United States and the Americas History
The June 28 and July 15, 1786
Treaty
Of Peace and Friendship
The First West African Slave Trade
Agreement Uniting The Old Kingdom of Morocco and The New United States in America:
Among the many ways and means of extending diplomacy between sovereign powers, it is the contract of a Treaty between nations which ranks supreme among Constitutional Laws. There are many forms of treaties and each are tailored to respect a system of honor between governments. The “Barbary Coast” was a region of northern Africa on the Mediterranean coast between Egypt and Gibraltar. The Muslims of Morocco, Algiers, Tunis and Tripoli ruled, pirated and controlled well the watery Straits of Gibraltar from the 14th to 19th centuries. The taking of hostages and other human cargo for ransom on these water ways became a custom. The signing of Treaty Agreements between the Kingdom of Morocco and the sea-lined nations of Europe, to secure the sailing of ships, was a common practice in those days. This Treaty of Peace and Friendship, also known as the Barbary Treaties, with
additional article
; also
Ship-Signals Agreement
, was originally established as an International Agreement of Trade and Commerce. The treaty was sealed at Morocco with the seal of the Sultan Muhammed of Morocco June 23, 1786 (25 Shaban, A. H. 1200), and delivered to Thomas Barclay, American Agent, June 28, 1786 (1 Ramadan, A. H. 1200). Original in Arabic. The additional article was signed and sealed at Morocco on behalf of Morocco July 15, 1786 (18 Ramadan, A. H. 1200). Original in Arabic. The Ship-Signals Agreement was signed at Morocco July 6, 1786 (9 Ramadan, A. H. 1200) and later (July 18, 1787) was ratified by the USA into “Forever and a Day.”
This 1786 Treaty is now being transliterated to the Moorish Peoples of the Americas because far too many of them have been deceived, hoodwinked and (in most cases when many are still suffering from the insufficiency of knowledge) just-out-right lied to. For example: some are taught “We (The denationalized Negroes, Blacks and Colored People and other nationless Moorish descendants) have a Treaty with the USA.” Oh really?? The Holy Prophet, Noble Drew Ali taught “From 1779 to 1865 that ‘We’, were those SLAVES lawfully made by European Slaveholders, officially through this said Treaty as contracted in 1786, during the time of slavery.” Moorish Americans please be advised of the following: Slaves do not write treaties. Slaves do not have their own national flag. Slaves do not have their own governments. Also, Slaves did not write the Constitution of the USA which claims slaves as 3/5 of all other persons. Now, this Treaty of Peace and Friendship, between The Sultan of the Moroccan Government and George Washington, himself a Slaveholding Western Freemason and President of the new USA; This Treaty Agreement, of Trade and Commerce, was not FOR us but ABOUT us. The most popular merchandise notably worthy of an international Trade and Commerce Agreement between these two governments: The West African Nationals Stolen In Order To Supply Their Christian/Islamic Slave Trade. Now let us study this document with our free open eyes.
Certified English translations of the treaty and of the
additional article
were incorporated in a document signed and sealed by the Ministers Plenipotentiary of the United States, Thomas Jefferson at Paris January 1, 1787, and John Adams at London January 25, 1787. Treaty and
additional article
ratified by the United States July 18, 1787. As to the ratification generally, see the notes. Treaty and additional article proclaimed July 18, 1787.
Ship-Signals Agreement
not specifically included in the ratification and not proclaimed; but copies ordered by Congress July 23, 1787, to be sent to the Executives of the States (Secret Journals of Congress, IV, 869; but see the notes as to this reference. Certified Translation of the Treaty and of the
Additional Article
, with Approval by Jefferson and Adams).
To all Persons to whom these Presents shall come or be made known- Whereas the United States of America in Congress assembled by their Commission bearing date the twelfth day of May One thousand Seven hundred and Eighty four thought proper to constitute John Adams, Benjamin Franklin and Thomas Jefferson their Ministers Plenipotentiary (Note: All of these Pale Skinned European Males are Western Freemasons aka Slave Holders), giving to them or a Majority of them full Powers to confer, treat & negotiate with the Ambassador, Minister or Commissioner of His Majesty the Sultan of Morocco concerning a Treaty of Amity and Commerce (Peace and Trade [meaning Business, marketing, export-import, exchange, retail, wholesale harmoniously] INTERNATIONALLY), to make & receive propositions for such Treaty and to conclude and sign the same, transmitting it to the United States in Congress assembled for their final Ratification, And by one other (commission bearing date the Eleventh day of March One thousand Seven hundred & Eighty five (March 11, 1785) did further empower the said Ministers Plenipotentiary or a majority of them, by writing under the* hands and Seals to appoint such Agent in the said Business as they might think proper with Authority under the directions and Instructions of the said Ministers to commence & prosecute the said Negotiations & Conferences for the said Treaty provided that the said Treaty should be signed by the said Ministers: And Whereas, We the said John Adams & Thomas Jefferson two of the said Ministers Plenipotentiary (the said Benjamin Franklin being absent) by writing under the Hand and Seal of the said John Adams at London October the fifth, One thousand Seven hundred and Eighty five, & of the said Thomas Jefferson at Paris October the Eleventh of the same Year, did appoint Thomas Barclay, Agent in the Business aforesaid, giving him the Powers therein, which by the said second Commission we were authorized to give, and the said Thomas Barclay in pursuance thereof, hath arranged Articles for a Treaty of Amity and Commerce between the United States of America and His Majesty the Emperor of Morocco, which Articles written in the Arabic Language, confirmed by His said Majesty the Emperor of Morocco & sealed with His Royal Seal, being translated into the Language of the said United States of America, together with the Attestations thereto annexed are in the following Words, To Wit.
In the name of Almighty God, (The Constitution of Theocracy commands all praises first only to the Great God, then honors to Prophets and Holy Books and allegiances to man).
This is a Treaty of Peace and Friendship (An International Contractual Agreement founded upon diplomatic harmonies, mutual relationship and alliance) established between
us and the United States of America, which is confirmed, and which we have ordered to be written in this Book and sealed with our Royal Seal (The Grand National e.g. “Royal Seal” of Morocco contained the Five-Pointed Open Star of the Amexem God-In-Man) at our Court of Morocco (Theocratic Government) on the twenty fifth day of the blessed Month of Shaban, in the Year One thousand two hundred, trusting in God it will remain permanent. (Later this Treaty of Commercializing the Human enslavement of West African Nationals was perpetually extended to ‘Forever and a Day’).
.1. We declare that both Parties have agreed that this Treaty consisting of twenty five Articles shall be inserted in this Book and delivered to the Honorable Thomas Barclay, the Agent of the United States now at our Court (Moroccan Government), with whose Approbation it has been made and who is duly authorized on their Part, to treat with us concerning all the Matters contained therein.
.2. If either of the Parties shall be at War with any Nation whatever, the other Party shall not take a Commission from the Enemy nor fight under their Colors.
.3. If either of the Parties shall be at War with any Nation whatever and take a Prize belonging to that Nation, and there shall be found on board Subjects or Effects belonging to either of the Parties, the Subjects shall be set at Liberty and the Effects returned to the Owners. And if any Goods belonging to any Nation, with whom either of the Parties shall be at War, shall be loaded on Vessels belonging to the other Party, they shall pass free and unmolested without any attempt being made to take or detain them.
.4. A Signal or Pass shall be given to all Vessels belonging to both Parties, by which they are to be known when they meet at Sea, and if the Commander of a Ship of War of either Party shall have other Ships under his Convoy, the Declaration of the Commander shall alone be sufficient to exempt any of them from examination.
.5. If either of the Parties shall be at War, and shall meet a Vessel at Sea, belonging to the other, it is agreed that if an examination is to be made, it shall be done by sending a Boat with two or three Men (not Property) only, and if any Gun shall be Bred and injury done without Reason, the offending Party shall make good all damages.
.6. If any Moor shall bring Citizens (not Property, effects, provisions, supplies e.g. SLAVES) of the United States or their Effects to His Majesty, the Citizens shall immediately be set at Liberty and the Effects restored, and in like Manner, if any Moor not a Subject of these Dominions shall make Prize of any of the Citizens of America or their Effects and bring them into any of the Ports of His Majesty, they shall be immediately released, as they will then be considered as under His Majesty’s Protection.
.7. If any Vessel of either Party shall put into a Port of the other and have occasion for Provisions or other Supplies, they shall be furnished without any interruption or molestation.
.8. If any Vessel of the United States shall meet with a Disaster at Sea and put into one of our Ports to repair, she shall be at Liberty to land and reload her cargo (Slaves etc.), without paying any Duty whatever.
.9. If any Vessel of the United States shall be cast on Shore on any Part of our Coasts, she shall remain at the disposition of the Owners and no one shall attempt going near her without their Approbation, as she is then considered particularly under our Protection; and if any Vessel of the United States shall be forced to put into our Ports, by Stress of weather or otherwise, she shall not be compelled to land her Cargo, but shall remain in tranquility until the Commander shall think proper to proceed on his Voyage.
.10. (PEACE) If any Vessel of either of the Parties shall have an engagement with a Vessel belonging to any of the Christian Powers within gunshot of the Forts of the other, the Vessel so engaged shall be defended and protected as much as possible until she is in safety; And if any American Vessel shall be cast on shore on the Coast of Wadnoon
(1)
or any coast thereabout, the People belonging to her shall be protected, and assisted until by the help of God, they shall be sent to their Country.
.11. (PEACE) If we shall be at War with any Christian Power and any of our Vessels sail from the Ports of the United States, no Vessel belonging to the enemy shall follow until twenty four hours after the Departure of our Vessels; and the same Regulation shall be observed towards the American Vessels sailing from our Ports.-be their enemies Moors or Christians.
.12. (PEACE) If any Ship of War belonging to the United States shall put into any of our Ports, she shall not be examined on any Pretence whatever, even though she should have fugitive (Slaves) on Board, nor shall the Governor or Commander of the Place compel them to be brought on Shore on any pretext, nor require any payment for them.
.13. (PEACE) If a Ship of War of either Party shall put into a Port of the other and salute, it shall be returned from the Fort, with an equal Number of Guns, not with more or less.
.14. (Business) The Commerce (of African Slaves) with the United States shall be on the same footing as is the Commerce (of African Slaves) with Spain or as that with the most favored Nation for the time being and their Citizens shall be respected and esteemed and have full Liberty to pass and repass our Country and Sea Ports whenever they please without interruption.
.15. (Business) Merchants of both Countries shall employ only such interpreters, & such other Persons to assist them in their Business, as they shall think proper. No Commander of a Vessel shall transport his Cargo (of African Slaves) on board another Vessel, he shall not be detained in Port, longer than he may think proper, and all persons employed in loading or unloading Goods (of African Slaves) or in any other Labor whatever, shall be paid at the Customary rates, not more and not less.
.16. (Friendship / Recognized The difference between Citizens and Slaves) In case of a War between the Parties (USA & Moroccan Governments), the Prisoners (Recognized Citizens of the 2 Ruling Parties) are not to be made Slaves, but to be exchanged one for another, Captain
for Captain, Officer for Officer and one private Man for another; and if there shall prove a deficiency on either side, it shall be made up by the payment of one hundred Mexican Dollars for each Person wanting; And it is agreed that all Prisoners shall be exchanged in twelve Months from the Time of their being taken, and that this exchange may be effected by a Merchant or any other Person authorized by either of the Parties.
.17. Merchants (USA & Moroccan Governments) shall not be compelled to buy or Sell any kind of Goods but such as they shall think proper; and may buy and sell all sorts of (African Slaves) Merchandise but such as are prohibited to the other Christian Nations.
.18. All goods (African Slaves) shall be weighed and examined before they are sent on board, and to avoid all detention of Vessels, no examination shall afterwards be made, unless it shall first be proved, that contraband Goods have been sent on board, in which Case the Persons who took the contraband Goods on board shall be punished according to the Usage and Custom of the Country and no other Person whatever shall be injured, nor shall the Ship or Cargo incur any Penalty or damage whatever.
.19. No vessel shall be detained in Port on any presence whatever, nor be obliged to take on board any Article (of African Slaves) without the consent of the Commander, who shall be at full Liberty to agree for the Freight of any Goods he takes on board.
.20. (PEACE) If any of the Citizens of the United States, or any Persons under their Protection, shall have any disputes with each other, the Consul (Diplomat Lawyer, Government Rep.) shall decide between the Parties and whenever the Consul shall require any Aid or Assistance from our Government to enforce his decisions it shall be immediately granted to him.
.21. (PEACE) If a Citizen of the United States should kill or wound a Moor (Duly Recognized Citizen), or on the contrary if a Moor shall kill or wound a Citizen of the United States, the Law of the Country shall take place and equal Justice shall be rendered, the Consul assisting at the Trial and if any Delinquent shall make his escape, the Consul (Diplomat Lawyer, Government Rep.) shall not be answerable for him in any manner whatever.
.22. (PEACE) If an American Citizen shall die in our Country and no Will shall appear, the Consul shall take possession of his Effects, and if there shall be no Consul, the Effects shall be deposited in the hands of some Person worthy of Trust, until the Party shall appear who has a Right to demand them, but if the Heir to the Person deceased be present, the Property shall be delivered to him without interruption; and if a Will shall appear, the Property shall descend agreeable to that Will, as soon as the Consul shall declare the Validity thereof.
.23. The Consuls of the United States of America shall reside in any Sea Port of our Dominions that they shall think proper; And they shall be respected and enjoy all the Privileges which the Consuls of any other Nation enjoy, and if any of the Citizens of the United States shall contract any Debts or engagements, the Consul shall not be in any Manner accountable for them, unless he shall have given a Promise in writing for the payment or fulfilling thereof, without which promise in Writing no Application to him for any redress shall be made.
.24. If any differences shall arise by either Party infringing on any of the Articles of this Treaty, Peace and Harmony shall remain notwithstanding in the fullest force, until a friendly Application shall be made for an Arrangement, and until that Application shall be rejected, no appeal shall be made to Arms. And if a War shall break out between the Parties, Nine Months shall be granted to all the Subjects of both Parties, to dispose of their Effects and retire with their Property. And it is further declared that whatever indulgences in Trade or otherwise shall be granted to any of the Christian Powers, the Citizens of the United States shall be equally entitled to them.
.25. This Treaty shall continue in full Force, with the help of God for Fifty Years and then, to forever and a day.
We have delivered this Book into the Hands of the before-mentioned Thomas Barclay on the first day of the blessed Month of Ramadan, in the Year One thousand two hundred. I certify that the annexed is a true Copy of the Translation made by Issac Cardoza Nunez, Interpreter at Morocco, of the treaty between the Sultan of Morocco and Government of the United States of America. “THOS BARCLAY”
———————————————————————————
Remember, all Citizens of The Moorish Americas:
The enslavement of any nation has always been a Divine Issue, a Karmic Punishment and Course of Justice from The Great God for their adopting sinful ways. Because of this Treaty, The United States extended slavery for another 150 years after her 1865 Abolishment and In 1871 It would lose all Sovereign power and was reduced again to Corporate Status under the United Kingdom. As for Morocco’s divine punishment for Spearheading the 1492 West African Slave Trade and authorizing the enclosed 1787 Treaty with the new United States, by 1912 had lost all sovereignty as a Ruling Government, to France and The UK and for the next 44 years (until 1956) could no longer hoist her “Fallowed Flag” on land nor sea. Hence, from the UK and French Colonies to Corporate UNITED STATES in the America, The USA has never been without her staple of African Slaves and nationless Moors. Slaves has forever been those persons rejected and made into powerless property. This is why Slaves do not write treaties. Slaves do not have their own national flag. Slaves do not have their own governments. Also, Slaves did not write the Constitution of the USA; which claims ownership of all African slaves as 3/5 of all other persons.
Submitted with Love Divine;
Professor Akhnaton Pert M Hru Tutankhamun Bey, Swift AngEl #1
Divine Minister, Grand National Chairman of Moorish America
By David Treuer , David Treuer’s most recent book is “Prudence,” a novel.
Jacksonland President Andrew Jackson, Cherokee Chief John Ross, and the Great American Land Grab By Steve Inskeep
Surely everyone knows, or should know, about the Cherokee Trail of Tears — an ordeal imposed upon thousands of Cherokees who, after fighting and winning a judgment in the Supreme Court against their removal from the Eastern Seaboard, were nonetheless dispossessed of their tribal lands and marched to Indian Territory in the early 1830s. The scale of the removal was staggering. Not only the Cherokee but also the Muskogee, Seminole, Chickasaw, Choctaw, Creek and many of their African American slaves were removed in one of the largest and most brutal acts of aggression ever committed by the United States. But not till now, with the coming of NPR journalist Steve Inskeep’s magnificent book, focusing as it does on the two key players — President Andrew Jackson and Cherokee Principal Chief John Ross — has this episode in American history been rendered in such personal detail and with such a human touch.
Inskeep begins his tale of dispossession in earnest at the Battle of Horseshoe Bend in 1814. By that time Jackson was already famous for his modest origins and his politics. It was at Horseshoe Bend, in what is now Alabama, that what could be called the “war of settlement” truly began, when the U.S. military and its Indian allies attacked and demolished the Creek “Red Stick” separatists. And it was at Horseshoe Bend that John Ross — a young Cherokee statesman and fighter — fought for and became acquainted with Jackson. The two men’s destinies became linked during the battle, and they remained linked through their long struggle for control of the American Southeast. What Inskeep shows us — through letters, first-rate historical research and able prose — is how the Cherokee (dispossessors and colonists of other neighboring tribes such as the Creek, Catawba and Tuscarora) fought for the United States and then, after their destinies were intertwined, ended up fighting against the government, in court and through lobbyists and by any other means except outright warfare. What emerges from the story of the two men is a bigger portrait of power and conflict in early America, which wasn’t simply a matter of white transgression and Indian resistance. Rather, Indians and whites were sometimes allies, sometimes not, sometimes united in cause, sometimes not. And the map of power wasn’t simply federal-vs.-tribal. There was a complex web of relationships among Indian tribes, the federal government and states (like Georgia) that wanted to dictate state sovereignty on their own terms.
More than that, Inskeep — by focusing tightly on the public and private movements of the two antagonists and keeping his story confined to the events leading up to the removal rather than on the hardships of the removal itself — shows us that the Indian Wars in the latter part of the 19th century (what could be called the War of the West) really began in the East; the Cherokee removal marked the end of a policy of diplomacy and negotiation between the tribes and the United States and ushered in a vast and bloody period that touched tribes from the Plains to California. We can also see that the Civil War in some ways began in the 1830s over issues of sovereignty and control, and that at the bottom of all of it was a deep, almost insatiable quest for land.
Perhaps no American president was more rapacious than Jackson. After the War of 1812, as a colonel in the Army responsible for fighting Indians in the Southeastern United States, he used his military conquests to buy huge tracts of land in Alabama and Tennessee for himself and his business partners. After “liberating” millions of acres of Indian land and bringing it into settlement, he used his government status to position himself and his friends as first in line at land auctions, to hire his friends as surveyors, and to make side deals with tribal leaders (complete with doceurs — sweeteners, or bribes — to have some of the best parcels set aside for himself).
Inskeep explains this kind of unseemly, if not illegal, dealing diplomatically: “In his abiding interest in land, Andrew Jackson was a reflection of his country as well as his time. The settlement of land quite literally underlay the entire project of building the United States. But Jackson’s acute sensitivity to rumors about his real estate business revealed another layer to the story. While the speculator was not necessarily immoral or corrupt . . . speculation was a morally fraught enterprise.” But perhaps Inskeep is a little too diplomatic. While Jackson was, of course, a man of his time and culture, not all men were like Jackson. There were many others, inside and outside government, who deplored his greed and violence. Even by the measure of his time, he was a self-serving, greedy and immoral speculator who casually disposed of his Indian allies and friends in order to increase his own market share.
As for Ross, his story is painful to read. We meet him in full flower: young, bilingual, articulate, literate. He has done everything asked of him by the U.S. government, and he expects the United States, and Jackson, to honor the sacrifices of his people. By degrees, his faith is undone. Yet still — by visiting Washington, lobbying lawmakers, funding the first Cherokee newspaper out of his own pocket — he fights for his people with words, and he loses by force. After taking his fight to the courts and winning a victory against removal in the Supreme Court, he is rebuffed by then-President Jackson, who allegedly says: “That’s their decision. Now let’s see them try to enforce it.” After that, the removal is unavoidable. So, too, is a major shift in federal Indian policy. Until that point the U.S. government had dealt with tribes through — and often with — diplomacy. After that, the United States and tribes across the country slide inevitably toward open conflict that doesn’t end until the close of the century.
The story of the Cherokee removal has been told many times, but never before has a single book given us such a sense of how it happened and what it meant, not only for Indians, but also for the future and soul of America.
Correction: An earlier version of this review incorrectly said that Gen. Andrew Jackson was known for having won the Battle of New Orleans when he fought the Battle of Horseshoe Bend. The Battle of Horseshoe Bend, in March 1814, preceded the December 1814-January 1815 Battle of New Orleans. This version has been corrected.
By Caroline L. Orlando
Boston College Environmental Affairs Law Review
Volume 13 | Issue 2 Article 4
12-1-1986
Aboriginal Title Claims in the Indian Claims Commission: United States v. Dann and Its Due Process
Implications
Caroline L. Orlando
Follow this and additional works at: http://lawdigitalcommons.bc.edu/ealr
Part of the IndianandAboriginalLawCommons
Recommended Citation
Caroline L. Orlando, Aboriginal Title Claims in the Indian Claims Commission: United States v. Dann and Its Due Process Implications, 13 B.C. Envtl. Aff. L. Rev. 241 (1986), http://lawdigitalcommons.bc.edu/ealr/vol13/iss2/4
This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact nick.szydlowski@bc.edu.
ABORIGINAL TITLE CLAIMS IN THE INDIAN CLAIMS COMMISSION: UNITED STATES V. DANN AND ITS DUE PROCESS IMPLICATIONS
Caroline L. Orlando*
I. INTRODUCTION
Six hundred years ago the Indians of North America were the sole possessors of the United States’ current land mass. 1 Today, they possess less than two percent of that land.2 The United States gov ernment acquired much of the land from the Indians by treaties, which the government did not always keep; by purchases, for which the government did not always pay; or by force.3 Federal policy toward this displacement fluctuated until 1946, when Congress en acted the Indian Claims Commission Act of 19464 (the Act), and thereby created the Indian Claims Commission (the ICC) to right all wrongs, legal and moral, which the United States government had committed against the Indians. 5
Most claims brought before the ICC, which was authorized to award money judgments to tribal descendants whose land had been confiscated, 6 were based in the doctrine of aboriginal, or Indian, title. Aboriginal title describes the possessory rights of American
Indians to lands they have occupied since time immemorial. 7 Occu-
*Citations and Articles Editor, 1985-1986, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW.
1 Barsh, Indian Land Claims Policy in the United States, 58 N.D.L. REV. 7, 8 (1982).
2 !d.
3 See generally F.P. PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT
AND THE AMERICAN INDIANS (1984), for a comprehensive history of the relations between the United States government and the Indians.
4 Indian Claims Commission Act of 1946, §§ 1-28, ch. 959, 60 Stat. 1049 (codified at 25
U.S.C. §§ 70 to 70v-3 (1976) (repealed 1978)).
5 Barsh, supra note 1, at 11.
6 See Indian Claims Commission Act of 1946, 25 U.S.C. §§ 70-70v-3 (1976) (repealed 1978).
7 Inupiat Community of Arctic Slope v. United States, 680 F.2d 122, 128 (Ct. Cl. 1982),
cert. denied, 459 U.S. 969 (1982).
241
242 ENVIRONMENTAL AFFAIRS [Vol. 13:241
pancy under the doctrine is determined with reference to Indian habits and modes of life; thus aboriginal title vests in the tribal group in its entirety.8 Many tribes or bands, however, are now divided or defunct, so tribal descendants who brought claims before the ICC may not have had a formal tribal structure in which to resolve conflicts among themselves. 9 Instead, disagreements about whether tribal descendants still hold aboriginal title to a particular parcel of land often arose only after proceedings before the ICC were begun.
The ICC was dissolved in 1978,10 but its actions are the focus of continuing controversy regarding aboriginal title. The ICC often granted compensation for lands to which some tribal descendants might still have had valid aboriginal title. 11 This occurred because many tribal descendants filed claims for lands to which the United States had never formally obtained title. 12 In such claims, the attor neys for the tribal descendants, and for the government, stipulated to dates of extinguishment, in order to determine a money value for the land.13 The ICC then awarded compensation, even though ab original title was never actually extinguished. 14
The Act provides that determination of a claim by the ICC, and
payment of the judgment, forever discharges the United States government, and bars any other claims on the matter at issue. 15 ICC judgments therefore may have the unexpected effect of extinguish ing aboriginal title. 16 Indians who contended that their title had been extinguished would file claims before the ICC; those who disputed that contention, usually because they still occupied the supposedly confiscated lands, had no reason to file a claim but were later barred from intervening in the claimants’ actions before the ICC. 17 The
8 Mitchel v. United States, 34 U.S. (9 Pet.) 711, 745 (1835). See infra notes 25-83 and accompanying text.
9 Note, however, that a “majority of Indians in this country continue to be tribal members, regardless of where they live and regardless of whether or not their tribe is recognized by the Federal government ….”American Indian Policy Review Comm., FINAL REPORT, vol. I, at 434 (Comm. Print 1977).
