellently, and this—though people were inclined to forget it in the excitement of the civil war—is no small praise. If the reclaiming of enormous wildernesses, the providing of an outlet for the surplus population of Europe—the production, in a word, of boundless wealth in every conceivable form—is a good thing, then the Constitution was a wise measure, for there can be no sort of doubt that the adoption of it contributed in the most direct and powerful manner to all these results.

It certainly did, to a great extent, form the whole country into one nation, and to a great extent contributed to its prosperity. The great thing which it did was to set up a King Stork, having direct power over individuals, for the old King Log who could do nothing but make requisitions upon States.

Whether the elaborate machinery of the Constitution was as beneficial as the leading principle of the measure itself, is quite another question. Some parts of it undoubtedly have altogether broken down. For instance, the election of the President by electors chosen by the people at large was supposed to be a security for the appointment of men of high character and ability. The security turned out to be worthless, inasmuch as for many years past, the electors have always been so completely pledged before their election that they might as well be dispensed with altogether.

It was hardly just to regard the civil war as proof of the failure of the Constitution. It could hardly have been foreseen. The Constitution no doubt did leave unsolved the great question as to the right of secession. The question whether or not, under the Constitution, construed as a legal document, the States had a right to secede, is about as ingenious a puzzle as any other question as to the meaning of a studiously ambiguous document. There are some things in it which look as if the States had such a right, and others which look as if they had not. The Federalist does not discuss the question at all. It once alludes to it in connection with the old Confederacy, the infirmities of which it ascribes in great measure to the want of any ratification by the people.

The old Confederacy was ratified only by the State Legislatures, and this, says Hamilton, 'has in some instances given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has respectable advocates,' etc.'

This is the only reference contained in the Federalist to the great question which has since convulsed the whole Union. It must, in all probability, have occurred to the authors of the Constitution. Probably they did not deal with it because they felt, that to give or withhold the right in question would be inconsistent with the whole character of their plan. To withhold it expressly would have been equivalent to destroying all chance of the ratification of the Constitution by the States. To give it expressly would have been to put the Union at the mercy of every one of thirteen bodies, all liable to caprice. They therefore took their chance, and left the question outstanding, in the hope that it might never be necessary to solve it. The result ought not to be charged upon them too heavily. If there had been no Constitution there would, it is true, have been no civil war; but it is very doubtful whether Europe would ever have been relieved of the pressure of a starving population, and whether America would have been cultivated as it has been, for a century to come. Who can strike the balance of such an account?

Saturday Review, March 26, 1864.

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