10 UNITED STATES INDIAN CLAIMS COMMISSION, FINAL REPORT (1978) [hereinafter cited as FINAL REPORT].
11 See, e.g., Temoak Band of W. Shoshone Indians v. United States, 593 F.2d 994, ceri. denied, 444 U.S. 973 (1979).
12 See, e.g., Shoshone Tribe v. United States, lll.C.C. 87 (1962).
13 See, e.g., Temoak Band, 593 F.2d at 996.
14 !d.
15 25 U.S.C. § 70u (1976).
16 Claimants seeking compensation for aboriginal title land before the ICC did not have to assert extinguishment. Alternative claims could have been asserted – for example, for restricted use and enjoyment of aboriginal lands.
17 See infra notes 174-215 and accompanying text.
1986] INDIAN CLAIMS COMMISSION 243 tribal foundation of aboriginal title resulted in the ICC’s inability to accommodate individual Indians with differing contentions respect ing aboriginal lands. Thus, it was often claimed that decisions by the ICC violated the procedural due process rights of Indians who con tended, in conflict with their fellow Indians, that the federal govern ment had not extinguished their aboriginal title.
In United States v. Dann,19 the United States Supreme Court recently addressed the issue which may determine the ultimate ef fectiveness of many of the ICC’s judgments. The Dann case is the most recent of a series of actions brought by Indians who claim that their aboriginal title was not lawfully extinguished, and that they were not represented before the ICC.20 In practical terms, the Court determined in Dann that a judgment by the ICC can extinguish aboriginal title,21 although in Dann22 the Court did not address the constitutional issue of whether failed intervenors before the ICC had a protectable right of due process.
This article addresses the issues associated with the ICC’s at tempts to resolve aboriginal title claims, and concludes that the ICC’s consideration of aboriginal title claims often violated the right to due process of would-be intervenors. The first section introduces the doctrine of aboriginal title, which, since its inception in the American common law, established overlapping and sometimes con tradictory property rights in native Americans and the United States government. The second section discusses the legislative history behind the Indian Claims Commission Act, the claims brought before the ICC, and the positions of the parties bringing those claims. The third section examines the procedural history and outcome of the Dann case, in order to illustrate the inadequacies of the doctrine of aboriginal title. In conclusion, the article considers alternative ave nues of relief for Indian groups whose aboriginal title was declared extinguished by the ICC. As one commentator noted, “[t]he time has passed when it would have been possible to create a Commission
18 See, e.g., Brief for Respondents at 29-33, United States v. Dann, 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985) [hereinafter cited as Brief for Danns].
19 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985).
20 See, e.g.,•Six Nations Confederacy v. Andrus, 610 F.2d 996 (D.C. Cir. 1979), cert. denied,
447 u.s. 922 (1980).
21 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985); see also United States v. Dann, 706 F.2d 919,
923 (1983) [hereinafter cited as Dann II]. Legally, the issue is whether members of a tribal descendant group may assert unextinguished aboriginal title as a defense in collateral litigation when the ICC has granted a judgment for extinguishment of that title to claimants repre senting the descendant group. See infra notes 216-90 and accompanying text.
22 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985); see infra notes 291-322 and accompanying text.
244 ENVIRONMENTAL AFFAIRS [Vol. 13:241
most appropriate to its purpose,”23 but it is not too late to seek to rectify further injustices by the ICC.
II. THE DOCTRINE OF ABORIGINAL TITLE
The legal doctrine of aboriginal title has developed in every Anglo European culture that conquered lands inhabited by people viewed as primitive and culturally disadvantaged. 24 The legal centerpiece of the doctrine is that the conquered people maintain merely the right to occupy their own land once the conquering nations have “discov ered” it. This notion developed from the conquerors’ prevailing belief in Anglo-European superiority and manifest destiny. Another of the doctrine’s principles is that aboriginal title vests in the entire tribe so that the individual has no rights outside of the tribal group. This notion originated in the collective character of many conquered peo ples’ culture. This section will discuss the common law development of aboriginal title doctrine, to conclude that aboriginal title is an outmoded theory which has no rational basis in present-day Indian land claims.
A. Common Law of Aboriginal Title
The doctrine of aboriginal title was first enunciated in 1823, in the Supreme Court’s landmark decision, Johnson v. M’Intosh.25 In this case, the plaintiff sued to eject the defendant from land in Illinois which plaintiff had purchased from the Piakeshaw Indians.26 The federal government, however, had granted the same land to the defendant’s predecessor-in-interest. 27 The issue before the Court was whether plaintiff’s title, derived by a purchase from the Indians, was legally enforceable. 28
The Court in Johnson 29 held that a private land sale, by an Indian to a nongovernmental party, to which the government had not con sented, gave the purchaser no valid title against the government’s
claim. The federal government alone had the right to extinguish
23 Note, Repaying Historical Debts: The Indian Claims Commission, 49 N.D.L. REV. 359, 380 (1975).
24 Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. PA.
L. REv. 195, 209 (1984) [hereinafter cited as Federal Power].
25 21 U.S. (8 Wheat.) 543 (1823).
26 Id.
27 Id.
28 I d. at 572.
29 I d. at 604-05.
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Indian title; Indians had no independent power to sell or to convey their lands without the government’s approval. 30 Writing for the majority, Chief Justice Marshall set forth the doctrine of discovery, and reasoned that sovereign nations obtained “ultimate title” by discovering land inhabited by non-Europeans. 31 This sovereign title gave the United States government, as the discovering nations’ successor, an exclusive right to extinguish Indian title by purchase or conquest. In contrast, the Indians retained a legal claim merely to possess the land.32 Based on these principles, Marshall concluded that until the United States exercised its right to confiscate, both the Indians and the government held simultaneous rights in the territory. After extinguishing aboriginal title, however, the govern ment obtained “absolute title,” unencumbered by any Indian prop erty rights. 33
To the extent that it effectively split the title to land possessed by the Indians into two distinct bundles of rights, the Johnson decision provided a sensible compromise. 34 However, this compro mise has uncertain implications. In theory, the “doctrine of discov ery” leaves title vested in the Indians, and merely grants to the government a preemptive right to purchase or take by conquest. 35 Practically, however, the J ohnson36 opinion denies recognition of Indian title by denying Indians the right to transfer their title through sale or conveyance without governmental participation. Or dinarily, such a disabling restraint on alienation of real property ownership would be unconstitutional. 37 Despite the resulting re straint on alienation, subsequent decisions involving aboriginal title38 follow Johnson’s practical result, and characterize the government’s interest as full title ownership, 39 and the Indians’ interest as mere possession. 40
30 I d. at 585.
31 I d. at 591.
32 I d. at 603.
33 I d. at 592.
34 See Federal Power, supra note 24, at 208 n.69.
35 The federal government’s preemptive right means that Indians have a perpetual right to use and occupy aboriginal title lands “virtually equivalent to a fee interest against all but the United States.” F. COHEN, FEDERAL HANDBOOK OF INDIAN LAW 489 (1982 ed.).
36 21 U.S. (8 Wheat.) 543 (1823); see supra notes 25–33 and accompanying text.
37 See, e.g., Blackstone Bank v. Davis, 38 Mass. 42 (1838).
38 Sac and Fox Tribe v. United States, 383 F.2d 991 (Ct. Cl. 1967); Oneida Indian Nation
v. County of Oneida, 414 U.S. 661 (1974); United States v. Alcea Band of Tillamooks, 329
u.s. 40 (1946).
39 See, e.g., Oneida Indian Nation, 414 U.S. at 667 (“[A]lthough fee title to the lands occupied
by Indians when the colonists arrived became vested in the sovereign -first the discovering
246 ENVIRONMENTAL AFFAIRS [Vol. 13:241
The federal government may extinguish Indian title rights only by a clear and specific act of CongressY In United States ex rel. Hualpai Indians v. Santa Fe Pacific Railroad,42 the Court concluded that a series of congressional and executive actions that treated Indian lands as public lands43 did not divest Indians of their aborig inal title since none of the actions evinced a “clear and plain indica tion” that Congress intended to extinguish the Hualpai’s title.44 The Court indicated, however, that once Congress has evinced a positive intent to do so, Congress is free to determine the manner, method, and time of such extinguishment without judicial interference. 45 The Court in Santa Fe listed the ways by which Congress could extin guish aboriginal title: “by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise ….”46 Absent such an action indicating clear congres sional intent to extinguish, however, the Court concluded that the government’s duty toward “its Indian wards” precludes implied ex tinguishment. 47
Although Congress may extinguish aboriginal title by evincing a
specific intent to do so, there is no right to compensation under the taking clause of the fifth amendment unless Congress has recognized the title.48 The takings clause of the fifth amendment provides, “nor shall any private property be taken for public use, without just compensation.”49 However, in Tee-Hit-Ton Indians v. United States,50 the Court held that mere aboriginal title, which Congress has not recognized, is not “property” within the meaning of the fifth
European nation and later the original States and the United States- a right of occupancy in the Indian tribes was nevertheless recognized.”)
40 See, e.g., Mitchel v. United States, 34 U.S. (9 Pet.) 711, 745 (1835).
41 F. COHEN, supra note 35, at 490.
42 314 u.s. 339 (1941).
43 Congress had granted Indian lands to “certain qualified citizens,” one of which was the
railroad’s predecessor-in-interest. Id. at 348. See F. COHEN, supra note 35, at 210 (“Indian property … is more properly classified as private property, subject to broad congressional control and special fiduciary obligations, rather than as public lands or other federal territory or property.”).
44 314 U.S. at 353.
45 I d. at 347.
46 ld.
47 I d. at 353-54 (“Extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.”).
48 Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 288-91 (1955). For a well-reasoned argument for overruling Tee-Hit-Ton, see Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 HASTINGS L.J. 1215 (1980) [hereinafter cited as Whim].
49 U.S. CONST. amend V.
50 348 u.s. 272 (1955).
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amendment. Therefore, the Court concluded, such property may be taken by the government without compensation. 51
In Tee-Hit-Ton,52 a band of Tlingit Indians sought compensation
under the fifth amendment for the government’s confiscation of lum
ber from aboriginal title lands in Alaska. The Court rejected the claim on the grounds that Congress had not recognized, by treaty or other unambiguous legislation, the tribe’s right to live perma nently on the land.53 Aboriginal title was determined to grant per mission from the government to possess the land, but not to own it.54 Congress may choose to recognize Indians’ permanent right to occupy a territory, but until the Indians obtain such recognized title, the government does not violate the fifth amendment when it takes their lands without paying compensation. 55
As it developed in these and other Supreme Court cases,56 the
doctrine of aboriginal title asserts, and simultaneously denies, In dians’ title rights to lands that they have continuously occupied. Although courts have held that aboriginal title is as sacred as the fee simple,57 it is not a constitutionally protected property right. 58 Even though Indians have an absolute present right to possess aboriginal land, the federal government may legitimately extinguish that right by force as well as by purchase. 59 In sum, aboriginal title grants Indians less than its name suggests. The government effec tively holds fee simple title, while the Indians hold a revocable right of occupancy.
However characterized, aboriginal title vests in the tribe itself;60 it is not divisible into title rights for individuals who move away from tribal lands and forfeit tribal membership. 61 In Eastern Band
51 I d. at 284-85. To determine whether a taking has occurred in all other types of property, a federal court must determine “when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain dispropor tionately concentrated in a few persons.” Penn Central Transp. Co. v. New York, 438 U.S. 104, 124 (1978).
52 348 U.S. at 273.
53 348 U.S. at 288-89.
54 I d. at 279.
55 I d. at 285.
56 See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 581 (1832). See generally Cohen, Original Indian Title, 32 MINN. L. REV. 28 (1947); Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 BUFFALO L. REV. 637 (1978).
57 Santa Fe, 314 U.S. at 345 (citing Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746
(1835)).
58 Tee-Hit-Ton, 348 U.S. at 284-85.
59 M’Intosh v. Johnson, 21 U.S. (8 Wheat.) at 589.
60 F. COHEN, supra note 35, at 605.
61 Id. at 607.
248 ENVIRONMENTAL AFFAIRS [Vol. 13:241
of Cherokee Indians v. United States,62 the Court applied this prin ciple to deny the claim of a group of Cherokees who had abandoned their tribal membership, yet who sought a share of the proceeds from the sale of tribal lands.63 Since the tribe holds property for the common benefit of all tribal members, individual Indians were not permitted to possess a separable interest in such property. 64 Indi viduals have the right to use and share in tribal property. 65 That right, however, is conditioned upon tribal membership, governed by the applicable tribal laws, and revocable at the will of the tribe. 66 Thus, the Court in Eastern Band 67 held that the claimants forfeited their rights in tribal property by abandoning their tribal member ship.
This is not the rule for individual Indians who are unaffiliated with any tribe. They may possess a recognizable claim of Indian title to a homestead, or the parcel of land that they continuously occupied. 68 For example, in Cramer v. United States,69 three individual Indians claimed a right of occupancy in a parcel of land which the Central Pacific Rail Road Company had claimed under a federal land grant statute.70 The government brought suit on behalf of the Indians, 71 claiming that the Indians’ land was excluded from the grant to the railroad by a clause in the statute exempting land that had been “reserved . . . or otherwise disposed of.”72 The Court held that the grant to the railroad did not include title to the parcel held by the three Indians. 73 The Court reasoned that respect for tribal aboriginal title is extended to individual Indians’ occupancy claims because of the federal government’s “well understood policy … of inducing
62 117 u.s. 288 (1886).
63 !d. at 308.
64 !d. at 309.
65 I d. at 308.
66 !d. at 308-09.
67 !d. at 311.
68 F. COHEN, supra note 35.
69 261 u.s. 219 (1923).
70 !d. at 224-25. Most federal land grant statutes conveyed federal lands by means of patents
(the governmental equivalents of deeds), issued pursuant to general laws. III AM. LAW OF PROP. § 12.20, at 231-32 (1952). However, even a grant by the United States government is entirely ineffective as to land to which the government does not hold title. !d. at 235.
71 The Court determined, as a threshold matter, that the government had the right to sue
as guardian of its Indian wards in order to effectuate Congress’ policy of protecting Indian title which had not yet been explicitly extinguished. 261 U.S. at 232-33.
72 !d. at 227. The three individual Indians’ right of occupancy in Cramer is analogous to tribal aboriginal title, because it was not explicitly protected by any statute or treaty. See Aguilar v. United States, 474 F. Supp. 840, 844 (1979).
73 261 U.S. at 227.
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the Indian to foresake his wandering habits and adopt those of civilized life. “74
B. Modern Problems with Aboriginal Title
Because Indian tribal structure has changed so radically since aboriginal title first developed as a legal doctrine, the common law’s continued application complicates present-day Indian land claims. Since title vests in the tribe as a group, tribal descendants collec tively possess aboriginal title, regardless of whether the tribe still exists as a political, social, or economic entity.75 Many tribes are now defunct or so divided that no coherent tribal organization exists. Thus, the principle that aboriginal title vests in the tribe has no clear legal meaning. 76 In addition, vesting title in the tribe presents three specific complications. First, Indian bands who have lived on a parcel of land for generations, without tribal or governmental interference, may consider such lands their own, despite the legal technicality that they lack fee simple title.77 Second, without a formal tribal structure, such Indians have rio organization from which to derive their continuing legal rights to use or to occupy the land.78 Third, Indian bands or groups may disagree about which entity has aboriginal title rights to particular parcels of land. Without cohesive tribal organizations, no Indian forum exists where such disputes are resolved. 79 In short, individual Indians, unaffiliated with any tribe, may possess parcels of land, but they have no tribal organizations from which to derive aboriginal title, and no forum within which to resolve disputes.
74 !d. However, the Court’s reasoning in Cramer, that individual Indians have a legally enforceable right to occupancy in addition to tribal aboriginal title, has not been applied in subsequent decisions. See E. Band of Cherokee Indians v. United States, 117 U.S. 288 (1886); Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977).
75 See Eastern Band, 117 U.S. at 308-09.
76 See, e.g., Osceola v. Kuykendall, 4 INDIAN L. REP. (AM. INDIAN LAW. TRAINING PRO
GRAM) F-80 (Mar. 11, 1977). Of course, many Indian tribes do still exist, and exercise powers of self-government. Indian tribes are distinct, independent political communities, and still have rights of local self-government to regulate internal and social relations. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
77 See, e.g., United States v. Dann, 572 F.2d 222 (9th Cir. 1978) [hereinafter cited as Dann
/].
78 Claims by individual Indians were beyond the jurisdictional scope of the ICC. See 25
U.S.C. § 70a (1976) (authorizing “claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians ….”). See also Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977) (ICC is not empowered to hear individual claims).
79 See, e.g., Cramer v. United States, 261 U.S. 219 (1923).
250 ENVIRONMENTAL AFFAIRS [Vol. 13:241
In addition to these complications, in 1871 Congress withdrew recognition of Indian tribes as independent nations with which the United States may contract by treaty.80 In 1924, Congress granted United States citizenship to all Indians.81 Thus, Indian tribes are no longer politically or legally autonomous, but individual Indians pos sess the constitutionally protected rights of all American citizens.
The doctrine of aboriginal title, however, did not accommodate any of these fundamental changes. Furthermore, when it created the ICC, Congress did not address the legal quagmire of aboriginal title doctrine. It merely created a forum to resolve claims by Indians against the federal government. 82 Unfortunately, the majority of such claims are based on issues of aboriginal title.83 The ICC merely inherited, in toto, an outmoded and unclear common law framework for ascertaining the existence, or the extinguishment, of aboriginal title.
III. THE INDIAN CLAIMS COMMISSION
Despite its limitations, the ICC became the primary legal forum in which Indians could bring suit against the federal government. The legislative history of the Indian Claims Commission Act indi cates that Congress intended the ICC to serve several purposes: to remedy the denial of due process that occurred when Indians were denied a forum in which to sue the federal government; 84 to resolve the financial and administrative problem resulting from Indian de pendence on federal assistance;85 and to settle all Indian grievances with finality. 86 The ICC did provide a viable legal forum for Indian groups, but it denied individual Indian citizens any opportunity to present individual claims or protect individual rights.87 Furthermore, the ICC’s group representation standard for claimants,88 and its reluctance to permit intervention by other interested Indian groups,89 so severely restricted the ICC’s effectiveness that it failed
80 Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 544 (codified at 25 U.S.C. § 71 (1983)).
81 Citizenship Act of 1924, ch. 233, 43 Stat. 253 (codified at 8 U.S.C. § 1401(a)(1) (1983)).
82 See infra notes 84-136 and accompanying text.
83 Pierce, The Work of the Indian Claims Commission, 63 A.B.A. J. 227, 229 (1977).
84 See infra notes 119-22 and accompanying text; see also H.R. REP. No. 1466, 79th Cong., 2d Sess. (1945), reprinted in 1946 U.S. CODE CONG’L SERV. 1347, 1348.
85 See infra notes 123-28 and accompanying text. 86 See infra notes 132-36 and accompanying text. 87 See infra notes 137-215 and accompanying text 88 See infra notes 137-81 and accompanying text. 88 See infra notes 159-76 and accompanying text.
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to develop into an effective forum to settle definitively Indian claims.90
A. Legislative History
Before the ICC was formed in 1946, Indians were barred from suing the federal government directly by the doctrine of sovereign immunity. 91 Congress attempted to resolve this problem by enacting special jurisdictional statutes that waived sovereign immunity and granted jurisdiction to the Court of Claims.92 However, Indians could not bring their claims to the Court of Claims because a provision passed in 1863 expressly removed from the court’s jurisdiction all claims arising out of treaties with Indian tribes.93 In response to Indian petitions, Congress enacted more than one hundred special jurisdictional statutes that granted the Court of Claims jurisdiction over specified claims.94 Both Congress and the Indian community grew dissatisfied with this time-consuming, costly, and often unfair process, 95 so they introduced a number of bills designed to settle all Indian grievances fairly and efficiently. 96
The Indian Claims Commission Act of 194697 was one such bill. It created a commission with authority to hear and finally determine all Indian claims against the federal government that accrued before
August 13, 1946.98 Congress authorized the ICC to adopt its own
90 See infra notes 177-215 and accompanying text.
91 See, e.g., Morrison v. Work, 266 U.S. 481, 488 (1925) (sovereign immunity barred suit raising due process claim against Secretary of the Interior arising out of cession of timber lands in trust).
92 F. CoHEN, supra note 35, at 563. The Court of Claims was succeeded by the Claims
Court in October, 1982. Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, Apr. 2, 1982, 96 Stat. 25 (codified at 28 U.S.C. § 171 (1982)).
93 The Court of Claims Act of March 3, 1863, ch. 92, § 9, 12 Stat. 765, 767 (recodified as
amended at 28 U.S.C. § 1502 (1982)). This Act was passed because some large, well-known Indian tribes had owned slaves and supported the Confederacy in the Civil War. Pierce, supra note 83, at 227. When Indians obtained citizenship status in 1924, 8 U.S.C. § 1401(a)(1) (1924), this prohibition became a serious violation of Indians’ constitutional rights of due process. See infra at notes 291-322 and accompanying text. The prohibition remained in effect until 1949. See 28 U.S.C. § 259 (1940).
94 Barsh, supra note 1, at 10.
95 Otoe and Missouria Tribe v. United States, 131 F. Supp. 265, 272 (Ct. Cl. 1955) cert.
denied, 350 U.S. 848 (1955).
96 For a list of bills proposed, see id. at 272-73, nn. 11-12. For a detailed comparison of the enacted version of the Act with a proposed version of 1935, which effectively illustrates the evolution of the form and function of the ICC, see Note, supra note 23, at 367-70.
97 25 U.S.C. §§ 70-70v-3 (1976).
98 /d. at § 70. Jurisdiction of claims accruing after that date is granted to the Court of Claims. 28 U.S.C. § 1505 (1976).
252 ENVIRONMENTAL AFFAIRS [Vol. 13:241
rules of procedure and provided a framework for fair, efficient and final determination of Indian claims.99 According to the terms of the Act, during the first five years of the ICC’s ten-year existence, 100 any Indian tribe, band, or identifiable group101 was permitted to present claims. 102 When the Secretary of the Interior determined that one tribal organization was authorized to represent a group, that organization was recognized as having an exclusive privilege to represent that group before the ICC. 103 Both the government and the Indian claimants could appeal an ICC decision to the Court of Claims, and subsequently to the Supreme Court. 104 The ICC itself was authorized to certify to the Court of Claims any questions of law. 105 The Act provided that any attorney hired to represent a claimant group before the ICC must be hired according to the sta tutory provisions governing all contracts with Indian groups. 106 These provisions required that to create a valid contract with an Indian group, the contract terms must be approved by both the Secretary of the Interior and the Commissioner of Indian Affairs. 107 In addition, Congress authorized the ICC to set the fees payable to an attorney representing a claim before the ICC. 108
The Act listed five broad classes of claims that could be brought before the ICC. 109 This article discusses the three such classes that encompass land claims: claims based on the Constitution;110 claims involving treaties; 111 and claims that land owned or occupied by
99 25 u.s.c. § 70h (1976).
100 /d. at § 70a. Sixty-two percent of all claims before the ICC were filed in the last six
weeks of the five-year period. Hearings Before the Subcomm. of the Dept. of the Interior and Related Agencies Appropriations for 1960 of the House Comm. on Appropriations, 86th Cong., 1st Sess. 1079 (1952). Because the 370 claims filed could not be completely resolved within the ten-year statutory time limit, Congress amended the Act four times to extend the life of the ICC. The final amendment called for the ICC to complete its work by the end of fiscal year 1978. 25 U.S.C. § 70v (1976). The ICC transferred its unfinished dockets to the Court of Claims. FINAL REPORT, supra note 10, at 20.
101 25 U.S.C. § 70a (1976).
102 /d. at § 70i.
103 I d.
104 /d. at § 70s(b)-(c). The decisions published by the ICC are not readily available, nor conveniently indexed. Thus, appellate decisions by the Court of Claims and the Supreme Court provide the most accessible, though limited, view of the ICC’s proceedings.
105 25 U.S. C. § 70s(a) (1976).
106 I d. at § 70n (1976).
107 /d. at § 81.
108 /d. at § 70n. The fee was not to exceed ten percent of the ICC’s award. /d.
109 Whim, supra note 48, at 1256.
110 25 U.S. C. § 70a (1976).
lll /d.
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Indians had been confiscated without the payment of agreed upon compensation. 112 According to the language of the Act, these claims could sound in either law or equity. 113 Thus, the Act seemed to empower the ICC to grant equitable compensation, in the form of fee simple title to the land in question.
Despite this implicit recognition of equitable claims, the wording
of the Act also implied that Congress intended to limit the remedy available to monetary compensation. 114 One section of the Act, for example, provided that “[t]he final determination of the Commission
… shall include … a statement [ofJ whether there are any just grounds for relief and, if so, the amount thereof ….”115 Another section provided that “there is hereby authorized to be appropriated such sums as are necessary to pay the final determination of the Commission.”116 The ICC and the Court of Claims interpreted this
112 !d.
113 !d.
114 Note, supra note 23, at 390. Congress’ creation of the ICC to hear Indian claims against the government had the anomalous result of establishing a quasi-judicial proceeding in which equitable claims could be heard but no equitable remedy could be granted. The Indian Claims Commission Act made possible equitable and moral claims otherwise not permitted under the common Jaw that had developed in the era of special jurisdictional acts, see supra note 94 and accompanying text, but it implicitly limited the remedy available to Indian claimants to money judgments. See infra notes 114-17 and accompanying text. Since the Act’s language was general, its interpretation was left to the discretion of the ICC and the courts. The Act’s language did not, however, appear to leave any opportunity for the ICC to settle title disputes. In Otoe & Missouria Tribe of Indians v. United States, 131 F. Supp. 265 (Ct. Cl. 1955), cert. denied, 350 U.S. 848 (1955), the Court of Claims rejected an interpretation of the Act which would have precluded claims based on aboriginal title that had not been “recognized” by Congress in the sense described in Tee-Hit-Ton. 131 F. Supp. at 285; see supra notes 48- 55 and accompanying text. Had the court accepted the government’s interpretation of the Act, many tribes would have been prevented from recovering for either unjust land transac tions, or for outright confiscations of their aboriginal land. Whim, supra note 48, at 1256. Instead, the court unanimously concluded that claimants asserting extinguished aboriginal title before the ICC could recover the land’s fair market value at the time of confiscation. 131
F. Supp. at 290-91. Otoe thus mitigated the potentially preclusive effect of the Tee-Hit-Ton decision on aboriginal claims before the ICC. Whim, supra note 48, at 1257. In addition, the court in Otoe reviewed extensively the congressional intent of the Act, and held that the ICC possessed broad authority to hear all outstanding Indian claims against the government, regardless of whether they were legal, equitable, or moral. 131 F. Supp. at 275. See 25 U.S. C.
§ 70a (1976). Indian individuals as well as groups may bring claims accruing after August 13,
1946 before the Court of Claims. 28 U.S. C. § 1505 (1976).
While the Court of Claims interpreted the Act broadly to allow the ICC to hear equitable and moral claims (otherwise not permitted under the common law that had developed in the era of special jurisdictional acts), neither the ICC nor the Court of Claims ever addressed the issue of whether any remedy other than monetary compensation was available under the Act. The silence of both the Act and the courts indicates that the ICC was not intended to decide title disputes.
115 25 U.S.C. § 70r (1976) (emphasis added).
116 !d. at § 70u (emphasis added).
254 ENVIRONMENTAL AFFAIRS [Vol. 13:241
language to limit relief to monetary compensation. 117 The Act’s fail ure to address the possibility of granting title as compensation in dicated that Congress did not intend the ICC to settle title dis putes.118
Instead, Congress intended the Act to accomplish three goals. First, the Act was to eliminate the injustice of denying Indians the opportunity to bring suits directly before the Court of Claims. 119 The
report of the House Committee on Indian Affairs120 that recom mended passage of the Act stated that the Act was designed
not only to grant the Indian his long-delay[ed] day in court, but also to set up an impartial fact-finding commission which [would] facilitate the judicial solution of disputed cases, and report di rectly to the Congress on those cases where the law is undisputed and the facts are clear.121
Although the Act did not provide for the ICC to hear valid claims by individual Indians, the Act was considered a sufficient forum for all Indian suits because Indian claims were assumed to be tribal and not individual. 122
Second, Congress provided a forum for Indian claims to encourage Indians to sever their tribal ties and to become assimilated into American society. 123 Until all land claims were settled, the committee report claimed, Indians were “impelled to cling to tribal associa tions, “124 in order to maintain their right to any forthcoming settle ment from the government. 125 The Act would effectively diminish federal expenditures for Indians, because Congress intended the ICC’s judgment funds to lessen Indian dependence on other federal assistance. 126 The committee report stated:
117 See, e.g., Osage Nation v. United States, 1 I.C.C. 54, 65-66 (1948), rev’d on other
grounds, 119 Ct. Cl. 592 (1951), cert. denied, 342 U.S. 896 (1951) (“The Indian Claims Commission Act does not specifically state the character of relief the Commission may grant, but this lack of specificity is not vital, for its provisions plainly limit the relief to that which is compensable in money …. No other kind of relief is provided for in the act.”).
118 !d. Settling a title dispute, however, is in effect what the ICC did in the Dann case. See infra note 217 and accompanying text.
119 H.R. REP. No. 1466, 79th Cong., 2d Sess. (1945), reprinted in 1946 U.S. CODE CONG’L
SERV. 1347, 1348 [hereinafter cited as House Committee on Indian Affairs].
120 I d. at 1349.
121 I d. at 1348.
122 !d. at 1349 (“Once Indian tribes are given the same right as any non-Indian to bring suit on grievances that may arise in the future, there would be no need to accord any special treatment to such Indian claims as may subsequently arise.” (emphasis added)).
123 !d. at 1351.
124 !d. See supra notes 60-67 and accompanying text.
125 !d.
126 I d. at 1354.
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[i]f the result of the proposed adjudication of existing claims will be, as your committee confidently expects, to permit a reduction of at least 50 percent in Federal expenditures on Indians during the next 50 years, tM total ultimate saving in such expenditures would be in the neighborhood of $750,000,000, a sum many times the most optimistic estimate made by the Indians of probable recoveries on all existing claims. 127
If the estimates proved true, 128 the ICC would benefit all concerned
-government as well as Indians.
Third, Congress intended the ICC to accomodate all Indian claims with finality, so that Congress could be rid of cumbersome Indian
claims forever. The process of passing special jurisdictional acts “impose[d] a vast and growing burden upon the legislative and ex
ecutive branches of the Government. “129 Special jurisdictional acts took time and resources to secure.13° Claims presented in the pro
posed jurisdictional acts may have been incomplete or subsequently changed, thereby requiring some amendment to the original juris dictional act, or additional legislation. 131 Although the committee report initially stated the Act’s primary purpose was “to grant the Indian his long-delay[ed] day in court,”132 the report later stated that the “chief purpose” of the Act was “to dispose of the Indian claims problem with finality. “133 The report referred to the explicit listing of all classes of cases, 134 and the treatment of an ICC decision as a final judgment of the Court of Claims, 135 as provisions intended to provide finality. 136 Although Congress clearly articulated its three goals of providing a fair forum for Indian grievances, reducing fed eral assistance to Indians, and settling all pendent claims, Congress did not indicate which goal had priority over the others. Instead, Congress left the task of establishing the relative weight of its three goals to the ICC and the Court of Claims.
127 /d.
128 One commentator notes the inaccuracy of the committee report’s analysis:
Ideally, claims payments would give Indian people the necessary stake to begin a new life as ordinary citizens far from the reservations. In actual fact, the amounts paid were relatively small on a per capita basis and Indian communities persisted.
Laurie, Historical Background, in THE AMERICAN INDIAN TODAY 81 (L. Stuart & N. Lurie ed. 1968).
129 House Committee on Indian Affairs, supra note 119, at 1352.
130 /d.
131 I d. at 1352–53.
132 I d. at 1348.
133 I d. at 1356.
134/d.
135 I d. at 1358.
136 I d. at 1356, 1358.
256 ENVIRONMENTAL AFFAIRS [Vol. 13:241
B. Representation before the Indian Claims Commission
As a result of the ICC’s internal procedures, the congressional goals of reducing the federal burden of both Indian dependency and numerous pending claims were satisfied, but the less explicitly ar ticulated congressional goal of providing Indians with a forum to protect their constitutional rights was not. However, while it did provide an adequate forum for Indian groups, the ICC failed to provide a similar forum for individual Indians.
Congress in the Indian Claims Commission Act 137 granted the ICC
authority to establish its own rules of procedure, but specified that potential claimants could only represent group claims:
[a]ny claim within the provisions of this Act may be presented to the Commission by any member of an Indian tribe, band, or other identifiable group of Indians as the representative of all its members; but wherever any tribal organization exists, rec ognized by the Secretary of the Interior as having authority to represent such tribe, band, or group, such organization shall be accorded the exclusive privilege of representing such Indians, unless fraud, collusion, or laches on the part of such organization be shown to the satisfaction of the Commission. 138
The ICC’s regulations regarding recognized successors-in-interest 139 closely echoed this language. These regulations authorized three types of claimants: (1) a duly elected or appointed officer of a group that had been authorized by the Secretary of the Interior; 140 (2) any member of such a group if the group’s organization did not bring a claim because of fraud, collusion, or laches;141 and (3) any member of a group that was not formally authorized. 142 These categories of potential claimants were broadly framed, apparently to ensure that all viable Indian claims could be pursued.
In its opinions construing the parameters of the ICC’s represen tation standards, 143 the Court of Claims allowed the broadly permis sive representation of claims. For example, in Thompson v. United States,144 the court held that claimants could bring suit on behalf of
137 25 u.s.c. § 70h (1976).
138 Id. at § 70i.
139 25 C.F.R. § 503.1 (1978).
140 ld. at§ 503.1(b).
141 Id. at§ 503.1(c).
142 ld. at § 503.1(d).
143 See, e.g., Thompson v. United States, 122 Ct. Cl. 348 (1952), cert. denied, 344 U.S. 856
(1956); McGhee v. Creek Nation, 122 Ct. Cl. 380 (1952).
144 122 Ct. Cl. 348 (1952), cert. denied, 344 U.S. 856 (1952).
1986] INDIAN CLAIMS COMMISSION 257
the “Indians of California,” without identifying specific tribes or bands. The court reasoned that the inclusion of the phrase “or other identifiable groups” in the Act indicated congressional intent to broaden the category of Indian groups entitled to present claims
against the government. 145 The court ruled that the Act permitted
a single representative action on behalf of several groups where the claimants can be identified as members or descendants of members of tribes, bands, or communities existing when the claim arose.146
In Turtle Mountain Band of Chippewa Indians v. United States,147 the Court of Claims addressed the issue of whether the ICC properly
had designated the ancestral land-owning group. Three distinct bands of the same ancestral group filed separate claims before the ICC. 148 All three claims involved the same 10 million acre parcel of
land in North Dakota, and each sought fair compensation for the extinguishment of the ancestral group’s aboriginal title. 149
In a consolidated proceeding, the ICC coined a name for the identifiable ancestral group, and ruled that the identifiable group
had held aboriginal title to most of the land involved in the agree ment.150 One of the five issues raised on appeal was whether the ICC properly had designated the ancestral land-owning entity. 151 Two of the three claimant bands asserted that the correct designation of the identifiable group was the name of their own band. 152 They claimed
that the ICC’s designation was either too broad, too recently coined, or too vague. 153 The Court of Claims agreed, and modified the ICC’s designation into a definitional, 24-word title, 154 accompanied by an
145 I d. at 360.
146 !d. at 357.
147 490 F.2d 935 (Ct. Cl. 1974).
148 I d. at 938.
149 !d. The court described the extinguishing transaction as follows:
After two unsuccessful attempts to negotiate a cession, Congress established the McCumber Commission to acquire this Pembina North Dakota region. This agency negotiated with the Chippewas until Little Shell, the hereditary chief, withdrew along with several others from the negotiations in protest. The local Indian agent selected a “Committee of 32” to represent the Indians, and the negotiations continued, concluding with a pact on October 22, 1892. After a long delay, Congress amended and approved the agreement on April 21, 1904, … and the Indians approved [it] on February 15, 1905.
!d.
150 !d. at 938, 939.
151 !d. at 939.
152 !d. at 950-51.
153 !d.
154 !d. at 952. The court designated the identifiable group as the “American Pembina Chip-
258 ENVIRONMENTAL AFFAIRS [Vol. 13:241
apologetic explanation: “[t]his title, although somewhat ungainly, accomplishes the purpose of excluding those not in interest, and including all with colorable claims. “155
The court’s premise was that the ICC was to determine which identifiable group of Indians had been wronged. 156 Therefore the ICC should not have described the identifiable group “in such a way
as to exclude any claimant with a colorable right, or to give a ‘leg up’ to any one of several, possibly competing, entities all deriving [their claims] through the same ancestral group.”157 At the same time, the court acknowledged that the ICC merely had the duty to denominate the wronged entity. Congress alone had the authority to decide such questions as which members may share in the judg ment award. 158
The court’s decisions in Thompson and Turtle Mountain Band
illustrate their concern for designating the identifiable group broadly
in order to include all claimants with a viable interest in the lands in question. Its holding in Thompson, that the loosely named “In dians of California” constituted an “identifiable group” under the Act, and its holding in Turtle Mountain Band, that the ICC’s des ignation of the identifiable group should be as inclusive yet precise as possible, reinforced the broad sweep of the Act’s phrase “identi fiable group.”
One of the ICC’s noteworthy inadequacies is that neither its es tablishing Act 159 nor its own rules of procedure 160 contain any pro vision concerning standards for intervention by interested parties. This is surprising, in light of Congress’ concern for full, fair, and final determination of all outstanding Indian claims. 161 In a report of the House Committee on Indian Affairs, for example, the Committee expressed its concern that the classes of claims to be heard by the ICC should “be broad enough to include all possible claims,” to prevent further appeals for special jurisdictional acts. 162 Apparently, however, Congress did not foresee the similar potential for dispute
pewa group (full and mixed bloods), including the subgroups of the Turtle Mountain Band, the Pembina Band, and the Little Shell Bands.” !d.
155 !d.
156 !d. at 951.
157 Id. at 951-52.
158 I d. at 952-53.
159 25 U.S.C. §§ 70-70v (1976).
160 25 C.F.R. §§ 503.1-503.42 (1978).
161 House Committee on Indian Affairs, supra note 119, at 1355.
162 !d. at 1355-56.
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resulting from a deficient intervention policy. Although decisions in the Court of Claims indicate that the standard for intervention should be as permissive as that for bringing a claim, 163 the ICC itself limited parties’ rights to intervene once a claim had been filed. 164
For example, in McGhee v. Creek Nation, 165 the Court of Claims held that any group identified as descendants of the tribe or band
existing when the claim arose, met the statute’s jurisdictional re quirements, and may intervene in an action brought by another group of descendants. 166 The claimants recognized by the ICC in McGhee represented that part of the Creek Nation which had emi grated west to Oklahoma to establish a new tribal government. The United States government formally recognized the new tribe. The attempted intervenors descended from a group which had remained east of the Mississippi, and had become United States citizens. 167 The ICC denied their motion to intervene. 168 Because the intervenors did not constitute a tribe recognized by the United States, the ICC concluded that they were individuals with separate claims, and not a recognized tribe. Thus, the ICC determined that it lacked the authority to hear the claims. 169 Creek descendants who had brought the claim, on the other hand, represented the recognized Creek tribe. 170
The Court of Claims reversed the ICC and granted the interven
ors’ motion. 171 The court reasoned that the disbanding of the tribe as it existed at the time the claim arose did not change the group
163 See, e.g., McGhee v. United States, 122 Ct. Cl. 380, 391 (1952); see infra note 175 and accompanying text.
164 See infra notes 178-215 and accompanying text.
165 122 Ct. Cl. 380 (1952), cert. denied, 344 U.S. 856 (1952).
166 I d. at 391.
167 !d. at 385. The land cession which was the basis of the claim before the ICC was part of a treaty entered into in 1814, between the Creek Nation and the United States, whereby the Creek Nation ceded to the United States some 23,000,000 acres of their aboriginal title land without compensation. !d. at 383-84. The claimant group before the ICC contended that the Creeks entered this treaty under duress, and the United States had violated the standards of fair and honorable dealings developed by the Indian Claims Commission Act. !d. at 384 n.6. See 25 U.S.C. § 70a(5) (1976).
168 !d. at 382. The motion to intervene was filed in 1951, before the Act’s deadline for filing
new claims. !d.
169 I d. at 391.
170 !d. at 383. The ICC also concluded that it could not grant intervention because it did not
have the authority; only Congress could identify the individual Indians eligible to recover on a claim. !d.
171 I d. at 391.
260 ENVIRONMENTAL AFFAIRS [Vol. 13:241
character of the claim. 172 Thus, both an officially organized group of descendants and unorganized but identifiable group of descendants of the same ancestral entity may be separately represented before the ICC.173
The court recognized the ICC’s authority to allow all interested
parties, consisting of an identifiable group of Indians, to intervene or become parties to the suit.174 The legislative purpose of complete
and expeditious settlement of all Indian claims would be thwarted if the ICC denied intervention to descendants of the tribe which held
the aboriginal title when the claim arose. 175 This conclusion, however,
has not been interpreted to require the ICC to permit the interven
tion of all contesting tribal descendants. 176
The ICC’s broad group representation standards were flawed be cause Congress, in its attempt to prevent claims from unrepresented
Indians, failed to foresee the possibility of competing interests within ancestral groups. 177 Thus, the group representation standards as
drafted created problems for unrepresented descendant subgroups or individuals when they attempted to intervene later in the ICC proceedings. These problems are best illustrated by the lawsuits involving the Seminoles and the Six Nations Confederacy.
172 !d. at 392.
173 !d. at 392. The court dismissed the ICC’s reasoning that because only Congress had the authority to determine the individual Indians eligible to share in an ICC judgment, the ICC could not grant the petition to intervene. !d. at 386-88. The court reasoned that the petition to intervene did not require the ICC to make an ultra vires determination, but merely raised the issue of whether the petitioner had the exclusive right to prosecute the claim, or whether representatives of descendants of the entire Creek Nation were the proper claimants. !d. at 395.
174 !d. at 394 (dicta).
175 I d. at 395.
176 Barsh, supra note 1, at 20. The intervenors in McGhee may be distinguished. They filed their motion to intervene in early 1951, months before the Act’s deadline for filing claims. See
supra note 168 and accompanying text.
177 Indians filing claims before the ICC sought monetary compensation for their confiscated land; some Indians did not file claims, however, because they wanted to retain the land itself. The Act’s legislative history indicates that Congress assumed the United States government had already paid some consideration for confiscated land involved in claims before the ICC. See, e.g., House Committee on Indian Affairs, supra note 119, at 1355 (“[A]bout 95 percent of the land that has been brought under the control of the Federal Government from 1776 to the present day has been acquired by open sale and agreement from the Indian tribes. It is only the exceptional, rather than the normal, case that presents the situation of land taken by the United States without compensation fixed by formal agreement.”). Based on this assumption, Congress did not expect Indians to have legitimate claims for the land itself. Barsh, supra note 1, at 21.
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1. The Seminole Nation
Despite the court’s decisions in M cGhee 178 and Turtle Mountain, 179 once the representative of an identifiable group is recognized, this claimant group is the exclusive representative of all tribal descen dants, even though not all of the competing interests are repre sented. This situation arises where Indians still occupy aboriginal land, and are therefore unlikely to file a claim with the ICC for lands to which they apparently still hold title. 180 Members who were dis placed by the government from a portion of the tribal land, however, had a monetary incentive to include the entire ancestral parcel in their claim. Furthermore, Indians still living on aboriginal land may not have had notice that a separate descendant group claimed the extinguishment of aboriginal title. Then, when the Indians occupying aboriginal land attempted to intervene in the ICC proceedings, they were usually denied the right because the proceedings were at an advanced stage.181 The Seminole Nation’s claim is the earliest ex ample of such conflicting interests within a tribal group. 182
The Seminole Nation in Florida is divided into “reservation” Sem
inoles, and “traditional,” or unaffiliated Seminoles, who continue to live on aboriginal land in the Everglades. 183 At the suggestion of the Bureau of Indian Affairs, a group of reservation Seminoles filed a claim for lands allegedly taken by the government. 184 This claim included the lands on which the traditional Seminoles continued to live. In 1954, the traditional Seminoles filed a motion to dismiss the reservation Seminoles’ claim before the ICC. 185 In a summary pro ceeding, the ICC denied the motion and struck it from the record. 186
178 122 Ct. Cl. 380 (1952), cert. denied, 344 U.S. 856 (1952). See supra notes 165-76 and accompanying text.
179 490 F.2d 935 (Ct. Cl. 1974). See supra notes 147-58 and accompanying text.
180 This is particularly troublesome because of the widespread Indian custom of registering disapproval of a certain tribal course of action by refusing to participate. P. MATTHIESEN, IN THE SPIRIT OF CRAZY HORSE 27 (1983).
181 See, e.g., statement of Robert Coulter, attorney for traditional Seminoles, in Distribution of Seminole Judgment Funds: Hearings Before the Senate Select Comm. on Indian Affairs, 95th Cong., 2d Sess. 61 (1978) [hereinafter cited as 1978 Hearings].
182 See 1978 Hearings, supra note 181, at 61-127.
183 !d. at 50.
184 Billie v. United States, 146 F.Supp. 459, 459 (Ct. Cl. 1956), cert. denied, 355 U.S. 843
(1957).
185 146 F. Supp. at 460. Although the traditional Seminoles incorrectly filed a motion to quash, the court entertained the motion as a motion to dismiss. I d.
186 !d. No reason was given for the denial. 1978 Hearings, supra note 181, at 61.
262 ENVIRONMENTAL AFFAIRS [Vol. 13:241
On appeal, the Court of Claims refused to review the ICC’s decision because it did not constitute a final order. 187 The court added, how ever, that
[i]t seems to be appellant’s position that although it is not and does not wish to be a party to the suit, its title to part of the land which is the subject matter of the suit is paramount, and that a decree of the Indian Claims Commission establishing the rights of the original parties to that subject matter (land) would work an injustice and irreparable injury on the appellant. If appellant’s title to the land which is the subject matter of the suit is indeed paramount, his paramount title will not be affected by the decree of the Commission as to the rights of the original parties since it will not purport to adjudicate appellant’s title or right to the land in question. 188
After another unsuccessful attempt to intervene in the ICC pro ceedings, 189 the traditional Seminoles contacted the Interior Depart ment, the Bureau of Indian Affairs, members of Congress, and members of the Eisenhower Administration. 190 In response to their plea, President Eisenhower assigned a special representative to meet with the traditional Seminoles. 191
The ICC proceedings continued, however, without the traditional Seminoles’ participation, and in 1976 the ICC approved a compromise
settlement of $16 million. 192 Once the judgment was rendered, the government broke off negotiations with the traditional group. 193 The Justice Department contended that by including the traditional Sem inoles in a judgment, with or without the group’s consent, the ICC settled all outstanding claims against the government. 194 It remains
187 146 F. Supp. at 461.
188 I d. The court then declared the issue not ripe for appeal. Id.
189 1978 Hearings, supra note 181, at 60.
190 I d. at 58.
191 I d. at 98.
192 I d. at 2.
193 Barsh, supra note 1, at 20.
194 1978 Hearings, supra note 181, at 58. Traditional Seminoles brought an action seeking an injunction to halt the distribution of the ICC’s judgment in 1977. Osceola v. Kuykendall, 4 INDIAN L. REP. F-80 (AM. INDIAN LAW. TRAINING PROGRAM) (Mar. 11, 1977). A district
court for the District of Columbia dismissed the claim, holding that the ICC proceedings did not threaten the Indians’ possessory interest:
Entry of the judgment will create no new property rights in the United States, for the United States already holds fee simple title to the land, subject only to any rights of possession which plaintiffs and others like him may have. Similarly, plaintiff’s right of possession and occupancy will not be affected by the judgment.
Id. at F-82. The court observed that in the future, the traditional Seminoles might have to
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unclear whether the claim of the traditional Seminoles is conclusively decided. 195
2. Six Nations Confederacy
The ICC’s recognition of a given claimant as the representative of an identifiable group presents another obstacle to the equitable res olution of claims. Such a policy does not preclude suits by subgroups on behalf of larger groups which have organized governing bodies, and which have refused to approve or ratify claims. 196 Instead, the ICC regulations permitted any member of a formally organized group to bring a claim on behalf of the group, providing the claimant could prove that the group officers had refused to bring suit.197 Moreover, the ICC procedures do not require formal tribal repre sentatives to testify about the reason for their refusal to file a claim. The ICC relies instead on the claimant group’s proof that its request to the tribal entity to bring suit has been refused. 198 The problems engendered by the ICC’s permissive allowance of claims, without regard for conflict within the tribal organization, are illustrated by the Six Nations Confederacy claim.
A group of Six Nations Indians filed a claim on behalf of the Six Nations in 1950,199 even though the Six Nations’ official leadership had denied the claimants’ attorneys the authority to represent the
Confederacy before the ICC.200 In 1973 the ICC entered its final judgment. 201 The governing body of the Six Nations continued to
assert that the claimants before the ICC were not authorized to represent the Six Nations. Rather than present his assertions to the ICC in its hearings on the disposition of the award, Chief Shenan doah contacted President Nixon and negotiated with the Department
prove possession of Indian title and continuous use and occupancy of the land “to protect [their] rights against interference by the United States or third parties.” ld. at F-83.
The traditional Seminoles also attempted to amend the bill authorizing the distribution of the judgment funds, with a provision reserving their aboriginal title to land and forestalling any res judicata effect the judgment might have. They were unsuccessful here as well. 1978 Hearings, supra note 181, at 56.
195 The Dann decision provides precedent for the proposition that the Seminole claim can
no longer be asserted. See infra notes 276-91 and accompanying text.
196 Such a prohibition might have ensured fuller and fairer representation of the tribal group
when differences within the• group existed.
197 25 C.F.R. § 501(c) (1978).
198 /d.
199 Six Nations Confederacy v. Andrus, 447 F. Supp. 40, 41 (D.D.C. 1977).
200 ld. at 42 n.5.
201 I d. at 41.
264 ENVIRONMENTAL AFFAIRS [Vol. 13:241
of the Interior.202 Despite these negotiations, the Department of the Interior submitted to Congress a plan for distribution of the ICC’s judgment. 203 The plan became effective in 1977.204 The Six Nations leadership sought redress in Six Nations Confederacy v. Andrus. 205 They claimed that payment of the award would irreparably impair
the leadership’s rights under certain treaties, and that such an im pairment would be effected without due process. 206 The district court dismissed the Six Nations’ claim because the ICC’s judgment was final once reported to Congress, and could not be set aside.207 The
appellate court affirmed 208 on the grounds that the tribal leadership
had forfeited their only remedy by not intervening before the ICC.209 The Six Nations Confederacy and Seminole examples illustrate
that the ICC’s narrow intervention standards foreclosed valid ab original title claims. This unanticipated effect occurred despite the ICC’s broadly construed representation standards that were origi nally intended to allow fairer and fuller representation of Indian claims. In light of the breakdown of tribal structures, and the diffi culty of ascertaining present-day tribal title and descendants, the ICC was an unsuccessful attempt by Congress to settle claims that arose at a time when Indian tribes were recognized as sovereign entities by the conquering European culture.
The ICC required claimants, as an initial matter, to prove that they were the successors-in-interest to the aboriginal title in ques tion.210 At this stage the ICC determined whether the Indian group
was legally entitled to bring their claim.211 The ICC established broad group representation standards in order to permit the maxi mum number of recoveries. The Court of Claims also interpreted these standards broadly.
Despite the ICC’s permissive representation standards, however,
complete representation of valid claims was limited by a restrictive
202 I d. at 42.
203 !d.
204 !d.
w5 610 F.2d 996 (D.C. Cir. 1979) (per curiam), cert. denied, 447 U.S. 922 (1980).
206 447 F. Supp. at 42.
207 I d. at 43.
ws 610 F.2d at 998.
209 !d.
210 1971 Indian Claims Commission 1-2. The second, or valuation, stage determined the liability of the government, which was computed by subtracting any previously paid compen sation from the value of the acreage in question at the time of extinguishment. !d. In the third stage, the ICC offset gratuitous payments by the government against the amount owed.
!d.
211 !d.
1986] INDIAN CLAIMS COMMISSION 265
intervention standard. Many Indians no longer live in their ances tors’ tribal groups since, through forcible or gradual dispersal, tribes have splintered into subgroups. 212 The ICC’s narrow intervention policy provided that once a subgroup filed a claim with the ICC on behalf of the entire ancestral group, other subgroups that had not filed during that period were excluded from representation. 213 Non claimant subgroups thus were not permitted to intervene; there were no provisions for the possibility that conflicting subgroups may not have filed as claimants, either 6ecause they believed that the claim filed would fairly represent their interests, or because their claims were addressed to other branches of the federal government. 214 By adhering to a strict group representation standard without a corre spondingly lenient intervention policy, the ICC may have violated the procedural due process rights of unrepresented individuals. 215
IV. UNITED STATES V. DANN
The difficulties inherent in the ICC’s permissive representation and strict intervention standards that were discussed above, com pounded the problems of compensating non-affiliated Indians for aboriginal lands taken by the government. The inadequacies of both the outmoded definition of aboriginal title rights and the ICC’s rep resentation standards, culminated in the case of United States v. Dann.216 In Dann, the federal district court in Nevada held that aboriginal title was extinguished on the date when the ICC’s judg ment became final, which was more than a century after the date of extinguishment used by the ICC to value the claim.217 The court’s decision in Dann presented a welter of overlapping legal, moral, and constitutional issues that plagued ICC proceedings since 1946. The history of the case itself is a tangled web of litigation.
A. The Western Shoshone Claim
The Western Shoshone Indians were a tribe comprised of smaller groups or bands who occupied territories in the present-day states
212 Weatherhead, What is an Indian Tribe? – The Question of Tribal Existence, 8 AM. IND. L. REV. 1, 43 (1980) (“the social fact of assimilation – intermarriage, loss of tribal custom, adoption of Western life-styles, ‘checkerboarding’ of reservations”).
213 See supra notes 178-82, 196-210 and accompanying text.
214 See supra notes 190-92, 203 and accompanying text.
215 See infra notes 292-323 and accompanying text.
216 Civil No. R-74-60 (Apr. 25, 1980), rev’d, 706 F.2d 919, 926 (1983), cert. granted, 52
U.S.L.W. 3763 (U.S. Apr. 17, 1984), rev’d, 53 U.S.L.W. 4169, 4171 (U.S. Feb. 20, 1985).
217 706 F.2d at 923.
266 ENVIRONMENTAL AFFAIRS [Vol. 13:241
of Nevada and California.218 Some groups of Western Shoshone In dians have continuously asserted that there has been no government action to extinguish their aboriginal title. 219 A year after the ICC was created, the Temoak band of the Western Shoshone Indians initiated the claims procedure by approving a claims attorney con tract.220 The contract was also approved by the Secretary of the Interior, as required by ICC regulations. 221 The Temoak band’s at torney filed a claim with the ICC in 1951, seeking compensation for confiscated lands on behalf of the Western Shoshone tribe.222 Their complaint alleged that “from time to time,” the federal government had extinguished the Western Shoshone’s aboriginal title by confis cation.223 The Temoak band council did not object to the characteri zation of the claim as one for compensation for extinguished title because its attorney repeatedly assured the council that the ICC proceeding would have no effect on present Western Shoshone title or possessory rights. 224 In 1962, the ICC found that the Western Shoshone tribe had held aboriginal title to a total of 24,396,403 acres in Nevada, and that their title to most of this land was extinguished over an unspecified period of time by gradual encroachment of both the federal government and third parties. 225 Four years later, the Temoak claimants, and the government, agreed to stipulate an av erage extinguishment date in order to determine the amount of compensation due. The ICC approved the agreed upon date.226
218 Steward, The Foundations of Basin-Plateau Shoshonean Society, in LANGUAGES AND CULTURES OF WESTERN NORTH AMERICA 113 (E. Swanson ed. 1970).
219 See, e.g., Western Shoshone Legal Defense & Educ. Ass’n v. United States, 531 F.2d 495, 499 (Ct. Cl. 1976), cert. denied, 429 U.S. 885 (1976) (unsuccessful attempt to intervene in ICC proceedings to remove certain lands from pending claim); Temoak Band ofW. Shoshone Indians v. United States, 593 F.2d 994 (Ct. Cl. 1979), cert. denied, 444 U.S. 973 (1979) (unsuccessful attempt to stay ICC award).
220 See supra notes 106-07 and accompanying text.
221 !d.
“22 Shoshone Tribe v. United States, 11 I.C.C. 87 (1962).
223 !d.
224 Transcript, Oral Argument, Temoak Band of W. Shoshone Indians v. United States,
I.C.C. Docket No. 326-K, at 21, 25-26 (Nov. 14, 1974). The claims attorney for the Temoak band stated:
I’ve met with the Indians many times to determine these problems and have sought guidance. And the question has been raised, well, we want our land. We don’t want termination …. This litigation means we are selling our land. And the answer is very simple. You are not selling your land. Anything that has been taken has been taken. This lawsuit is for compensation. It doesn’t change your title one bit.
!d. at 21.
225 Shoshone Tribe, 11 I.C.C. at 413-14, 416.
226 Temoak Band, 593 F.2d at 996.
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The Temoak band council allowed its claims attorney contract to expire in 1968.227 The attorney continued to represent the Temoak claim before the ICC, however, by consulting with a group ofTemoak Indians who called themselves the “Western Shoshone Claims Com mission,” even though the Temoak band council was named as both the official representative of the Western Shoshone identifiable group, and as the client in the approved claims attorney contract.228 During this period, the Dann band of Western Shoshone still lived
on several of the 24,000,000 acres involved in the Temoak’s claim. The Western Shoshone Legal Defense and Education Association, with which the Dann band was affiliated, attempted to intervene in the ICC proceedings. 229 The Association argued that any lands to which it claimed aboriginal title should be excluded from the deter mination of the final award. The ICC denied their motion to inter vene on the ground that the issue of title extinguishment had been decided in an earlier ruling. 230 The Court of Claims affirmed. 231 The court held that in light of the lateness of the Association’s motion, the petitioners failed to make a showing sufficient to require their participation in the ICC proceedings. 232 The court distinguished the Turile M ountain233 decision on the basis that both subgroups in that case had participated in the ICC proceeding from the beginning. 234 The Association’s petition for certiorari to the United States Su preme Court was denied. 235
227 !d. at 997.
228 !d.
229 Western Shoshone Legal Defense & Educ. Ass’n v. United States, 531 F.2d at 497 (Ct. Cl. 1976).
230 35 I.c.c. 457 (1955).
231 Western Shoshone Legal Defense & Educ. Ass’n, 531 F.2d at 497.
232 !d. at 503 (“The hour is very late and the showing is not strong.”).
233 490 F.2d 935 (Ct. Cl. 1974); see supra notes 147-58 and accompanying text.
234 531 F.2d at 504 n.18.
235 419 U.S. 855 (1976). The litigation did not end there. In support of the Association, the Temoak claimants obtained new counsel and filed new pleadings that adopted the Association’s position. The reformulated claim asserted that aboriginal title to the lands in question had never been extinguished. Temoak Band, 593 F.2d at 997. The new pleadings also asserted that the Temoak band’s previous attorney had not presented them with the choice of whether to include all ancestral lands in the claim, or to assert that title to a portion of the land was not extinguished. !d. The Temoaks’ new attorney filed a motion to stay the ICC proceedings, pending a determination by the Department of the Interior on their newly endorsed title claim. The ICC denied the stay, however, and entered a final judgment. 40 I.C.C. 305 (1977). The Court of Claims affirmed the ICC’s ruling on appeal, reasoning that it was too late for the claimants to reverse their litigation strategy. 593 F.2d at 996. The court suggested that the Temoak claimants could petition Congress for relief from the ICC’s final judgment. !d. at 999.
268 ENVIRONMENTAL AFFAIRS [Vol. 13:241
B. United States Government Claim Against the Dann Band
The claims in United States v. Dann236 were entirely separate from ICC proceedings involving the Western Shoshone claim. The federal government filed suit against the Dann band in district court in 1974, alleging that the Dann band was grazing its livestock on public land without a permit. 237 The Danns asserted that the grazing lands were not public, but were lands to which they held unextin guished aboriginal title.238 Summary judgment was granted for the government, on the grounds that the Danns were collaterally es topped by the ICC’s 1962 decision that the United States had ac quired all twenty-two million acres of Western Shoshone land.239
In United States v. Dann (Dann 1),240 the Ninth Circuit reversed.
The court held that collateral estoppel did not preclude litigation of
the issue of extinguishment of aboriginal title because that issue had not been actually litigated before the ICC.241 Neither res judicata nor collateral estoppel applied because the ICC’s award had not yet been paid to the Western Shoshone.242
On remand, the district court ignored the appellate court’s decision
and enjoined the Dann band from grazing their livestock on the lands in question.243 The court reasoned that its final judgment for the Western Shoshone rendered the award final for purposes of res judicata and collateral estoppel,244 The Western Shoshone’s aborigi nal title was held to be extinguished on the date the award was certified.245
In United States v. Dann (Dann II),246 the Ninth Circuit again reversed the district court’s holding. 247 Relying on its holding in
Dann 1,248 the Ninth Circuit reiterated that the Dann band was not collaterally estopped from raising aboriginal title as a defense in the
present proceedings because the issue of extinguishment of title was not actually litigated before the ICC.249 The court also held that the
236 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985).
237 Dann I, 572 F.2d at 223.
238 !d.
239 I d. at 223.
240 572 F.2d 222 (9th Cir. 1978).
241 I d. at 226.
242 /d.
243 Dann II, 706 F.2d at 923.
244 !d.
245 /d.
246 706 F.2d 919 (9th Cir. 1983).
247 /d.
248 See supra notes 240-42 and accompanying text.
249 706 F.2d at 924. The court also denied that the ICC’s decision had any res judicata effect
1986] INDIAN CLAIMS COMMISSION 269
Western Shoshone’s aboriginal title had never been extinguished. 250 Title had not been extinguished by prior application of public land laws or by creation of a Western Shoshone reservation because these actions did not evince a clear indication of congressional intent to extinguish aboriginal title.251 Furthermore, despite the statutorily mandated finality of its judgment, the ICC itself did not have the authority to extinguish aboriginal title.252
1. The Supreme Court’s Decision
When the United States Supreme Court granted the ICC’s peti tion for certiorari, 253 the question before the Court was whether one group of Indians could assert in collateral litigation that aboriginal title was not extinguished, despite the entry by the ICC of a final judgment to compensate them for extinguishment of that title, when the judgment fund had not yet been distributed. 254 The resolution of this legal issue would decide the underlying question of whether an ICC decision may extinguish aboriginal title.
The government’s primary claim was that a provision of the Indian
Claims Commission Act255 barred the Danns’ assertion of any re tained interest in the lands covered by the judgment. 256 The govern ment presented three supporting arguments. First, since the ICC’s judgment fund is in trust for all descendants of the Western Shosh one tribe, the government has paid the claim under the Act. Actual distribution of the funds to individual Western Shoshone descendants was not necessary to constitute payment under the Act because the claim at issue was tribal, not individual. 257
under the statutory provision that states that payment of any claim decided by the ICC would discharge the United States from any further claims. !d. See also 25 U.S.C. § 70u (1976). Only congressional approval of the award distribution plan constitutes payment within the meaning of the Act. 706 F.2d at 925-26. The court thus distinguished Six Nations Confederacy, because in that case C ngress had already approved a plan for distribution of the award. I d. at 927 n.6; see supra notes 205-09 and accompanying text.
250 706 F.2d at 928.
251 I d. at 929-31.
252 I d. at 928.
253 52 U.S.L.W. 3763 (U.S. Apr. 17, 1984).
254 !d.
255 25 U.S.C. § 70u (1976).
256 Brief for the United States at 22, United States v. Dann, 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985) [hereinafter cited as Brief for the United States]. The government cited a provision of the Act which reads:
The payment of any claim, after its determination in accordance with this [Act], shall
be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.
25 U.S.C. § 70u (1976), cited in Brief for the United States, supra, at 2.
257 Brief for the United States, supra note 256, at 26.
270 ENVIRONMENTAL AFFAIRS [Vol. 13:241
Second, the government relied on the language, legislative history, and purpose of the Act to show that Congress intended appropriation of the judgment fund to constitute final payment. 258 The government asserted that the legislative history of the Act indicated that by creating the ICC, Congress intended to delegate final responsibility for Indian claims against the government to the ICC, and did not intend to retain any authority over the finality of claims determined by the ICC.259
Finally, the government argued that the claimants could have
appealed to Congress at any time during the claims process. 260 The Court’s duty was to apply the Act as written, and then to wait for Congress to decide whether to address particular claims in future legislative action.261
In response, the Danns presented three arguments to support
their claim that aboriginal title in the land on which they live was not precluded, regardless of whether the ICC judgment was paid. First, the Danns asserted that the language of the Act did not support the government’s attempt to seek, in effect, a federal court order to take Indian lands for the first time.262 This argument pre sumed that aboriginal title to the land which the Dann band contin ued to occupy had not yet been extinguished, even though the ICC judgment in part compensated for the extinguishment of their ti tle.263 The Danns relied on the decision in Osceola v. Kuykendall 264
258 I d. at 30–31.
259 !d. at 33. The government also argued that subsequent legislation that authorized au tomatic appropriation and distribution of judgment funds further evidenced Congress’ intent to eschew any final veto over the resolution of a claim before the ICC. !d. at 44. The government contended that by requiring in 1965 congressional authorization of distribution plans recommended by the Secretary of the Interior, Department of the Interior & Related Agencies Appropriation Act, Pub. L. No. 88–356, 78 Stat. 276 (1965), Congress intended only to oversee the Secretary’s performance of his fiduciary duty to manage tribal property. Brief for the United States, supra note 256, at 40. In 1973, the Distribution of Judgment Funds Act, 25 U.S.C. §§ 1401-1408 (1983 & Supp. 1985), removed this requirement because Congress recognized that the 1965 authorization requirement created too heavy a legislative burden. Brief for the United States, supra note 256, at 41. Congress amended other existing statutes in 1977 and 1978 in order to eliminate legislative authorization of appropriation of funds. !d. at 44.
260 !d. at 46-47.
261 !d.
262 Brief for the Danns, supra note 18, at 25-26.
263 !d. at 26-27. This argument reasoned further that the Danns’ assertion of unextinguished aboriginal title in the present case was not a claim or demand discharged by operation of the Act, but merely a defense. !d. at 27.
264 4 INDIAN L. REP. F-80 (AM. INDIAN LAW. TRAINING PROGRAM) (Mar. 11, 1977), cited
in Brief for the Danns, supra note 18, at 28. In Osceola, the traditional Seminole Indians in possession of aboriginal lands in the Everglades brought an action to restrain the ICC from processing a claim, brought by reservation Seminoles, for the extinguishment of all Seminole
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to argue that the ICC judgment for the Western Shoshone did not affect the Danns’ present possession of aboriginal title, and that therefore the Danns should have had the opportunity to prove pres ent possession of aboriginal title as a defense in this action. 265
The Danns’ second argument was a constitutional one. The Danns
claimed that to bind them to the ICC’s decision as to the Western Shoshone claim deprived them of due process because they were not adequately represented by the Western Shoshone band. 266 Due pro cess required verification that the representative claimant ade quately represented the affected parties. 267 In the Western Shoshone claim before the ICC, however, the Danns asserted that the Temoak band, which sought compensation for extinguished aboriginal title, did not adequately represent those Western Shoshone who, like the Danns, would claim that the tribe’s aboriginal title was not extin guished. 268
Finally, the Danns asserted their individual rights of use and
occupancy that survived abandonment by the Western Shoshone tribe. 269 The Danns relied on Cramer v. United States,270 where the Court held that individual Indian occupancy is entitled to the same protection as tribal rights of occupancy. 271 Furthermore, the Court in United States v. Santa Fe Pacific Rail Road Company272 held that any individual rights of occupancy such as those recognized in Cramer would not be affected by a finding that a tribe had relin quished its tribal claim to land.273
In the alternative, the Danns resorted to the claim that had been unsuccessful below: even if the ICC judgment for the tribe precluded
the Danns’ defense of aboriginal title, it did not discharge their claim because there has been no payment of the ICC’s award within the
meaning of the Act.274
aboriginal title in Florida. Brief for the Danns, supra note 18, at 28. The district court in Osceola dismissed the traditional Seminoles’ complaint, reasoning was that the traditional Seminoles had asserted aboriginal title, which confers the right of possession; that the tradi tional Seminoles were currently in possession of the lands in question; and that the government did not contest their possession. /d.
265 !d. at 27.
266 /d. at 29.
267 /d. at 30.
268 I d. at 32-33.
269 I d. at 33.
270 261 U.S. 219 (1923). See supra notes 68-74 and accompanying text.
271 /d. at 227.
272 314 U.S. 339 (1941). See supra notes 41-47 and accompanying text.
273 /d. at 357–58 n.23.
274 Brief for the Danns, supra note 18, at 38. The Danns asserted first that an existing statute, 25 U.S.C. § 118 (1983), implicitly defined payment to Indians as final distribution
272 ENVIRONMENTAL AFFAIRS [Vol. 13:241
The Danns’ arguments failed to sway the Court. In a unanimous decision authored by Justice Brennan, the Court held that the cer tification and appropriation of the ICC’s award to a trust fund held for the benefit of the Western Shoshone tribe, constituted “payment” under the Act, and thus discharged all claims and demands involving the Western Shoshone land claim.275 The Court looked to the legis lative purposes behind the Act and concluded that Congress intended to dispose of all Indian claims with finality.276 Congress drafted the Act so that when the ICC filed a report with Congress determining that a claimant is entitled to recover, that report had “the effect of a final judgment,” 277 and this payment of a claim would fully dis charge the United States from further claims and demands involving any matter resolved by the ICC.278 Congress intended to relieve its own burden of responding to particularized Indian petitions with special jurisdictional acts.279 Before the statute was enacted, Con gress debated whether to delete the finality language in the Act, so that Congress would have final authority over claims brought before the ICC.280 This suggestion was ultimately discarded.281 The Court reasoned, therefore, that the lower court’s justification for making payment contingent on Congress’ approval of a final distribution plan, which was to give Congress a final opportunity to review ICC claims on the merits, conflicted with the congressional purpose of alleviating its burden of enacting special jurisdictional statutes.282
The Court further reasoned that the definition of “payment” ap plied by the Ninth Circuit conflicted with the common law usage of
from the trust, not appropriation to the trust. Brief for the Danns, supra note 18, at 39. Second, the Danns argued that the Distribution of Judgment Funds Act provided the Indian claimants in an ICC proceeding with two ways to delay or halt payment after appropriation to the trust. !d. at 40. In the present case a significant number of Western Shoshone people resisted acceptance of a money judgment, causing the Department of the Interior to postpone distribution. ld. As a result, Congress must now pass legislation specifically authorizing a distribution plan for the ICC judgment. !d. Statements by members of Congress indicated that they thought the outcome of the Dann case would have a strong bearing on any action Congress might take to authorize a distribution plan for the Western Shoshone award. !d. at 40-41. Congress had deliberately postponed any action which would affect the final payment. Id. at 41. The Danns argued that by exercising this “pocket veto,” Congress prevented the ICC judgment from precluding their present assertion of aboriginal title. !d. at 46-47.
275 United States v. Dann, 53 U.S.L.W. 4169, 4171 (U.S. Feb. 20, 1985).
276 !d.
277 !d. (quoting 25 U.S.C. § 22a (1983)).
278 53 U.S.L.W. at 4171.
210 !d.
280 !d. (quoting 92 CONG. REC. 5311 (1946)).
281 53 U.S.L.W. at 4172 (quoting H.R. CONF. REP. No. 2693, 79th Cong., 2d Sess. 8 (1946)).
282 53 U.S.L.W. at 4172.
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the word, in which payment may be satisfied if the funds are trans ferred to a trustee or agent of the creditor.283 The Court concluded that, in accordance with a previous case involving payment between the government and Indians,284 the common law definition of “pay ment” should apply when interpreting the Act.285 In the Dann case, then, the government, as debtor, paid the ICC judgment to the government as trustee for the Western Shoshone beneficiaries.286 Thus, payment within the context of the Act had occurred, fully discharging the United States of all claims relating to Western
Shoshone title.287
The Court refused to address the Danns’ claim of individual ab original title rights, as supported by the precedent in Cramer,288 because that issue had not been addressed by the lower courts.289 The Court then remanded the case to the Ninth Circuit.290
2. Analysis of U.S. v. Dann: Due Process Implications
When the Court framed the issue in Dann as whether “payment” had been made within the terms of the Act, it circumvented the constitutional issue regarding the ICC’s procedures. 291 The due pro-
283 !d.
284 !d. (citing Seminole Nation v. United States, 316 U.S. 286, 296 (1942)).
285 I d. at 4172.
286 !d.
287 I d. at 4171.
288 See supra notes 68-74 and accompanying text.
289 !d.
290 !d. In turn, the Ninth Circuit remanded the case to the district court for further pro ceedings concerning the Danns’ assertion that they held unextinguished individual aboriginal title. United States v. Dann, 763 F.2d 379 (9th Cir. 1985). See supra notes 269-73 and accompanying text.
291 See supra notes 266-68 and accompanying text. Refusal to address the constitutional issue may be traced to a traditional judicial reluctance to set aside an agency action when it does not violate the terms of the agency’s statute. J. NOWAK, R. ROTUNDA, & J.N. YOUNG, CONSTITUTIONAL LAW 557 (1983). For example, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counsel, Inc., 435 U.S. 519 (1978), the Court reversed a lower court’s erroneous invalidation of an agency’s rule. !d. at 525. The Court explained:
[a]gencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency action because of a failure to employ procedures beyond those required by the statute. But such circumstances, if they exist, are extremely rare.
!d. at 524. The Court goes on to describe those rare circumstances as “constitutional con
straints or extremely compelling circumstances.” !d. at 543. Despite the Court’s specific holding in Dann, because the Danns face both constitutional constraints and extremely com pelling circumstances, they should be permitted to assert unextinguished aboriginal title as a defense against the government’s claim.
274 ENVIRONMENTAL AFFAIRS [Vol. 13:241
cess clause of the fifth amendment provides that: “[n]o person shall
… be deprived of life, liberty, or property, without due process of law ….”292 In Indian claims cases, the Indians who claimed their
aboriginal title was not extinguished suffered a deprivation of this constitutionally protected right. Such deprivations resulted because often their claims were not even heard by the ICC. The tribal nature of aboriginal title, 293 and the ICC’s permissive claimant standards combined with their restrictive intervenor standards, 294 were to blame for this situation. Thus, one of Congress’ purposes in passing the Act – to grant Indians the procedural due process they had been denied- was frustrated by the inadequacy of the ICC’s forum.
In its report, the House Committee on Indian Affairs expressed
concern that “Indians have been denied free and equal access to the courts,”295 and then reiterated that the Act was “primarily designed to right a continuing wrong to our Indian citizens for which no possible justification can be asserted. “296 Thus, when it stressed the two other congressional purposes for the ICC, the Court in Dann297 overlooked the ICC’s most significant purpose: to grant Indians the procedural due process they had been denied since they had been granted citizenship.
In recognition of the collective nature of aboriginal title, 298 Con gress provided that the ICC would establish very loose requirements for claimants to bring what in essence were class actions.299 A claim
for extinguished aboriginal title before the ICC shared many of the characteristics of a class action suit.300 And, as does the judgment in a class action suit, the ICC’s decision in an Indian claim bound all members of the class.301 A claimant before the ICC, like the com plainant in a class action, held himself out “as representing the legal rights of absent parties. “302 If the claimant lost, the absent, but represented, parties lost rights that they never personally as-
292 U.S. CONST. amend. V.
293 See supra notes 24-83 and accompanying text.
294 See supra notes 137-215 and accompanying text.
295 House Committee on Indian Affairs, supra note 119, at 1349; see supra notes 120-21 and accompanying text.
296 !d. at 1347.
297 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985).
298 See supra notes 60-67 and accompanying text.
299 See supra notes 138-42 and accompanying text.
300 See Butzel, Intervention and Class Actions Before the Agencies and the Courts, 23 AD.
L. REV. 135, 145 (1973) (description of theoretical underpinnings of class action suits).
301 See id.
302 /d. (emphasis omitted).
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serted.303 Courts have been reluctant to entertain class actions on a broad scale because of the potential for wrongfully binding unrepre sented claimants to a judgment. 304 Congress, apparently unaware that the same considerations existed in Indian claim actions, created a forum which heard claims that were exclusively class actions, in form, if not in name.
The Court of Claims addressed this class action analogy in Western Shoshone Legal Defense and Educational Association v. United States:305 “[a]n Indian claim under the Act is unlike a class suit in that there is no necessity that the position of each individual member
of the group be represented; it is only the group claim which need be put forward.”306 In so concluding, the court failed to recognize that constitutional due process necessitates such complete represen tation. To insist upon enforcing a class action type of judgment upon all reputed memb rs of the class, even when those members’ inter ests are in conflict, would result in a violation of procedural due process comparable in nature to the violation disallowed in the land mark case of Hansberry v. Lee.307
In Hansberry, the plaintiffs sought to enjoin the defendants from violating an agreement restricting the use of both parties’ land in
Chicago. 308 The Illinois Supreme Court held that, although the stip ulation proved false, the defendants were bound by the previous judgment because they were members of the class of landowners represented in the earlier suit.309
The United States Supreme Court reversed, and held that the defendants had been deprived of their constitutionally-protected pro cedural due process. 310 The Court reasoned that the several land owning parties purportedly bound by the earlier decision did not constitute a class because the individual members had conflicting
3oa I d.
304 ld.
305 531 F.2d 495 (Ct. Cl. 1976), cert. denied, 429 U.S. 885 (1976).
306 531 F.2d at 504.
307 311 u.s. 32 (1940).
308 I d. at 37. When defendants countered that the agreement, which disallowed the use of
the land by blacks, was invalid because it had not been signed by the requisite percentage of landowners, the plaintiff countered by citing an earlier case as the final determination re garding the agreement’s validity. I d. at 38 (citing Burke v. Kleiman, 277 Ill. App. 519 (1934)). Burke was also a suit to enjoin the violation of a restrictive covenant, in which the class of landowners had been represented by the litigants, and the parties had stipulated that the agreement was valid. ld.
309 I d. at 39-40.
310 I d. at 44.
276 ENVIRONMENTAL AFFAIRS [Vol. 13:241
interests. 311 The Court refused to permit those members of the landowners’ group who sought to enforce the agreement to represent the members who later sought to dispute the validity of the agree ment.312 Similarly, to allow the Temoak band in the Dann313 case to represent all the descendants of the Western Shoshone ancestral group did not afford protection to the Dann band adequate to satisfy the constitutional requirements of due process. The Temoak band had an interest in pursuing the ICC claim and thus receiving a substantial monetary compensation. 314 The Dann band, however, had a conflicting interest in maintaining their ranch;315 and as in Hans berry,316 this canflicting interest was not adequately represented.
Even if the Temoak and Dann bands had substantially the same interests regarding the outcome of the claim before the ICC, the
Temoak band, as an entity separately organized from the Dann band, could not adequately represent the Dann band. In McGhee v. Creek Nation,317 the Court of Claims refused to permit an organized entity of the ancestral Creek Nation to represent all Creek Indians. 318 Even though the organized body was recognized by the Department of the Interior, and it had authority to represent all the members of that body, it did not have the necessary authority to represent the un organized Eastern Creeks.319 Therefore, the Court ruled that the Eastern Creeks were “entitled to be represented separately by rep resentatives of their own choosing.”320
This same reasoning is applicable to the claims in the Dann case. There are two distinctly organized bodies, and the Temoak band had
no authority to represent the Dann band before the ICC. The De partment of the Interior’s recognition of the Temoak band321 merely
311 Id.
312 I d. The Court held that the “selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires.” I d. at 45.
313 53 U.S.L.W. 4169 (U.S. Feb. 20, 1985).
314 See supra notes 224-29 and accompanying text.
315 See supra notes 229-30 and accompanying text.
316 311 U.S. 321 (1940); see supra notes 308-12 and accompanying text.
317 122 Ct. Cl. 380 (1952); see supra notes 165-76 and accompanying text.
318 122 Ct. Cl. at 394.
319 I d. (“The Creek Nation in Oklahoma has only been recognized by the Secretary of Interior as having authority to represent the Creek Indians in Oklahoma. It has never been recognized as having authority to represent the unorganized but identifiable group of Creeks east of the Mississippi, and therefore is not entitled under the Indian Claims Commission Act to the exclusive right of representing such Eastern Creeks.”)
320 Id. at 394-95.
321 See supra notes 221-23 and accompanying text.
1986] INDIAN CLAIMS COMMISSION 277
authorized that band to represent its own membership. Thus, the Danns’ constitutional argument before the Court, that the ICC did not adequately verify that the Temoak band represented all the interested parties, should have succeeded. 322 Neither the common law doctrine of aboriginal title, nor the statutorily-created ICC, were adequate to protect procedural due process for all tribal descendants eligible to participate in aboriginal title claims before the ICC.
3. Alternative Remedies
As a result of the Court’s decision in United States v. Dann,323 Indians like the Danns, who continue to live on aboriginal title land, are estopped from proving in collateral litigation that title is not extinguished when a prior ICC judgment allegedly compensated them for their land. Indians in the Danns’ position, however, may pursue several alternatives to obtain relief from the ICC judgment. The two best alternatives involve petitioning to Congress for sta tutory relief, or seeking appellate review of the ICC’s decision by the Court of Claims.
The Danns could petition Congress to enact a statute providing
for review by the Claims Court as to the issue whether extinguish ment could be stipulated before the ICC. Such a statute would have
to disregard the principles of res judicata. Congress enacted a similar
statute in 1978, which authorized the Court of Claims to review the
merits of the Sioux Indians’ Black Hills claim.324 Such a statute would
322 Another procedural due process violation could be charged against the ICC’s statute itself. The Act denied parties whose rights were affected the opportunity to protect their interests, by delegating unconstitutional authority to the Secretary of Interior to determine who may appear before the ICC.
323 See supra notes 275-90 and accompanying text.
324 25 U.S.C. § 70s(b) (1976). That statute, which amended the Indian Claims Commission Act, states:
Notwithstanding any other provision of law, upon application by the claimants within thirty days from March 13, 1978, the Court of Claims shall review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the Indian Claims Commission entered February 15, 1974, adjudging that the Act of February 28, 1877 (19 Stat. 254), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. In conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of, a fifth amendment taking and shall determine that issue de novo.
!d. Pursuant to this statute, the Court of Claims affirmed the ICC’s holding that the congres
sional act of 1877 effected a taking, compensable by the value at the date of taking plus interest. Sioux Nation of Indians v. United States, 601 F.2d 1157, 1159 (Ct. Cl. 1979). In United States v. Sioux Nation of Indians, 448 U.S. 371, 407 (1980), the Court upheld the
278 ENVIRONMENTAL AFFAIRS [Vol. 13:241
allow the introduction of additional evidence, and permit the repre sentation of all the competing interests involved before the Claims Court. In the subsequent review, the Danns could introduce evidence refuting the stipulated extinguishment.
A second possible avenue for alternative relief from an ICC judg
ment is the filing of a motion to reopen the case in the Claims Court, “an independent motion,” pursuant to Federal Rules of Civil Pro
cedure 152(b).325 The Federal Rule provides:
[t]his rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.326
To entertain such an independent action to reconsider a decision, the court must have equity jurisdiction, and if there had been no previous judgment, must have subject matter jurisdiction. 327
Authority for the filing of such an independent action derives from
the decision in United States v. Andrade. 328 In Andrade, the Court
of Claims assumed, without deciding, that it had jurisdiction to entertain an independent action to reconsider an ICC judgment. 329
The court reasoned that it possessed the necessary equity jurisdic tion to hear an independent action because it has the authority to reopen its own judgment. Therefore, since the Indian Claims Com mission Act provides that an ICC judgment has the same effect as a judgment of the Court of Claims, it should similarly be authorized to reopen an ICC judgment. 330 The court also ruled that it possessed original subject matter jurisdiction over a claim to reopen an ICC proceeding because the Act provides that the Court of Claims can entertain Indian claims accruing after 1946.331
The court dismissed the claim in Andrade,332 however, because the plaintiffs did not carry their burden of proving that the ICC’s
statute’s constitutionality against a charge that it impennissibly violated the doctrine of separation of powers. /d. at 407.
325 FED. R. Crv. P. 152(b).
326 ld., cited in Andrade v. United States, 485 F.2d 660, 663 (Ct. Cl. 1973) (per curiam),
cert. denied sub nom Pitt River v. United States, 419 U.S. 831 (1974).
327 485 F.2d at 663-64.
328 485 F.2d 660 (Ct. Cl. 1973).
329 ld. at 663.
330 /d. at 664 (citing 25 U.S. C. § 70u (1976)).
331 485 F.2d at 664 (citing 28 U.S. C. § 1505 (1982)). (Any action which would subject a judgment of the ICC to reconsideration must occur, by definition, after the date the ICC was founded.)
332 485 F.2d at 664-65.
1986] INDIAN CLAIMS COMMISSION 279
judgment was manifestly unconscionable -a burden that was heav ier because the plaintiffs could have brought suit eight years earlier. In a situation like the Danns’ case, however, their prior attempts to intervene, 333 and the due process component 334 of their claim, should meet this stringent proof requirement and allow their claim to be heard. 335
V. CONCLUSION
Decisions by the Indian Claims Commission in aboriginal title extinguishment cases may have violated the due process rights of individual Indians still living on aboriginal lands. However, the Court’s conflicting pronouncements on the question of the scope of
333 See supra notes 230-36 and accompanying text.
334 See supra notes 266-68 and accompanying text.
335 Other available alternatives seem unlikely to succeed. First, disputants could petition Congress for an act declaring their aboriginal title unextinguished despite the ICC judgment, or for a grant of the same parcel of land to which aboriginal title had been declared extin guished. Congressional approval is unlikely, however, because either proposal may violate the separation of powers doctrine. Andrade, 485 F.2d at 663.
Second, the Danns could seek an executive initiative to regain their ancestral land, either formally with an executive order, or informally by provoking executive lobbying in Congress. Two Indian groups successfully used both these alternatives during the Nixon Administration. Note, supra note 23, at 393. In 1972, Nixon signed an executive order providing for the return to the Yakima Indians of Mount Adams, a sacred mountain which had been confiscated and declared public land. Exec. Order No. 11,670. The Nixon Administration also pushed legis lation through Congress to return the Blue Lake shrine to the Taos Pueblo Indians, over the objections of the Senate Interior & Insular Affairs Committee. The Administration did not set a precedent for the return of aboriginal lands, however, because it stressed that it was acting out of respect for Indian religious beliefs. 116 CONG. REC. 23131, 23133 (1970). More recent appeals to the executive branch have failed. 1978 Hearings, supra note 181, at 503-15 (appeals to Vice President and Secretary of Interior). Given such limited past success with executive intervention, and more recent failure, an appeal to the current administration seems unlikely to succeed.
Third, Indians disputing an ICC judgment could assert adverse possession as a defense in
an action brought against them by the government. The Quiet Title Act, 28 U.S.C. § 2409a (1972), which enables citizens to bring suits to quiet title against the government, clearly states that sovereign immunity is not waived to permit suits against the government based on adverse possession. Id. at § 2409a(g). Despite this limitation, Indians may claim adverse possession as a defense in a suit brought by the government, such as the claim against the Danns. However, in such a case the requisite adverseness of possession may be disqualified by the government’s acquiescence in knowingly permitting the Indians to continue occupying the land. See also Turtle Mountain Band, 490 F.2d at 942 (“Defendant [government] invokes the traditional doctrine that land interests cannot normally be acquired against the sovereign by adverse possession or lapse of time. But that very same principle was applied by the predecessor sovereigns, and if it were to be allowed to affect Indian title (in the way the Government seeks) no aboriginal title could have been obtained at any time after assumption of sovereignty on this continent by the first European powers. Of course, this has never been the rule for Indian ownership.” (citations omitted).
280 ENVIRONMENTAL AFFAIRS [Vol. 13:241
individual rights in the area of aboriginal title lands makes this issue unclear. Since the Court refused to recognize a violation of the Dann band’s due process rights in United States v. Dann, individual In dians who maintain that their aboriginal title to lands is not yet extinguished must pursue other avenues to vindicate their title rights. This controversy will continue until the last acre of aboriginal title land in the United States is converted into fee simple title.
A Nawawi Foundation Series
Turks, Moors, & Moriscos in Early America
Sir Francis Drake’s Liberated Galley Slaves & the Lost Colony of Roanoke
This article is the first installment of a new Nawawi series on Roots of Islam in America. The series will attempt to bring to light the rich and still largely unexplored history of Muslims in the New World during the pre-modern period. The presence of Muslim peoples throughout the history of America attests to the fact that they have played a noteworthy role in the American experience. Our knowledge of this background helps transform the dominant historical account from an ideological “meta-historical narrative” to a more balanced record of our richly shared past. It fosters dynamic paradigms and cognitive frames of how we perceive our past, opens up new fields of research, and helps Muslims and non-Muslims in America today discover common elements that impart a richer definition of our communal identity based on a more honest and comprehensive vision of our shared past.
Fact is sometimes stranger than fiction. One very
unusual and little-known event took place at the dawn of American colonial history in 1586. That year, Sir Francis Drake (1540-1596), the famous English
seaman, discoverer, and privateer,1 brought at least two hundred Muslims (identified as Turks and Moors,2 which likely included Moriscos3) to the newly established English colony of Roanoke on the coast of present-day North Carolina. The Roanoke settlement was England’s first American colony and constitutes the first chapter of English colonial history in the New World and what ultimately
became the history of the United States. Only a short time before reaching Roanoke, Drake’s fleet of some thirty ships had liberated these Muslims from Spanish colonial forces in the Caribbean. They had been condemned to hard labor as galley slaves4. It is not clear what Drake intended to do with the liberated slaves. The Spanish feared he would conscript them as reinforcements in the Roanoke colony, which the Spanish knew of vaguely through intelligence reports but had not been able to locate and destroy. Historical records indicate that Drake had promised to return the liberated galley slaves to the Muslim world, and the English government did ultimately repatriate about one hundred of them to Ottoman realms.5 Given that the original number of liberated galley slaves was reported to be over twice that count, it is reasonable to ask what happened to the others. Did they simply perish? Did they choose to remain behind on the shores of present-day North Carolina? Did Drake maroon them there against their will? Did he take them all back to England? Were they, in fact, all repatriated to the Muslim world? Since the Roanoke narrative is not complete without the unusual story of Drake’s liberated Muslim galley slaves, the colony’s history also marks the first known chapter of Muslim presence in British America and, later, the United States.
It so happened that the Roanoke colony failed after a few years, its brief existence lasting from 1585 to 1590. The colony was initially founded as a privateering base to attack Spanish shipping in the Caribbean and was part of a mounting sea war waged between England and the Spanish Empire, one that culminated in the Spanish Armada’s unsuccessful attack on England in 1588. As
a colony, Roanoke failed mainly because it was cut off from vital supplies from England between 1587 and 1590 (its crucial last three years), given the Armada’s
impending attack on England and the continued threat of a second Spanish naval attack on England for years afterwards. When the English finally did return to
Roanoke in 1590, they found none of its former settlers.
They saw no evidence of violence, but they did infer from signs the settlers had intentionally left behind that they had peacefully relocated and probably settled among the various Native American tribes in the region.6 Because the fate of Roanoke’s last settlers remains unknown, it is often referred to in American history as the “lost colony.”7 Taken in isolation, the episode of Drake’s liberated
Muslim galley slaves at Roanoke seems to be just another one of history’s many remarkable curiosities. To be properly understood, however, the entire event must
be placed within the global context of the era, in which English-Muslim relations were generally favorable. This broader global reality explains
why Drake took such interest in his liberated Muslim captives, commanded his crew
to treat them hospitably, and apparently looked upon them as potential allies in
England’s struggle with Spain.
In general, the early presence of Muslims in the New World must be understood
from a global perspective, as Hernán Taboada rightly notes in his study of Spanish
preoccupations with Islam and Muslims in the Americas during the formative sixteenth century. Taboada laments the inability of Western historians to grasp the central importance of global Islamic civilization in the early history of the American colonies, which he attributes to the fact that few scholars of American history have adequate exposure to Islamic history. In addition, he notes the lack of documentation, the deficiency of adequate historiographical methods, and the persistence of a myopic Eurocentric focus in Western historical writing, which have all contributed to the inability of historians to articulate their studies in a broader global context.
The Spanish of the sixteenth century were not oblivious to the global link between Drake’s liberation of the Muslim galley slaves in the Caribbean and England’s ties with the Muslim world abroad. Interestingly, Spanish observers of the time appear more aware of the broader context of Drake’s raids than many contemporary Western
historians. An escaped Spanish seaman that Drake had held as prisoner was quick to observe in an official report to the Spanish crown on Drake’s Caribbean raids that Queen Elizabeth I “had her ambassador with the Turk [the Ottoman sultan], to whom she had sent great gifts.”10 The same Spanish seaman contended that Drake himself
had personal plans to take refuge among the Muslims of North Africa in the event that the anticipated attack of the Spanish Armada would be victorious.
It is not a coincidence that Spanish reports about Drake consistently refer to him and other European privateers who attacked Spanish shipping as “Corsairs” (the term for Muslim privateers).11 At the time, the Corsairs of North Africa and Morocco were at the peak of their power. Drake, his close friend Sir Walter Raleigh, who was the moving force behind the Roanoke colony, and many other English privateers knew the Corsairs well; they had amicable relations with them and sometimes even joined their fleets.12 Contemporary Spanish reports were not completely mistaken in their view that there was a certain affinity between English and European privateers and the formidable Corsairs, whom the Spanish continually battled on the high seas or encountered in privateering raids. In fact, the Corsairs were most probably one of the sources of the Turkish and Moorish prisoners that the Spanish had condemned to hard labor in their Caribbean war galleys.
Recent historical studies have brought to light the fact that there were significant numbers of Muslims in the New World during the colonial period, who lived a generally clandestine existence as slaves and occasionally free laborers. Most persons of Muslim background in the American colonies belonged to one of two groups:
enslaved Africans, generally from West Africa (about ten to twenty percent of which had Islamic roots), and the Moriscos of Spain and Portugal, who had been forcibly converted to Christianity in the sixteenth century.13 The two groups existed side-byside in Spanish and Portuguese colonies; in the English colonies, however, persons of Moorish or Moriscan background were rare, and Africans constituted by far the larger and more visible of the two populations.
Drake’s liberation of the Muslim galley slaves shows that these other Muslim peoples of diverse backgrounds were also present in the Spanish colonies and constituted an unexpected element of Muslim presence in colonial America. There were undoubtedly other war galleys in the Spanish colonial fleet like those that Drake encountered in Cartagena. Such ships were essential to Spanish naval power because they could maneuver more effectively in battle than sail-powered ships and made lethal use of the heavy artillery mounted upon them. Turks and North African Moors taken captive in war were likely to end up as galley slaves so it is not surprising that Drake chanced upon hundreds of them in the Caribbean, nor is it unlikely that there were many similar Muslim galley slaves in the Spanish colonies.
But slavery in the galleys was also the common fate of thousands of Spanish and Portuguese Moriscos who were convicted of “heresy” (usually clandestine Islamic practices) before the tribunals of the Inquisition, and some of the “Moors” that Drake liberated were probably Moriscos (Iberian Moors) who had run afoul of the Inquisition.
We have no conclusive evidence that any of Drake’s liberated Turks, Moors, and possibly Moriscos remained behind at Roanoke and established roots in America. But the mysterious Melungeons of Appalachia and their cousins, the Lumbees of North Carolina, trace their roots to Roanoke and probably have the greatest claim to Drake’s legacy. Both Melungeons and Lumbees antedate British settlement in America and make up unique populations that are distinctive from Whites, Blacks, and Native Americans. For centuries, Melungeons and Lumbees have proudly identified themselves as “Portuguese” and have been widely regarded
to have Moorish roots.
Our questions about what ultimately became of Drake’s unusual assemblage of rescued “Turks,” “Moors,” and other liberated slaves remain largely unanswered and may likely persist as one of the unsolved mysteries surrounding the “lost colony” of Roanoke.16 What is especially important about Drake’s story is its global context, which not only accurately reflects the hospitable relations that existed between England and the Muslim world but also the ubiquitous presence of Islam as a world civilization. In addition, the episode draws our attention to the importance of looking for unexpected Muslim roots in America, such as those of the liberated galley slaves, whose ethnic and cultural backgrounds were extremely diverse and wide ranging, reflecting the cosmopolitan reality of the time. We need to see the history of the Americas as an important piece of a larger global puzzle that involved not just Western Europeans but influxes of various peoples from diverse and sometimes unexpected backgrounds. Muslims have always been part of that puzzle. They have had a presence in the Americas as long as Western Europeans, even if their numbers were smaller and their roles less conspicuous.
Knowledge begins with correct usage of terminology. It is impossible to evaluate accurately the historical references to “Turks” and “Moors” in the records of Drake’s liberated galley slaves without clarifying what these terms meant in the sixteenth century. Both words had broad and narrow usages, so it is necessary to keep all possible meanings in mind. Most contemporary historians who have written on Drake’s liberated galley slaves have treated the word “Moor” too narrowly as exclusively referring to North African “Moors” without including “Moriscos,” the former Moors of Spain and Portugal. Failure to understand the broader implications of the word “Moors” has often rendered the historical narrative confusing and not truly reflective of the potentially very diverse origins of the groups involved.
In the sixteenth century, the terms “Turk” and “Moor” in their broadest sense were used as generic references to Muslims, regardless of national, cultural, or ethnic
backgrounds. In the Iberian context, “Moor” was still the common generic word for Muslim, and that broad usage still applies to the Spanish records of Drake’s
liberated galley slaves. Since the Middle Ages, Spanish legal codes had defined Muslims as “Moors.” In the legal code of King Alfonso X of Castile (1221-1284), “Moor” referred to “a sort of people who believe that Mu^ammad was the prophet or messenger of God.”17 For centuries during the European crusading movement, the conquered Muslim populations of formerly Moorish Spain and Portugal, who continued to live under Christian rule, were still regarded as Moors and lived in “Moorish quarters” (morerías).18 When the Spanish colonized the Philippines in the
sixteenth century, they referred to the large indigenous Muslim populations they encountered there as “Moors;” their protracted wars to subdue them were called the “Moro [Moor] wars.”19
The words “Turks” and “Moors” could also be used more narrowly to refer to various national and political affiliations or cultural and ethnic identities. When used in this more specific sense, the word “Turk” had an essentially national connotation referring to the political subjects of the Ottoman Turkish Empire,
whose boundaries at the time took in the entire Balkans, extending as far north as Austria, and embraced most of the Middle East. Even then, however, “Turk” did not exclusively refer to cultural or ethnic Turks but applied to other Muslim populations in the vast empire, including Arabs and Kurds, who were neither culturally nor ethnically Turkish.
As we will see, one of the curious aspects of the English records of Drake’s
liberated galley slaves is that they also refer to “Greeks” among the “Turks.” These Greeks would also have come from the Ottoman Empire, which, at the time,
comprised all the Greek islands and landed territories of mainland Greece and the large Greek-speaking populations of Anatolia; it is not possible to determine from the reference to “Greeks” if they were Orthodox Christians, Muslim converts, or
Turkic populations that had settled among the ethnic Greeks. The reference to “Greeks” in conjunction with “Turks,” however, makes it clear that the “Turks”
referred to in the records were Ottoman subjects and not merely a generic reference to Muslims, since the two populations were extensively intermixed in the Ottoman Empire.
Although there was no single sixteenth-century “Moorish” empire, there
were a number of “Moorish” political entities; “Moor” in its narrower sense, unlike “Turk,” did not signify any given state affiliation. “Moor” might refer to the Muslims of the Kingdom of Morocco or any of the North African regencies of Algeria, Tunisia, or Libya. The word was equally applicable in the Iberian context to the Moriscos, the former Moors of Spain and Portugal.20
The Inquisition forced all conquered “Moorish” populations to convert to Catholicism during the first half of the sixteenth century; these populations gradually became known as “Moriscos” (literally, “little Moors”). Outwardly, Moriscos were Christian. They were given Spanish and Portuguese baptismal names, spoke the Romance languages of their respective regions, and were culturally and ethnically Iberian. Moriscos were kept under the Inquisition’s constant surveillance to ensure that they kept up Christian appearances and did not practice Islam openly or secretly. The “converted” Moors of Spain and Portugal, however, were rarely content with their forced conversion. Toward the close of the century in 1582, only a few years before the Roanoke project began, Philip II—then king of the united realms of Spain and Portugal—concluded that all efforts to disperse and assimilate the converted Muslims of Iberia had been a failure.21
The word “Moriscos” does not occur in any of the original historical records related to Drake’s liberation of the Caribbean galley slaves. At the time, “Morisco” was still a new word in Spanish and Portuguese usage and was only beginning to be popularized. The neologism “Morisco” was originally pejorative. It gradually became common usage in Spanish and Portuguese and replaced earlier expressions such as “converts,” “new Christians,” and “converted Moors.”22 “Morisco” became popular in northern Spain around 1550, but for many years after that date, Spanish Inquisitors in the same northern regions tended to refer to their formerly Iberian Muslim defendants as “convert Moors” and not as “Moriscos.”23
“Little Moors” (Moriscos) could also be referred to as “Moors.” Portuguese Moriscos preferred to be called “Moors” (Mouros),24 and this was presumably the case with many Spanish Moriscos as well. The word “Moor” seems to have been especially applicable to Moriscos who were found guilty of the “heresy” of reversion to Islam, no doubt because the word “Moor” never lost its generic meaning as “Muslim.” In 1560, the Inquisition of Peru executed Lope de la Pena and his cohort Luis Solano for practicing and spreading Islam. Official records refer to the former as “the Moor” Lope de la Pena, although he was almost certainly a forcibly “converted” Moor (i.e., a Morisco), as his Christian name indicates, since Moriscos were given baptismal names.25
Although the word “Morisco” does not occur in the Spanish or English records of Drake’s liberation of the galley slaves, the word’s absence is no indication that at least some of the “Moors” he liberated were, in fact, “converted” Iberian Moors. It would be mistaken to expect the word “Morisco” to occur in these sixteenth-century records, since the word
was not an official technical term and was still in the process of being popularized in the Spanish vernacular. The term “Moor” in these records could equally apply to “converted” Iberian Moors, especially since “heretical” Moriscos were frequently condemned to the galleys. In seeking to determine if any of Drake’s liberated “Moors” were actually “converted” Spanish or Portuguese “Moors,” it is necessary to focus on the descriptions given them in the historical records and the circumstances associated with them. Only then can the ambiguous label applied to them be more accurately
understood.
Moriscos were frequently accused of “heresy” on suspicion of open or clandestine adherence to Islamic faith and practice. A mere slip of the tongue or neglect of Christian worship could lead to a Morisco being summoned before the tribunals. Inquisitors paid close attention to “signs” of heresy, such as facing Mecca in prayer or performing ritual ablution or washings.26
The Inquisition forced all conquered “Moorish” populations to convert to Catholicism during the first half of the sixteenth century; these populations gradually became known as “Moriscos” (literally, “little Moors”).
“Heretical” Moriscos were generally condemned to death by burning at the stake; the Church euphemistically called these executions “acts of faith” (autos de fé). Among themselves, the Moriscos referred to the Inquisitors as “the Burners” (al-¤arr¥q‰n); they warned their children not to reveal that they were Muslims because “there is an Inquisition, and they will burn you” (porque había Inquisición y [te] quemarían). Moriscos often looked upon the Church as an enemy armed with arsenals of torture, galleys, and fire. They knew well that the Inquisition would readily seize their property and take away their children at the slightest suspicion of heresy.27 In rare cases, the Inquisition allowed Moriscos convicted of capital acts of “heresy” to exchange their death sentences for life in the galleys. Moriscos found guilty of lesser acts of “heresy,” which did not warrant death in their Inquisitors’ eyes, were also usually condemned to perpetual service as galley slaves.28 The
practice of circumcision, for example, was generally regarded as an act of lesser “heresy.” King Philip II ordered the Inquisition to sentence to the galleys without question anyone found guilty of performing circumcisions.
Labor as a Spanish galley slave was difficult to survive; few probably lasted more than five years. A galley slave’s only hope of survival was to escape. When Spanish galleys were attacked at sea by the Turks or the Corsairs, the galley slaves often sought to free themselves from their chains and repeatedly rose up against their Spanish masters—as they did during Drake’s Caribbean raids—and sought their salvation among their rescuers.
Moriscos were known for their deep and lasting emotional attachment to Islam and their inclination to express personal and cultural attachment to the faith whenever it was safe for them to do so.31 Many African Muslims who were enslaved in America shared a similar outlook, as indicated by their biographies.32 From the beginning of the colonial period, both Spain and the Catholic Church perceived Islam as a threat to the monolithic religious and cultural hegemony they intended to foist upon the New World. A Spanish royal decree pertaining to settlement of the New World declared in 1543: “In a new land like this, one where faith is only recently being sowed, it is necessary not to allow to spread there the sect of Mu^ammad or any other.”33
Spanish imperial authorities sought to restrict emigration to the New World to “old” Catholics, excluding “new” converts of Morisco and Marrano (i.e., Jewish) backgrounds. To have ready access to the New World, one was technically required to prove oneself the child or grandchild of Christians who had never been in trouble with the Inquisition.34 This policy was difficult to enforce upon Moriscos because they constituted the primary work force of Spain and were essential for much of the manufacturing, production, and building that the New World demanded.35 The art and architecture of the Spanish American colonies in the sixteenth and seventeenth centuries is extensively Morisco in style and constitutes standing proof that Morisco builders were present in significant numbers and active in the New World, despite the official policies that were meant to exclude them.
In the sixteenth century, Cardinal Jiménez de Cisneros, Grand Inquisitor of Spain, who gave the Spanish Inquisition its definitive form and was called the “missionary to the Moors,”37 complained that Islam was being openly practiced in the Americas, especially by Moriscos.38 Official measures to eliminate the Moriscos from the Americas never seem to have been fully effective. With its vast expanses, mobility, opportunities, inexhaustible demand for labor, and greater social freedom, the New World was attractive to the oppressed populations of Spain and Portugal.
Américo Castro, the noted cultural historian of Spain, contends that many Moriscos and Marranos sought out the New World as a place to find the freedom and peace they could no longer find at home.
At the time of Roanoke’s founding, the attitudes of the English toward the Muslims of the Ottoman Empire, Morocco, and North Africa contrasted sharply with those of the Spanish. In general, the English had become open to the Muslim world and had relatively frequent contact with it. Moreover, in the wake of the newly begun Protestant Reformation, English and other European Protestants looked upon the Ottoman Turks and the Muslims of Morocco and North Africa along Spain’s southern flank as valuable potential allies against the encroachments of the Spanish Empire, the Counter Reformation Papacy, and the Inquisition. The English maintained extensive commercial, diplomatic, and social connections to the Ottoman Turks and the Moroccans of North Africa. Nabil Matar states in his pioneering work on this subject: No other non-Christian people interacted more widely with Britons than the Muslims of the Ottoman Empire, the Eastern Mediterranean, and the North African regencies of Tunisia, Algeria, and Libya, along with Morocco (which was not under Ottoman domination). These Muslims . . . represented the most widely visible non-Christian people on English soil in this period—more so than the Jews
and the American Indians, the chief Others in British Renaissance history. Matar notes that during this period Turks and Moroccans, by the thousands, visited and traded in English and Welsh ports. Muslim ambassadors and emissaries dazzled London society with their charm, exotic foods, and Arabian horses.
Muslims and Englishmen ate at the same tables in London inns and together admired processions of elegant horse-drawn Ottoman carriages. British ships transported Muslims to the pilgrimage in Mecca and protected them from the depredations of pirates. Britons even fought in Muslim armies and joined the Corsairs.
British settlement in the New World got off to a slow and difficult start. On the other hand, there had already been significant British settlement in the Muslim world during the same period. An English observer noted in 1577 that “the wise and better-minded” of English men and women were leaving England to live in other lands such as France, Germany, and North Africa.42 Muslim societies were open to immigration from Christian lands. In the eyes of underprivileged Europeans, such Muslim societies were meritocracies when compared with the severe restrictions based on birth that confronted them in European societies, where it was difficult to advance beyond the class into which one was born.43 Attraction to the Muslim world was not unique to the British; Western European émigrés living in Algiers during the early seventeenth century were numerous and influential. Even when heavier English migration to North America began in the late 1620s, Britons living in Moorish North Africa and elsewhere in the Muslim Mediterranean continued to outnumber their cousins in the American colonies for years. As noted earlier, an official Spanish deposition—taken in Havana after Drake’s Caribbean raids—notes that Queen Elizabeth I (1533-1603) “had her ambassador with the Turk, to whom she had sent great gifts.”45 This report reflects the state of English-Muslim relations at the time of the founding of the Roanoke colony. Queen Elizabeth carefully cultivated diplomatic ties with both the Turkish and Moroccan rulers of the period and was the first English monarch “to cooperate openly with Muslims, and allow her subjects to trade and interact with them without being liable to prosecution for dealing with ‘infidels.’”46 Queen Elizabeth understood well the strategic and commercial advantages that good diplomatic relations with Muslim powers could bring, and she received their emissaries in London graciously. At times, the Queen even dressed in a Turkish wardrobe, which she had directed her ambassador in Istanbul to procure for her. Her father, King Henry VIII, had also, on occasion, worn “Oriental” attire to receive Muslim guests.
Queen Elizabeth’s seemingly liberal attitude toward Al-Man|‰r and Queen Elizabeth conducted an extensive correspondence, which lasted from at least 1580—two years after he mounted the throne—until their deaths, which both occurred in the year 1603.
Muslims met with the approval of the Ottoman court, and England’s initiative to repatriate the “Turks” whom Drake liberated in the Caribbean was consciously part of England’s overall politics of rapprochement. The queen’s Privy Council48 was anxious to repatriate the Muslims in hopes that the act would benefit the English Levant Company, which was trading in Turkey. The council expected that its agents would gain “greater favor and liberties” with the Ottomans, possibly securing the release of certain Turkish-held English captives.49 The English provided new clothing for Drake’s liberated “Turks” so that they could be given a proper presentation to the Ottomans50 and were confident that the rewards they were likely to reap from the Ottomans would more than repay all costs, including the transportation of Drake’s “Turks” to Istanbul.51 En route to Turkey, the English encountered a Muslim judge (q¥\Ï) from Palestine—then an Ottoman realm—who was amazed to hear the story of the freed Muslim prisoners and marveled greatly at both Queen Elizabeth’s goodness in doing such an act and in her power as a woman to see it implemented.
Some years later in 1594, Safiyya Baffo, an Ottoman princess and Venetian convert to Islam who had some influence over Turkish foreign policy, wrote a letter to Queen Elizabeth, whom she addressed as “chosen among those which triumph under the standard of Jesus Christ.” Baffo told Elizabeth of the great hopes her wise policies and Protestant faith had aroused in Muslim hearts. Morocco was equally important in Queen Elizabeth’s eyes; she fostered good ties with the Moroccans as assiduously as she did with the Turks. The Queen maintained an especially close relationship with Morocco’s king, A^mad al-Manal-DhahabÏ (“the Golden”),54 who was an astute diplomat himself and had intimate knowledge of the Christian European world. The relationship appears to have
approached sincere friendship.
Al-Man and Queen Elizabeth conducted an extensive correspondence, which lasted from at least 1580—two years after he mounted the throne—until their deaths, which both occurred in the year 1603.55 He was in correspondence with the Queen at the time of the founding of the Roanoke colony and shared her desire to check Spanish power in the Caribbean. In 1603, al-Man|‰r made the extraordinary proposal that Morocco and England combine forces, expel the Spaniards from the Caribbean, take joint possession of the Spanish dominions in the New World, and “by the help of God…join it to our estate and yours.” Al-Man|‰r’s proposal was never implemented.56 It does reflect, however, the frankness and sense of political potential that marked English-Moroccan relations at the time. This dynamic vision of cooperation is reflected in Drake’s attitude toward the Muslim galley slaves he liberated en route to Roanoke.
Good relations with Morocco were critical for English shipping to the Americas during the early colonial period. A “Renaissance triangle” ran between England, Morocco, and the Americas. Preservation of the so-called triangle was crucial to English-Muslim relations in the days of Queen Elizabeth, because the success of British navigation of the western Atlantic depended upon it. Under other circumstances, the British would have used the Canary and Cape Verde Islands to cross the Atlantic, but those islands were inhospitable because they were under Spanish and Portuguese control respectively. In place of these islands, the British forged the Renaissance triangle with Morocco, which remained in use during the reigns of Queen Elizabeth and subsequent English monarchs. During the time of Roanoke’s founding and for years afterward, the triangle continued to be the most attractive and lucrative sea-lane available for British traders, travelers, emigrants, adventurers, privateers, and pirates. Sir Francis Drake and Sir Walter Raleigh knew the Renaissance triangle well and made use of it.
The Roanoke colony belongs, of course, to the time of the Renaissance triangle, the reign of Queen Elizabeth I (1558-1603), and the age of the great English poet and playwright William Shakes eare (1564-1616). Shakespeare’s masterpiece The Tempest, although written several years after Roanoke’s failure, reflected the contemporary English fascination with the New World across the Atlantic, which had made the idea of the Roanoke colony appealing to the English and continued to lure them to new explorations and discoveries.
Queen Elizabeth commissioned Sir Walter Raleigh (1552-1618), the English courtier, soldier, and explorer, to found the colony, giving the project her full support. For the Queen, Roanoke constituted a bold and carefully determined political move. By establishing an English foothold on America’s Atlantic coast, she intended to assert England’s growing power as an emerging nation and its will to directly challenge Spain’s claim to exclusive rights to colonize the New World. In 1580, five years before the first settlement in Roanoke, Philip II, emperor of Spain, took power over the Portuguese throne, uniting Spain and Portugal as a single kingdom. Spain would continue to rule Portugal for the next sixty years.
Thus, during the period of the Roanoke colony and for a long time afterward, Portugal belonged to the kingdom of Spain, giving Spain the claim to unique and exclusive rights to colonize all parts of the Americas, including Portuguese Brazil.
Spain employed its extensive naval and military might to ensure that no European rivals established competing colonies in the New World. The “Invincible” Spanish Armada of 1588 was an expression of the awesome power of the united Spanish Empire, and the Spanish outpost at St. Augustine in Florida was established with the express purpose of policing the North American coastline and preventing the establishment there of “illegal” non-Spanish colonies.
After its union with Portugal, Spain had come to appear in European eyes as the new Rome. It was now at the height of its wealth and power as one of the greatest global powers in history, stretching from the Philippine Islands in the western Pacific to the American continents in the distant Atlantic. It was an empire so vast that the sun never set upon it. Spain was the champion of Roman Catholicism and the Counter Reformation. It was also the primary upholder and political beneficiary of the Inquisition, which served the Spanish state as a powerful organization of central and domestic intelligence, fostered ideological and cultural hegemony, and buttressed Spain’s political unity and foreign policy. Spain’s power on land and sea did not constitute a political threat to England and Western Europe alone but stood in direct ideological opposition to the Protestant Reformation, which had begun in the early sixteenth century and provided nations like England with the religious and ideological underpinnings of their newly emergent states.
Around the time of the foundation of the Roanoke colony, united Spain and
Portugal constituted the most powerful nation of Western Europe. Even before their union in 1580, Spain and Portugal had prevailed as masters of the Western Atlantic Ocean and had claimed and enforced their exclusive right to colonize the Americas, which the Pope had officially endorsed in the Treaty of Tordesillas in 1494. In the treaty, the Pope granted Portugal the unique right to colonize Brazil, while all other lands falling west of Brazil (namely, the remainder of what is now North, South, and Central America and the Caribbean) were to be a permanent monopoly of the crown of Spain. When the Roanoke colony was founded, the Spanish regarded the new English colony as a direct legal and political encroachment on their exclusive colonial domain. Early Colonial Virginia including Roanoke and present-day North Carolina.
By enforcing its unique right to colonize the Americas, the Spanish Empire was determined to extend its political power and keep the New World an exclusive domain for itself and the Roman Catholic Church. In addition to this ideological agenda, however, Spain was fundamentally concerned with protecting its wealthy fleets of treasure ships, laden with silver, gold, and other riches, which regularly made their way out of the Gulf of Mexico and Caribbean Sea through the treacherous narrows of the Bahaman Channel on their way back to Spain. The treasures of these ships lured pirates and privateers from near and far and were constantly in danger of attack.
Spain rightfully feared that any non-Spanish colony established on North America’s Atlantic coastline would serve as a privateering base to attack Spanish shipping. This was, in fact, the basic purpose of the Roanoke colony.61 When Spain learned of the Roanoke project, its primary motive for seeking to locate and destroy the colony was to prevent it from becoming a privateering base for the English. Due to the unusual turn of historical circumstances, however, the Roanoke colony disbanded on its own accord before the Spanish could discover its location. Around the time of Roanoke’s founding, Queen Elizabeth was constantly sending forth swarms of English privateers to attack the Spanish treasure fleets.
This epoch was the great period of the English privateers, who were involved in an undeclared naval war with Spain. On the average, England would send over a hundred privateering ships a year to attack the Spanish Caribbean trade. Their activity was a major reason for the formation of the Spanish Armada. Yet, despite Spanish attempts to stop them, the English privateers remained highly successful; Sir Walter Raleigh and Sir Francis Drake were key figures in these successful privateering ventures and among their greatest financial beneficiaries. Despite their success in attacking Spanish shipping, English privateers were greatly impeded by their lack of ports on the American side of the Atlantic.
They clearly understood that their privateering operations would be much more effective if based in America. Having a base at Roanoke, not too distant from the Spanish fleets, would mean that English privateers could spend a full year or longer in the Caribbean, coming to Roanoke when necessary for supplies and repairs and then returning to sea to attack Spanish ships whenever the opportunity arose.65 Unlike the Plymouth Rock colony, which the !( Pilgrims settled in 1620, Roanoke was predatory from the outset; attacking the Spanish treasure ships of the Caribbean was its lifeline and reason for being.
Sir Walter Raleigh was the driving force behind the Roanoke project, which began in 1584 with a reconnaissance mission and continued until 1590, when the English made their last contact with the colony and found no trace of its settlers.
Like Queen Elizabeth, Raleigh was driven by the dream of asserting English power and forging an empire, which they hoped would ultimately surpass Spain. For Raleigh, establishing the colony of Roanoke was the first step toward the creation of that empire.
Founding the Roanoke colony was an expensive proposition. Raleigh justified the expenditure to his investors by the immediate returns they would gain from Roanoke as a privateering base in addition to whatever mineral wealth they might chance upon in the area. Though some English contemporaries disapproved of privateering, it was widely regarded as legitimate in Raleigh’s time; English investors were quick to see the lucrative potential of the Roanoke colony as a base for attacking the Spanish treasure fleets of the Caribbean.
The first stage of colonization at Roanoke began in 1585 but lasted only a year. The initial process was temporarily disrupted in 1586, when most of the original colonists returned to England with Drake’s privateering fleet, the same fleet that had brought the liberated Muslim galley slaves. As indicated earlier, many of the slaves proceeded with Drake to England and did not stay behind at Roanoke. It is not clear, however, what happened to the remainder.
Prior to Drake’s visit in 1586, there had been about one hundred and seven colonists in Roanoke from its first settlement of 1585. They had been brought to Roanoke in a fleet of seven ships designed for privateering. The fleet had included about six hundred men, about half of whom were sailors and whose numbers were so large because privateering was their primary mission.68 The first colonists were largely veterans of England’s Irish and European wars; they were well trained for privateering missions and for defending the settlement against possible Spanish attacks, but they were poorly suited for building a permanent society or maintaining good relations with the local Native Americans, both of which were crucial for their long-term survival and success.
When Sir Francis Drake arrived at the Roanoke Colony with his liberated galley slaves and a number of Black domestic slaves in the summer of 1586, he offered the original settlers two choices: he would either leave them with a month of supplies, a smaller ship, and some boats with a sufficient number of pilots and seamen, or he would take them home with him to England. At first, the colonists chose to stay, but they were suddenly hit by a violent three-day storm, which wrecked the ship Drake had promised the colonists and wreaked havoc on Drake’s fleet. After the storm, the original colonists reconsidered their options and decided in favor of returning to England. Drake made them a new offer of provisions and a different ship, if they chose to stay behind; he emphasized that the wreckage his fleet had suffered in the storm left only limited space to accommodate the Roanoke settlers for their return to England. Nevertheless, the first colonists chose to abandon Roanoke and return with Drake to England.
Ironically, on the same day Drake set sail from Roanoke to return the colonists, a supply ship, which Sir Walter Raleigh had sent, arrived at Roanoke with relief. The supply ship had failed to sight Drake’s fleet, so when it arrived at Roanoke, its crew found the colony deserted and returned to England. In mid-August of the same year, another English ship arrived with further supplies for the colony but learned from a local Native American that Drake had taken the original settlers and returned with them to England; this last ship left a small group of fifteen to eighteen men on Roanoke with two years provisions and sailed away.
In 1587, a second attempt was made to colonize Roanoke, but its success was hampered by the imminent attack of the Spanish Armada upon England, unsuccessfully launched in 1588. This second and final attempt at settlement in
1587 consisted of about one hundred and fifteen men and a number of families, unmarried women, and children, who sought to establish a plantation colony on a self-supporting basis.71 Historically, the settlers of this second group are known as the “lost colonists” of Roanoke, not the original settlers who came during the period of 1585 through 1586. It was during this second period of settlement that the birth of Virginia Dare took place, the first English child born in America.72 Other Roanoke colonists remain unaccounted for, including many of Drake’s liberated slaves, as well as the small garrison the second supply ship had left behind in the late summer of 1586.
For some time prior to the Armada’s attack, England placed an embargo on ships going to the New World to ensure that the English forces at home had maximum strength to withstand the expected Spanish attack. Because of this embargo, Roanoke’s connection with England was cut off from 1587 until 1590. Although the second settlement of Roanoke in 1587 was intended to transform the colony into a self-supporting agricultural community, that goal remained secondary and was kept in the background, while the privateering agenda remained the colony’s primary goal. As such, the implementation of the agrarian plan was frustrated at every turn. The second group of settlers preferred overwhelmingly to relocate Portrait of Sir Francis Drake by Jodocus Hondius.
Further north to the Chesapeake Bay, which was more suitable for an agrarian colony. But the ship captains and seamen, who made up the majority at Roanoke, were, again, preoccupied with privateering and overruled the possibility of moving to the Chesapeake Bay, which was less suitable for privateering. They also noted that with the hurricane season soon approaching, the best weather for attacking Spanish ships had almost come to an end, and there was no longer adequate time to establish a new colony further north.
Roanoke’s governor, John White, who was also Virginia Dare’s grandfather, was sent to England in 1587 on a desperate mission to secure supplies. He finally obtained special permission in 1588 to return to Roanoke with supplies in two smaller ships. White loathed privateering and regarded it as a type of “thieving.”
Much to his distress, the two captains commissioned to bring him back to Roanoke were privateers and could not be swayed from attempts to engage in privateering route to Roanoke. Their raids proved disastrous: all supplies were lost, and the two ships were forced to return to England empty handed, which made it impossible for White to reach Roanoke and bring the needed supplies.
Two years later in 1590, White was finally able to make the voyage to Roanoke, only to learn after arrival that the colony had disappeared. None of the original colonists, including his granddaughter, Virginia Dare, were ever found. But the colonists had left the word “CROATAN” carved on a post near the entrance to the fort, which was understood by previous agreement to mean that they had peacefully joined the Croatan (Hatteras) tribe of Native Americans on North Carolina’s Outer Banks.76 Rumors of a large English presence in North America continued to circulate in Europe after the loss of the Roanoke colony.77 But after the initial failure at Roanoke, England lost active interest in American settlements for another twenty years.
Queen Elizabeth I had commissioned Sir Francis Drake, who was closely associated with Sir Walter Raleigh and the Roanoke project, to strike the Spanish Empire and its American settlements as part of a general strategy toward opening a sea war with Spain and challenging its hegemony. Drake set out on his raiding expedition in 1585, which constituted a major challenge to Spanish power, while providing Spain with a rationale for sending the Armada to attack England three years later.
Drake set out from England with a fleet of about thirty ships and a combined force of nearly one thousand men. His intention was to raid a number of Spanish ports and colonies prior to making his rendezvous at Roanoke.80 Through their agents in London, Spanish authorities knew in advance that Drake was preparing a large fleet in England, which would be used against them. Official Spanish reports estimated the size of Drake’s fleet at twenty-four large ships in addition to a number of smaller crafts and as many as two thousand seamen.81 Although the number of Drake’s men was actually half that estimate, his forces were still approximately ten times the size of a typically large privateering party of the time. The fleet also outnumbered by as much as two to five times the Spanish militias that were posted in the major Spanish ports of the Caribbean. Drake’s supremacy in numbers explains in part how he was able to defeat the Spanish with relative ease and spend several weeks in residence at the ports of Santo Domingo and Cartagena (Colombia) after taking them.
Drake began his expedition by attacking the northwestern coast of Spain. He then proceeded southward along the African coast to raid the Cape Verde Islands. The islands had long been under Portuguese control but were now united under Spanish rule. The Cape Verde Islands gave Drake direct access to the powerful equatorial current, which facilitated the fleet’s crossing of the Atlantic to the Americas. Drake arrived at Santo Domingo in the present-day Dominican Republic. After sacking Santo Domingo and spending several weeks there, he proceeded to the port of Cartagena on the “Spanish Main” in present-day Colombia. He destroyed the city and encamped there for several weeks before sailing on. Drake intended to attack Havana, which was the vital link in the Spanish colonial system in the Caribbean. Conquest of Havana would have redounded greatly to Drake’s credit and been a major blow to Spain. But he was advised against the attack and decided to avoid the city. One of Drake’s Spanish captives reported that he had learned that Havana was too well protected (the city had advanced knowledge of Drake’s fleet and his previous attacks on Santo Domingo and Cartagena); Drake feared that attacking Havana would lead to unacceptable losses. He was also apprehensive that he could not hold the port for any significant time even if he were initially victorious.
Drake bypassed Havana and made his way northward along the Florida coast to St. Augustine, Spain’s principal Atlantic outpost for patrolling America’s northern coasts against technically illegal (non-Spanish) settlements. He razed St. Augustine and then proceeded northward along the Atlantic coast to Roanoke, which he reached in July 1586.85 After his return to England, Drake claimed that he had destroyed St. Augustine to protect Roanoke, since the Spanish would have used the base in St. Augustine to disrupt the English colony.
Drake began collecting liberated Black slaves in his raid on the Cape Verde Islands before crossing the Atlantic. He continued to take more liberated slaves on board once he arrived in the Caribbean.87 Spanish colonial authorities took careful note of Drake’s raids and his interest in taking on board large numbers of captives and surmised that there must be an illegal English settlement somewhere along the North American Atlantic coast, which they believed Drake hoped to reinforce with the captives.
The Muslim galley slaves were acquired in Drake’s raid on Cartagena, although one Spanish report states that he also carried off “Moors” from Santo Domingo. English records make reference to two or three “Moors” who assisted Drake as guides in his surprise attack on Santo Domingo. In any case, whatever “Moors” Drake may have taken on board his fleet at Santo Domingo, they should not be confused with the much more numerous galley slaves of Cartagena.
Both Spanish and English records give similar accounts of how the galley slaves of Cartagena made their escape from Spanish captivity. A barrel of gunpowder caught fire in one of the war galleys; in the chaos that ensued after its explosion, the slaves were released or escaped from the irons that were holding them in their rowing positions, and they escaped by swimming to the English ships.89 In describing the pandemonium that broke out in the galleys, the journal of one of Drake’s ships states that fighting broke out between the Spaniards and the galley slaves; the Spanish killed many of them, took others with them ashore, while still others broke free and swam to the English boats.90 All accounts indicate that the galley slaves willingly joined Drake’s fleet and served him in various unspecified capacities. Spanish records consistently speak generically of the galley slaves as “Moors” and give no more specific indication of their national affiliations or cultural and ethnic backgrounds. The English records are less generic and speak of the galley slaves as an assemblage of “Turks, Moors, Greeks, Frenchmen,92 and Negroes.” The number of the galley slaves was great, although reports vary widely. A Spanish report from Cartagena estimates the numbers of Drake’s liberated “Moors” to have been around two hundred. It notes that Drake welcomed them, treated them well, and promised to return them to their lands, claiming that he planned ultimately to pass through the Straits of Gibraltar.94 An English ship journal from Drake’s fleet speaks of only one “very fair galley,” from which the slaves escaped, and estimates their number at four hundred. Yet another entry from the same journal states that when Drake left Cartagena he took with him “some two hundred Turks and Moors” in addition to a large number of “Negroes.”95 Another entry from the same ship journal gives a considerably smaller number, stating that eighty slaves were taken, whom it designates as Turks, Frenchmen, Greeks, and Negroes.
This particular reference to “80” slaves (written out as such in Arabic numerals) may well be a mistake—as one historian suggests—for “800,” since the same journal clearly states elsewhere that the numbers were in the hundreds.97 A private merchant’s report that reached England a short time after Drake’s raids appears to exaggerate the numbers of persons Drake liberated; it states that Drake took away with him from Cartagena one thousand two hundred Englishmen, Frenchmen, Flemings, and “Provincials,” whom he had liberated from prison, in addition to eight hundred “country people.”
The “Turks” referred to in the English records of Drake’s raid on Cartagena were subjects of the Ottoman Empire. After Drake’s return to England, as noted earlier, the Queen’s Privy Council wrote in August 1586 to the Levant Company, which was trading in Turkey; the communication directed them to take charge of the one hundred Turks and make plans for sending them back to Turkey, possibly in exchange for favors to be granted by the sultan.99 The reference to “Greeks” also affirms that the “Turks” in the English records were subjects of the Ottoman Empire, since the two ethnic groups were closely interlinked in Ottoman realms.
Greeks—Muslim and Christian alike—played a prominent role in the Ottoman Empire, and one would expect in any significant assemblage of Ottomans to find Greeks. The famous sixteenth-century Corsairs, Khidr Khayr al-Din Barbarosa (1483-1546) and his older brother, Baba Aruj (1473-1518), were from the Greek island of Lesbos. One of Drake’s “Turks,” who is identified as Chinano, also came from the Greek islands.
As indicated earlier, the descriptions of the “Moors” in these records appear at times to refer to “converted” Iberian Moors (Moriscos) and not to North African Moors. It would be natural to expect to find Moriscos among Drake’s liberated galley slaves, because they made up a substantial portion of Spanish galley slaves in general. The Spanish governor at Cartagena speaks, for example, in an official deposition to the Spanish crown of certain soldiers in Cartagena, “especially Moors,” who deserted the Spanish and joined Drake’s forces.101 This report has perplexed Western historians; one historian comments, for example, that it was “unlikely that the Spaniards had soldiers who were Moors.”102 It seems even more unlikely that the governor at Cartagena would so carelessly misspeak on this matter in an official legal deposition to the king of Spain. The governor’s reference to “Moors” is less problematic, if the word “Moor” is taken to refer to “converted” Iberian “Moors” (Moriscos), who might have been among the regular ranks of the governor’s troops.
Another Spanish deposition on Drake’s raid at Cartagena states that “most of the [galley] slaves and many of the convicts from the galleys went off with the English.”103 Although all galley slaves were technically “convicts” in that they had been condemned to the galleys, this reference to “convicts” among the slaves raises the question again of whether at least some of these “convicts” were not Moriscos. As indicated earlier, Moriscos were customarily sent to the galleys as convicts of “heresy” at the hands of the Inquisition and made up a sizeable proportion of Spanish galley slaves.
Although some Muslims who came or were brought to the Americas had
strong personal ties to Islam and attempted to practice it and preach it whenever the opportunity arose, many others were “sociological” Muslims or persons with only some historical connection to Islam but lacking any significant knowledge of the faith or personal commitment to its practice.104 According to one Spanish account of the galley slave Moors, they appear as “sociological” Muslims of this vein. The deposition in question, which was written by a private citizen wishing to volunteer beneficial information to the crown, describes Drake’s successful raid on Cartagena as “Heaven’s punishment on our sins.” It explains that the sins of the city’s people had increased greatly with the arrival of the galleys, their officers, and crews. The deposition accuses them of murders, robberies, and other insolences. It specifically mentions “unrighteous” associations between the Moors of the galleys and women of Cartagena, slaves, Native Americans, and “even other women of other sort, moved by desire which overmasters every other consideration.” He complains that the governor of Cartagena failed to punish the “Moors” for this insolence “because of the great friendship between the governor and the general who was commanding the galleys.”
It is difficult to determine the meaning and veracity of this reference to “unrighteous” mixing between the Moors and local Colombian women. It hardly establishes the identity of the “Moors” as Moriscos. At the same
time, Moriscos were outwardly identical to the Spanish, and this fact would have facilitated their mixing with local women, since they shared the Spanish language and similar cultural backgrounds. As noted before, an English ship journal reports on Drake’s raid on Santo Domingo that “two or three Moors” served him as guides when most of his captains and seven hundred of his men went ashore in an attempted surprise attack on the
city.106 These “Moors” had first-hand knowledge of the Spanish colony and its people. Conceivably, North African or Moroccan Moors might have acquired such knowledge under liberal conditions of treatment, but “converted” Iberian Moors, who, for all intents and purposes, were identical to their Spanish countrymen would have had ready access to such knowledge.
The assemblage of liberated slaves whom Drake took on board his fleet in the Caribbean also consisted of a large number of Black slaves, whose numbers appear comparable in size to those of the Turks and Moors. As indicated earlier, Drake began collecting “liberated” Black slaves in his raid on the Cape Verde Islands and he continued to increase their numbers in all subsequent raids. According to the report of an escaped Spanish prisoner, Drake had one hundred and fifty Black slaves, both men and women, on board his fleet after leaving Santo Domingo and
prior to his attack on Cartagena;108 many additional Black slaves joined Drake after his attack on that port.109 Several slave masters from Cartagena came to Drake, attempting to ransom their Black slaves, but he refused to return them to their masters for ransom unless the slaves themselves were willing to go back.110 Drake
took on an additional number of Black slaves at St. Augustine. Three other Black slaves at St. Augustine hid from Drake and subsequently reported to the town governor that Drake had taken the Black slaves because: “He meant to leave all the negroes he had in a fort and settlement established at Jacan [Roanoke] by the English who went there a year ago. He intended to leave the 250 blacks and all his small craft there and cross to England with only the larger vessels.”111 A solitary Spanish report of a private citizen from Cartagena contends that
three hundred Native Americans, mostly women, joined Drake’s fleet in that city in addition to the “Turks,” “Moors,” and Black slaves.112 This report is not confirmed by any other Spanish or English account. Since there is no further reference to liberated Native American captives at Roanoke, it may have been only hearsay with
no historical substance. One historian suggests, however, that if Drake did in fact take the Native American women on board, it was only temporary, and he probably put them ashore further up the coast.We are unlikely to ever know for certain the full story of all the hundreds of liberated Muslim galley slaves and Black domestic slaves Sir Francis Drake brought in his fleet when he came to Roanoke in 1586. Because Roanoke was established as
a privateering colony under constant danger of Spanish attack, early records about it were kept intentionally vague to preserve secrecy. When Drake sailed for the colony in 1586, he was not sure exactly where to find it because the reports he had been given were kept intentionally vague unless they fell into Spanish hands. Secrecy surrounding Roanoke partially explains the gaps in our historical records about it. Beyond considerations of secrecy, however, the Roanoke reports that we do have are characteristic examples of the inherent limitations of historical records. The exasperating nature of these reports must always be kept in mind in assessing the ultimate fate of Drake’s liberated captives. As opposed to the careful narratives of professional historians, the historical records they are forced to rely on are generally haphazard, fortuitous, and written by unobservant, often poorly educated people, who take much for granted and fail to note vital facts. Record keepers do not make records for the sake of posterity but for personal, public, and often very mundane reasons. The sole French account of Drake’s liberated galley slaves, for example, was strictly concerned with French
interests. It recorded the number of French prisoners Drake liberated but made only a most passing reference to the hundreds of other liberated slaves. It gave no indication of their numbers or identity, which were apparently of little concern to the French recorder.115 When historical records do note unusual facts, however, such as the presence of large numbers of Turks and Moors among the liberated galley slaves, those facts carry special weight. On the other hand, when the same records fail to keep track of these Muslims and do not fully inform us of their final destinies, we should not regard that gap as surprising or contradictory. It merely reflects the fact that their plight was neither a fundamental concern of the record keepers nor
something that they necessarily had any knowledge of.
English and Spanish records concur that Drake welcomed all the liberated slaves on his fleet and commanded his crew to treat them well. An escaped Spanish captive complained that Drake treated all nationalities well except for Spaniards. Like his colleague Sir Walter Raleigh, Drake intended to use Roanoke as a privateering base to raid the Caribbean.119 Historians generally agree that Drake’s purpose in collecting his large assemblage of liberated slaves was to use them as reinforcements at Roanoke with the exception of those Muslims whom
he intended to repatriate.120 English records speak only of the repatriation of one hundred “Turks.” Although the English records consistently distinguish between “Turkish” and “Moorish” galley slaves, no mention is made of repatriating any of the “Moors.” Likewise, there are no reports of what became of the hundreds of Black slaves whom Drake had taken on board or of the reported contingent of Native American women. Only a relatively small number of the entire group is actually known to have come with his fleet to England.
As mentioned, a Spanish report taken from St. Augustine on the authority of Black slaves who had hidden and remained behind indicated that Drake had intended to take his liberated captives to Roanoke after his attack on St. Augustine to reinforce the English colony.123 Another important Spanish report to the crown expressed concern over Drake’s collection of the liberated slaves, believing that he had taken them on board to help establish a presumed English colony on the Atlantic seaboard, which the Spanish had still failed to locate but suspected to be in Santa Maria Bay (the Chesapeake Bay).124 Spanish reports indicate that the liberated slaves performed valuable services for Drake. It should also be noted that, according to one of the English ship journals, Drake lost as many as one hundred of his own crew to disease in Cartagena.125 Thus, the liberated slaves may have also compensated for Drake’s loss of crew, assuming that they did not themselves fall
victim to the same diseases.
With the exception of ten liberated French captives who were turned over to a French ship in the Caribbean, the liberated galley slaves, the Black slaves, and anyone else who might have been in Drake’s assemblage were still with his fleet when it left St. Augustine in ruins in May 1586 and made its way to Roanoke. If Drake did leave any of his remarkable assemblage behind, they left no trace at Roanoke itself. As noted, two separate English supply ships came to Roanoke shortly after Drake’s departure in 1586;127 none of these ships reported finding
anyone alive at the settlement. One uncorroborated Spanish intelligence report alleged that the first English relief ship found the hanged bodies of an Englishman and a Native American. The fate of all the others is one of the many remaining mysteries surrounding the entire Roanoke enterprise. As indicated earlier, the first supply ship landed only hours after Drake’s fleet had left; the second came later that summer and left behind a small garrison of fifteen to eighteen men whose fate also remains unknown.128 None of these ships reported finding remnants of Drake’s fleet at Roanoke. It seems unlikely that any persons Drake might have left behind at Roanoke could have disappeared so quickly without leaving a trace or could have been able to assimilate so rapidly with local Native Americans. It is possible, however, that any persons Drake left behind might have hidden from the ships, possibly because they did not know their country of origin and judged it wise to keep out of sight during the short time the relief vessels were there, as it was often the custom of Native Americans to do when foreign
ships arrived at their shores. It is also possible that Drake did not leave his liberated captives at Roanoke
but somewhere else along the coast in the colony’s vicinity. Some of the first settlers and liberated captives,
English records speak clearly of official negotiations to send one hundred former galley slaves back to Turkish dominions, and this repatriation was almost certainly completed.
Including members of Drake’s fleet, may have drowned or been left stranded in the violent three day storm that suddenly struck shortly after the fleet anchored at Roanoke.130 The records make no mention of those who perished in the storm, but they do indicate that a number of ships were sunk, which compelled Drake to complain that he lacked adequate space in his fleet to accommodate Roanoke’s English settlers, who had decided to return with him to England.131 This lack of space in the fleet would have also made it more likely that Drake left as many of the liberated galley slaves and Black domestic slaves on the coast as possible, since he would have presumably granted priority to accommodating the English settlers. Drake was not morally averse to leaving people behind. He clearly abandoned three of his own men at Roanoke, having sent them on a mission to the interior but setting out with his fleet before they returned. They too were never heard of again. The noted Roanoke historian Karen Kupperman suggests that the several hundred galley slaves, the Blacks, and the Native Americans (if they were in fact with Drake) were probably put ashore, possibly with some of the supplies that Drake had taken from his raid on St. Augustine to use at Roanoke. Kupperman notes that they may well have been adopted into Native American tribes of the region, which, unlike the Europeans, lacked a sense of racial exclusivity and generally accepted on equal terms anyone who was willing to unite with them culturally.132
When the Roanoke colony was resettled in 1587, there were still no reports of the liberated slaves or other remnants of the first colony.133 Twenty years after the failure of the second Roanoke settlement, however, there was evidence of White settlers identified as having come from Roanoke who were living in modern Virginia. Powhatan, a local Native American chieftain, also reportedly killed some of the original Roanoke settlers shortly before the founding of the Jamestown colony of Virginia in 1607, which indicates that those unfortunate settlers had survived for at least two decades. English records speak clearly of official negotiations to send one hundred former galley slaves back to Turkish dominions, and this repatriation was almost certainly completed.135 It is very strange that no reference is made to any repatriation of Drake’s liberated “Moors” to Morocco or North Africa, especially if they were “genuine” (North African) Moors, as one historian calls them.136 As we have seen, the Renaissance triangle between England, Morocco, and the Americas was crucial
to English interests and directly involved the Moroccans, not the Turks. Its critical importance for the English would have made repatriation of the “Moors” even more strategically valuable than the repatriation of the Turks. If, however, Drake’s “Moors” were “converted” Iberian Moors, who were ethnically, culturally, and 26
linguistically identical to the Spanish and not necessarily welcome in Morocco or North Africa, Drake and the English might not have seen their repatriation to lands that were not originally their own as a potential benefit.
North Carolina legends maintain that the lost colonists of Roanoke survived, intermarried with Native Americans, and left descendants who continue to live in the region until the present day.137 The Melungeons and Lumbees—two unique, enigmatic, and closely related peoples of the South—have oral traditions linking them with Roanoke; many American writers and historians have long believed that the origins of both peoples are rooted in the remnants of the lost colony. For centuries, the Melungeons have been concentrated in the Appalachian Mountains of Butler County, Tennessee, although significant groups of them settled in other regions of Tennessee, North Carolina, Virginia, and Kentucky.139 For a similarly long period, the Lumbees have been concentrated in the marsh country
along the Lumber River of Robeson County, North Carolina.140 Melungeons and Lumbees are ethnically and culturally similar and have long traced their ancestry back to a common stock; they share many family names (such as Bennett, Dare, Graham, Martin, Taylor, and White),141 which are often similar to the surnames of the original Roanoke settlers.142 Many long-established American families have some genealogical connection with these peoples. Among the most famous Americans with possible Melungeon roots are Andrew Jackson, Abraham Lincoln, and Elvis Presley.
The most puzzling and frequently discussed aspect of the Melungeon and Lumbee stories has always been their perplexing origins, which have fascinated writers for generations.144 Melungeons and Lumbees are typically tannish colored and Mediterranean looking, usually having dark hair and eyes.145 They are a distinctive people and have never fit neatly into any of the three principal ethnic classifications of British colonial America: White, Black, and “Indian” (Native American). Since at least the mid-1800s, it has been suggested that they had
Portuguese, Spanish, and Moorish roots and were mixed with escaped Black slaves and Native Americans,146 making up all the racial elements represented in and around the Roanoke colony region. Neither “Melungeon” nor “Lumbee” was a name that either of the peoples originally used for themselves. Rather they were epithets given them by the Whites who lived near them.147 In the nineteenth century, Melungeons deeply resented being identified by that name, although it has gradually become acceptable to them over the generations.148 The only designation by which both Melungeons and Lumbees have proudly and consistently defined themselves over the centuries was that they were “Portuguese,” which they pronounced as “Porterghee” or “Portyghee.”149 We should note that the Roanoke colony also had a distinctly Portuguese connection. Captain Simon Fernandes, who was a Portuguese Protestant from the Azores, was very influential in the Roanoke project and was directly involved in all its voyages.150
According to the report of a Spanish seaman who spent considerable time in Drake’s captivity, in addition to Fernandes, Drake also had a large number of other Portuguese and Genoese pilots and shipmasters serving him throughout his fleet. The name “Melungeon” is much older than “Lumbee” and probably derives from the French word mélangé (mixed) for “mixed race,” which French settlers apparently gave the Melungeons when they first encountered them in America in the seventeenth century.152 The Lumbees take their name from the Lumber River, which runs through their lands. They were living there when the first Scottish colonists entered the area. They came to be officially known as Lumbees only in the 1930s. The Melungeons and Lumbees antedate the coming of the first White settlers to the regions of Tennessee, North Carolina, Virginia, and Kentucky where they are found. When the first White settlers arrived in those areas in the seventeenth and eighteenth centuries, they found the Melungeons and Lumbees speaking an archaic form of English and leading lifestyles similar to Europeans, such as living in cabins, tilling the soil, and practicing European arts and crafts, especially the mining and smelting of silver.154 In the memory of their White neighbors, the Melungeons and Lumbees have always been Protestant Christians. For centuries, Melungeons and Lumbees lived as isolated populations surrounded by generally unfriendly White neighbors, who—despite religious, cultural, and linguistic similarities—looked down upon them as “almost White” and sought to usurp their lands and legal rights. According to Melungeon oral tradition,
they had once owned the “good land” before the “white folks” came and took it away.
Historically, Whites regarded Melungeons as a mixed, tri-racial people, not being able to assign them to a distinctive category of their own.157 Given the evidence, however, it should be understood that race and ethnicity in America are more complex than generally assumed; both Melungeons and Lumbees should be classified as a distinctive fourth group, which, although mixed, does not fall neatly into the traditional American categories of White, Black, or Native American. For purposes of civil and legal rights in earlier times of racial segregation, Melungeons and Lumbees sometimes defined themselves as as “Indians” to avoid the total disenfranchisement that came with being classified as “Black.” They did not, however, practice a Native American religion.159 Neither of them is known to have ever spoken a Native American language of their own or possessed an
indigenous tribal culture, including, for example, Native legends, literature, folk tales, dance, music, or similar traditions. Unlike indigenous Native peoples, they have no treaties with the United States and never lived on reservations.160 They remained neutral in the wars between Whites and Native Americans.161 Although
both Melungeons and Lumbees have intermarried with Blacks, they do not have clear African origins, were never enslaved, and have always been “free” in the sense of being non-slaves.
Melungeons enjoyed rights of American citizenship until 1834 when they were designated as “free persons of color” and consequently disenfranchised.163 In the wake of the Civil War, Lumbees had no specific legal designation until 1885, when the North Carolina legislature officially designated them as Native Americans
yet without full recognition, consequently depriving them of certain rights such as access to reservations.164 In 1885, North Carolina gave them the name “Croatans” after the name of the Hatteras tribe associated with Roanoke, and Lumbees used that name until 1911, when it was abandoned after falling into disfavor because
Whites shortened it pejoratively to “Cro.” A common legend surrounding the Melungeon-Lumbee claim to be Portuguese
was that they were descendants of shipwrecked sailors who were marooned on the Carolina coast and gradually made their way westward over the hills of East Tennessee, where they intermarried with Native American women.166 They
maintained that they were part European and that some of their forebears had “come across the sea” and knew how to “talk in books,” that is, to read.167 From as early as the eighteenth century, it has been speculated that the
Melungeons were of Moorish descent.168 Judge Lewis Shepherd, who had defended a Melungeon girl in a famous Tennessee case in 1872 regarding interracial marriage, contended that her people were Portuguese Moors.169 According to other accounts, the Melungeons were “Christianized Portuguese Moors who fled to the New World
to escape the horrors of the Inquisition’s torture chambers.”170 In recent times, studies of gene frequency distributions and DNA among the Melungeons have indicated that their genetic makeup is consistent with their claim
to be Portuguese or generally Mediterranean. The same studies showed marked contrasts between their gene pools and those typically associated with Blacks and Native Americans. Melungeons also closely match certain Turkish (Anatolian) and South Asian (northern Indian) gene pools.171 We must keep the nature of the Roanoke records in mind and understand that their silence regarding the fate of the unaccounted Muslim galley slaves and Black domestic slaves is not surprising. Although historical speculation is naturally held within the limits of the documentation that records provide, we must not draw the mistaken conclusion that the records we have tell the full story. In reflecting on the “lost colony” and Drake’s liberated galley slaves, we must take into consideration that a number of other unreported scenarios are equally possible and must not be ruled out. Among these untold scenarios is that, somehow, the remnants of the Roanoke colony, including a significant number of Drake’s liberated Muslim captives, did survive, established roots in America, and became the forbears of the
Melungeons, Lumbees, and possibly other Americans related to them.
Austin, Allen, African Muslims in Antebellum America. New York: Routledge, 1997. Barton, Lew. The Most Ironic Story in American History: An Authoritative, Documented History of the Lumbee Indians of North Carolina. Pembroke, North Carolina: Lew Barton & Associated Printing Corporation Charlotte, North Carolina, 1967. Bennassar, Bartolomé and Lucile. Les chrétiens d’Allah: L’histoire extraordinaire des renégats, XVIe et XVIIe siècles. Paris: Perrin, 1989. Bible, Jean Patterson. Melungeons Yesterday and Today. Rogersville, Tennessee: East
Tennessee Printing Company, 1975. Blu, Karen I. The Lumbee Problem: The Making of an American Indian People.
Cambridge: Cambridge University Press, 1980 Boucharb, Ahmed. “Spécificité du problème morisque au Portugal: une colonie étrangère refusant l’assimilation et souffrant d’un sentiment de déracinement et de nostalgie.” In Cardaillac, Louis, ed. Les morisques et leur temps, 215-33.
Bulliet, Richard. Conversion to Islam in the Medieval Period: An Essay in Quantitative History. Cambridge, Mass.: Harvard University Press, 1979. Cardaillac, Louis, ed. Les morisques et leur temps: Table ronde internationale, 4-7 Juillet 1981, Montpellier. Paris: Centre National de la Recherche Scientifique, 1983. Castro, Américo. “The Spanish Sense of Nobility.” In Johnson, Harold, ed. From Reconquest to Empire: The Iberian Background of Latin American History. New York: Knopf, 1970: 185-208. Clough, Cecil H. and Hair, P. E. H., eds. The European Outthrust and Encounter: The 30 First Phase c. 1400-c. 1700: Essays in Tribute to David Beers Quinn on His 85th Birthday. Liverpool: Liverpool University Press, 1994. Diouf, Sylviane A. Servants of Allah: African Muslims Enslaved in the Americas. New York: New York University Press, 1998. Dressendörfer, Peter. Islam unter der Inquisition: Die Morisco-Prozesse in Toledo 1575-1610. Wiesbaden: F. Steiner, 1971. Espalza, Míkel de. Los Moriscos antes y después de la expulsion. Madrid: MAPFRE, 1992.
Garrido Aranda, Antonio. Moriscos e Indios: Precedentes hispánicos de la evangelización en México. Mexico City: Universidad Nacional Autónoma de México, 1980. Guthrie, James L. “Melungeons: Comparison of Gene Frequency Distributions to Those of Worldwide Populations.” In Tennessee Anthropologist, vol. XV, no. 1 Spring 1990: 13-22
Hale, Will T. and Merritt, Dixon L. A History of Tennessee and Tennesseans: The Leaders and Representative Men in Commerce, Industry and Modern Activities. 8 volumes. Chicago and New York: The Lewis Publishing Company, 1913.
Hamer, Philip M. Tennessee: A History 1673-1932. New York: American Historical Society, 1933. Harvey, L. P. Islamic Spain: 1250-1500. Chicago & London: University of Chicago Press, 1990. Hirschman, Elizabeth C[aldwell]. Melungeons: The Last Lost Tribe in America. Macon, Georgia: Mercer University Press, 2005. Hoffman, Paul E. Spain and the Roanoke Voyages. Raleigh: America’s Four Hundredth Anniversary Committee North Carolina Department of Cultural Resources, 1987. Hopkins, J. F. P. Letters from Barbary 1576-1774: Arabic Documents in the Public Record Office. Oxford: Oxford University Press, 1982. Humber, John L. Backgrounds and Preparations for the Roanoke Voyages, 1584-1590. Raleigh: America’s Four Hundredth Anniversary Committee North Carolina Department of Cultural Resources, 1986. Irving, Tomás. La Artesania mudejar en las Americas: con ilustraciones y mapas. Cedar Rapids: Mosque Foundation, 1992. Johnson, Harold Benjamin, ed. From Reconquest to Empire: The Iberian Background of Latin American History. New York: Knopf, 1970. Kennedy, N. Brent and Robyn Vaughan. The Melungeons: The Resurrection of a Proud People, An Untold Story of Ethnic Cleansing in America. Macon, Georgia:
Mercer University Press, 1997. Kupperman, Karen Ordahl. Roanoke: The Abandoned Colony. Totowa, New Jersey:
Rowman & Alanheld, 1984. Ladero Quesada, Miguel Angel. Los Mudejares de Castilla y otros estudios de historia
medieval Andaluza. Granada: Universidad de Granada, 1989. Matar, Nabil. Islam in Britain 1558-1685. Cambridge: Cambridge University Press, 1998.
Matar, Nabil. Turks, Moors, and Englishmen in the Age of Discovery. New York:
Columbia University Press, 1999. McMillan, Hamilton, Sir Walter Raleigh’s Lost Colony: Historical Sketch of the
Attempts Made by Sir Walter Raleigh to Establish a Colony in Virginia, with Traditions of an Indian Tribe in North Carolina, Indicating the Fate of the Colony of Englishmen Left on Roanoke Island in 1587. Raleigh, North Carolina: Edwards & Broughton, 1888/1907). Moore, John Trotwood and Foster, Austin P. Tennessee: The Volunteer State, 1729-1923. Chicago and Nashville: The S. J. Clarke Publishing Company, 1923. Podber, Jacob J. The Electronic Front Porch: An Oral History of the Arrival of Modern Media in Rural Appalachia and the Melungeon Community. Macon, Georgia: Mercer University Press, 2007.
Quinn, David Beers. The Lost Colonists: Their Fortune and Probable Fate. Raleigh: North Carolina Department of Cultural Resources, 1984. Quinn, David Beers. “A Portuguese Pilot in the English Service.” In Quinn, David Beers.
England and the Discovery of America 1481-1620: From the Bristol Voyages of the Fifteenth century to the Pilgrim Settlement at Plymouth. New York: Knopf, 1974: 246-63.
Quinn, David Beers, “Reflections” in Cecil H. Clough and P. E. H. Hair, eds., The European Outthrust and Encounter: The First Phase c. 1400-c. 1700: Essays in Tribute to David Beers Quinn on His 85th Birthday, (Liverpool: Liverpool University Press, 1994), 3-26. Quinn, David Beers, ed. The Roanoke Voyages 1584-1590: Documents to Illustrate the English Voyages to North America under the Patent Granted to Walter Raleigh in 1584, 2 vols. London: The Hakluyt Society, 1955. Quinn, David Beers. “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage.” In Terrae Incognitae: The Journal for the History of Discoveries. Detroit: Wayne State University Press, vol. XIV 1982: 97-104. Rackham, Oliver. The History of the Countryside. London: J. M. Dent, 1986. Read, Jan. The Moors of Spain and Portugal. London: Faber, 1974.
Sider, Gerald M. Lumbee Indian Histories: Race, Ethnicity, and Indian Identity in the Southern United States. Cambridge: Cambridge University Press, 1993. Sollbach, Gerhard E. Amerika 1590: Europas erste Bilder von der Neuen Welt: Der Virginia-Bericht Thomas Harriots mit 25 Kupferstichen Theodor de Brys nach den Bildern John Whites. Essen: Phaidon Verlag, 1992. Taboada, Hernán G. H. La sombra del Islam en la conquista de América. Preface by Serafín Fanjul. Mexico City: Universidad Nacional Autónoma de México, 2004. Winkler, Wayne. Walking toward the Sunset: The Melungeons of Appalachia. Macon, Georgia: Mercer University Press, 2004. Wright, Irene A., trans. and ed. Further English Voyages to Spanish America 1583-1594: Documents from the Archives of the Indies at Seville Illustrating English Voyages to the Caribbean, the Spanish Main, Florida, and Virginia. London: The Hakluyt Society, 1951.
1. A privateer was essentially a state-sponsored pirate. The distinction between a pirate and a privateer may seem semantic, but, unlike pirates, privateers were not at liberty to attack at will any ship on the open seas. The states that sponsored privateers determined which nation’s ships were legitimate prey for its privateers and which were not. Privateers were generally bound to observe that distinction.
2. The term “Moor” in the sixteenth century was used to refer to Muslims in general or to those of Spanish, Portuguese, Moroccan, and North African cultural and ethnic backgrounds. The term is discussed below in greater detail. It is an ambiguous term and carries no specific ethnic connotation; in the context of this paper, it is important to keep in mind that “Moor” can also refer to the former Moors of Spain and Portugal, who were forcibly converted to Catholicism in the sixteenth century and are also called “converted Moors” or “Moriscos.”
3. “Morisco” literally means “little Moor” and refers to former Spanish and Portuguese Muslims (Moors) who had been forced to convert to Catholicism during the sixteenth century at the hands of the Inquisition. The term will be discussed in greater detail in what follows.
4. In the pre-modern world, galleys were ships propelled by oarsmen. They were used in war and trade. The galleys referred to in this article were war galleys, which were generally equipped with artillery and could also be used to ram other ships. Galley slaves were used to row the galleys and were chained to their rowing positions. The Turkish galley slaves referred to in this article would have been prisoners of war who had been
captured in the various naval battles between Spain and the Ottomans. The Moorish galley slaves may have been prisoners of war from the Corsairs (North African and Moroccan Muslim privateers), but, as this article shows, it is also likely that at least some of them were Moriscos who, as was often the case in the sixteenth century, had been condemned to the galleys by the tribunals of the Inquisition on the grounds of being guilty of Islamic practices, which the Inquisition deemed as damnable “heresy.”
5. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 100-01.
6. See Paul Hoffman, Spain and the Roanoke Voyages, 62; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 21-23; David Quinn, The Lost Colonists, xvii.
7. John Humber, Backgrounds and Preparations for the Roanoke Voyages, 25.
8. See Hernán Taboada, La sombra del Islam en la conquista de América, 114.
9. Hernán Taboada, La sombra del Islam en la conquista de América, 32.
10. Irene Wright, Further English Voyages to Spanish America 1583-1592, 213-14; compare Paul Hoffman, Spain and the Roanoke Voyages, 31.
11. See Paul Hoffman, Spain and the Roanoke Voyages, 20-21.
12. See Nabil Matar, Turks, Moors, and Englishmen, 13-14, 5-6, 59, 84.
13. See Hernán Taboada, La sombra del Islam en la conquista de América, 115; L. P. Harvey, Islamic Spain, 325; Sylviane Diouf, Servants of Allah, 1, 18-20, 45-46, 49, 179; Allen Austin, African Muslims in Antebellum America, 22-23. Most Africans brought to the Americas as slaves came from animist non-Muslim backgrounds, but
a significant percentage of them (conservatively, ten to twenty percent) came from the extensive Muslim culture zones of West Africa and were Muslims.
14. Peter Dressendörfer, Islam unter der Inquisition, 31; Bartolomé and Lucile Bennassar, Les chrétiens d’Allah, 75.
15. John Moore and Austin Foster, Tennessee, 1:791; Jean Bible, Melungeons, 95-96, 85-86; Louis Davis, “The Mystery of the Melungeons,” Nashville Tennessean, September 22, 1963: 16 (Cited in Jean Bible, Melungeons, 5).
16. See David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 97, 100.
17. From L. P. Harvey, Islamic Spain, 66.
18. From L. P. Harvey, Islamic Spain, 66.
19. See Cesar Adib Majul, The Contemporary Muslim Movement in the Philippines, (Berkeley: Mizan Press, 1985), 17-18. Interestingly, according to Hernán Taboada, Muslims from the Philippine Islands were also brought to the Spanish Caribbean as slaves in the sixteenth century and made up another unexpected element of the Muslim population of the American colonies (Hernán Taboada, La sombra del Islam en la conquista de América, 115). At the time, Spain was in the process of conquering and colonizing the Philippines; Muslims predominated on the southern islands but also had a significant presence in the north, where they sometimes constituted a ruling
elite.
20. See L. P. Harvey, Islamic Spain, 1.
21. Jan Read, Moors in Spain and Portugal, 225.
22. See L. P. Harvey, Islamic Spain, 2-3; Tomás Irving, Artesania mudejar, 13; Ahmed
Boucharb, “Spécificité du problème morisque au Portugal,” 224.
23. Peter Dressendörfer, Islam unter der Inquisition, 20.
24. Ahmed Boucharb, “Spécificité du problème morisque au Portugal,” 224.
25. Sylviane Diouf, Servants of Allah, 147; she cites Frederick Bowser, The African Slave in Colonial Peru 1524-1650 (Stanford: Stanford University Press, 1974), 251.
26. Peter Dressendörfer, Islam unter der Inquisition, 33-35.
27. Peter Dressendörfer, Islam unter der Inquisition, 37.
28. See Bartolomé and Lucile Bennassar, Les chrétiens d’Allah, 75; Peter Dressendörfer, Islam unter der Inquisition, 31.
29. Peter Dressendörfer, Islam unter der Inquisition, 87-89.
30. Peter Dressendörfer, Islam unter der Inquisition, 34.
31. Hernán Taboada, La sombra del Islam en la conquista de América, 115.
32. See Sylviane Diouf, Servants of Allah, 49-70; Allan Austin, African Muslims in Antebellum America, 51-186.
33. Sylviane Diouf, Servants of Allah, 18, 179.
34. Paul Hoffman, Spain and the Roanoke Voyages, 10.
35. Américo Castro, “The Spanish Sense of Nobility,” 194-98; L. P. Harvey, Islamic Spain, 60; Jan Read, Moors in Spain and Portugal, 229-31; Harold Johnson, From Reconquest to Empire, 8-11.
36. Tomás Irving, Artesania mudejar, 1; Jan Read, Moors in Spain and Portugal, 189.
37. Peter Dressendörfer, Islam unter der Inquisition, 25.
38. See Hernán Taboada, La sombra del Islam en la conquista de América, 115; L. P. Harvey, Islamic Spain, 325; compare Slyviane Diouf, Servants of Allah, 1, 18-20, 45, 49, 179.
39. Americo Castro, “The Spanish Sense of Nobility,” 189.
40. Nabil Matar, Turks, Moors, and Englishmen, 3.
41. Nabil Matar, Turks, Moors, and Englishmen, 5-6.
42. Nabil Matar, Turks, Moors, and Englishmen, 84-85.
43. See Bartolomé Bennassar, Les chrétiens d’Allah, 19.
44. Nabil Matar, “Introduction: England and Mediterranean Captivity, 1577-1704,” in Daniel J. Vitkus, ed., Piracy, Slavery, and Redemption: Barbary Captivity Narratives from Early Modern England, Introduced by Nabil Matar, (New York: Columbia University Press, 2001), 2.
45. Irene Wright, Further English Voyages to Spanish America 1583-1592, 213-14; compare Paul Hoffman, Spain and the Roanoke Voyages, 31.
46. Nabil Matar, Turks, Moors, and Englishmen, 19.
47. See Nabil Matar, Turks, Moors, and Englishmen, 34.
48. The Privy Council was an executive committee that advised the Queen.
49. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 100-01.
50. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 62, note 4.
51. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
52. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
53. Nabil Matar, Islam in Britain 1558-1685, pp. 124-125.
54. Al-Man|‰r was called “the Golden” because of his access to vast treasures of West African gold.
55. See J. F. P. Hopkins, Letters from Barbary 1576-1774: Arabic Documents in the Public
Record Office, (Oxford: Oxford University Press, 1982), 2-9.
56. See Nabil Matar, Turks, Moors, and Englishmen, 9.
57. Nabil Matar, Turks, Moors, and Englishmen, 83-84.
58. Karen Kupperman, Roanoke, 10-12; Gerhard Sollbach, Amerika 1590, 12-13; Paul
Hoffman, Spain and the Roanoke Voyages, ix; David Quinn, ed., The Roanoke Voyages,
2:718.
59. See David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
60. See Gerhard Sollbach, Amerika 1590, 10; Irene Wright, Further English Voyages to Spanish America 1583-1592, xvii.
61. See David Quinn, ed., The Roanoke Voyages, 2:718, 725; Paul Hoffman, Spain and the Roanoke Voyages, 6.
62. David Quinn, ed., The Roanoke Voyages, 2:718; Paul Hoffman, Spain and the Roanoke Voyages, 6.
63. David Quinn, ed., The Roanoke Voyages, 2:721; Paul Hoffman, Spain and the Roanoke
Voyages, 29, 44;
64. Karen Kupperman, Roanoke, 6, 142.
65. Karen Kupperman, Roanoke, 13, 18; David Quinn, ed., The Roanoke Voyages, 1:246.
66. Paul Hoffman, Spain and the Roanoke Voyages, ix; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 25; Irene Wright, Further English Voyages to Spanish America 1583-1592, xxii-xxiii.
67. John Humber, Backgrounds and Preparations for the Roanoke Voyages, 98-99.
68. Karen Kupperman, Roanoke, 18-20; David Quinn, ed. The Roanoke Voyages, 1:244; Paul Hoffman, Spain and the Roanoke Voyages, ix; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 20.
69. Karen Kupperman, Roanoke, 13, 15; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 99.
70. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 272-74; David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 100; Karen Kupperman, Roanoke, 89-90.
71. See David Quinn, “Reflections” in Cecil Clough and P. E. H. Hair, eds., The European Outthrust and Encounter, 23; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 25.
72. John Humber, Backgrounds and Preparations for the Roanoke Voyages, 25.
73. See John Humber, Backgrounds and Preparations for the Roanoke Voyages, 21; David Quinn, The Lost Colonists, xviii;
74. Karen Kupperman, Roanoke, 13, 15, 18, 22; David Quinn, The Roanoke Voyages,
2:719; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 99.
75. John Humber, Backgrounds and Preparations for the Roanoke Voyages, 26-27, 90.
76. See Paul Hoffman, Spain and the Roanoke Voyages, 62; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 21-23; David Quinn, The Lost Colonists, xvii.
77. Paul Hoffman, Spain and the Roanoke Voyages, 62.
78. Karen Kupperman, Roanoke, 142.
79. David Quinn, ed., The Roanoke Voyages, 1:249; Paul Hoffman, Spain and the Roanoke Voyages, 28.
80. Karen Kupperman, Roanoke, 88.
81. Paul Hoffman, Spain and the Roanoke Voyages, 22.
82. Paul Hoffman, Spain and the Roanoke Voyages, 28.
83. Karen Kupperman, Roanoke, 5-6, 88.
84. Irene Wright, Further English Voyages to Spanish America 1583-1592, 213; cf. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 204 note 4.
85. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 97.
86. Karen Kupperman, Roanoke, 5-6, 88; David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 99.
87. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98.
88. Irene Wright, Further English Voyages to Spanish America 1583-1592, 195, 197, 212; compare David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 202 note 3.
89. See Irene Wright, Further English Voyages to Spanish America 1583-1592, 54, 57-59.
90. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 200.
91. Irene Wright, Further English Voyages to Spanish America 1583-1592, 197; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 200-02.
92. Regarding the Frenchmen whom Drake liberated, a French report from the period mentions Drake’s attack on a Spanish galley and states that he liberated eighteen or nineteen Frenchmen who were among the galley slaves. It gives no indication of the numbers or identities of the other galley slaves. The report is valuable, however, because it gives an idea of how large the number of Frenchmen among the galley slaves was. Drake took two additional Frenchmen on board at St. Augustine. He reportedly encountered a French ship in the Caribbean and handed over ten of his rescued Frenchmen to be returned to France by it. This presumably happened before Drake
left Caribbean waters on his way to Roanoke, which would mean that he discharged a number of his French passengers before reaching that colony. What became of the remainder of the Frenchmen is not clear. See David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98, note 5: “Il y avoit au port une galère qui fut bruslée, et les esclaves qui estoient dedans, desquelz y avoit dix-huit ou dix-neuf François, mis en liberté” (Louis La Cour e la Pijardière, ed., Mémoire du voyage en Russie fait en 1586 par Jehan Sauvage, suivi de l’expédition de Fr. Drake en Amérique à la meme époque [Paris: Aubry, 1855], p. 23. Ten of the Frenchmen were brought back to Morlaix in a Norman vessel which accompanied Drake in the Caribbean (Julian Strafford Corbett, ed., Papers Relating to the Navy During the Spanish War, 1585-1586 [London: Navy Records Society, 1898], 95, 98; Irene Wright, Further English Voyages to Spanish America 1583-1592, 54, 52.
93. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 195.
94. Irene Wright, Further English Voyages to Spanish America 1583-1592, 195, 197, 212; compare David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian
Voyage,” 98; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 202 note 3.
95. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 200-02.
96. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 197.
97. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
98; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 197, 202.
98. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
98; Quinn’s source is Public Record Office, SP 12/189, 42, letter of Nicholas Clever to Nicholas Turner, merchant, 26 May 1586.
99. See David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 100; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 202 note 3; the Privy Council document is cited as P.R.O., P.C. 2/14: 169. Keeler puts the number of the Turks at two hundred. Apparently, she bases that number on the number given in
the ship’s journal above and not on a figure cited by the Privy Council itself.
100. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
102-03.
101. Irene Wright, Further English Voyages to Spanish America 1583-1592, 54, 52; compare
David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
102. Irene Wright, Further English Voyages to Spanish America 1583-1592, 54; David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98.
103. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98; Wright 159.
104. Compare Hernán Taboada, La sombra del Islam en la conquista de América, 115.
105. Irene Wright, Further English Voyages to Spanish America 1583-1592, 195, 197; compare David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98.
106. See Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 148.
107. The journal of a second ship in Drake’s fleet gives a parallel account of the surprise attack on Santo Domingo but mentions only a single Black who assisted Drake and his men and makes no mention of the two or three Moors. Although the reports appear contradictory, it may also be the case that the Black referred to in the second journal was a “Moor” who was black, a “Blackamoor.” Othello, the Moor in the service of the Venetian Republic in Shakespeare’s Othello, was a blackamoor, although he is also referred to as a Moor. A black Moor, however, would be more likely to be a North African rather than an Iberian Moor, since the latter were by and large ethnically Iberian. See Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 189 and note 3; Nabil Matar, Turks, Moors, and Englishmen, 8.
108. In Irene Wright, Further English Voyages to Spanish America 1583-1592, 195, 197,
212; compare David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian
Voyage,” 98; Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 202 note 3.
109. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
98; Wright 159.
40
110. Enclosures (anonymous) in Irene Wright, Further English Voyages to Spanish America
1583-1592, 150-53; 157-59.
111. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
99; Irene Wright, Further English Voyages to Spanish America 1583-1592, 204, 230.
112. Irene Wright, Further English Voyages to Spanish America 1583-1592, 195, 197; David
Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98.
113. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
98-99 and note 10.
114. Karen Kupperman, Roanoke, 13, 18; David Quinn, ed., The Roanoke Voyages,
1:246.
115. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
98, note 5.
116. See Oliver Rackham, The History of the Countryside (London: J. M. Dent, 1986), 24.
117. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 169; David Quinn, “Turks,
Moors, Blacks, and Others in Drake’s West Indian Voyage,” 98.
118. Irene Wright, Further English Voyages to Spanish America 1583-1592, 212.
119. Paul Hoffman, Spain and the Roanoke Voyages, 29.
120. David Quinn, ed., The Roanoke Voyages, 2:251-52.
121. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
122. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 97.
123. David Quinn, ed., The Roanoke Voyages, 2:723.
124. David Quinn, ed., The Roanoke Voyages, 2:722, 725.
125. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 202.
126. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 97.
127. David Quinn, ed., The Roanoke Voyages, 1:254.
128. David Quinn, The Lost Colonists, 7; Paul Hoffman, Spain and the Roanoke Voyages, 54-55; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 20.
129. Karen Kupperman, Roanoke, 93.
130. Mary Keeler, ed. Sir Francis Drake’s West Indian Voyage, 272-74; David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,” 100; Karen Kupperman, Roanoke, 89-90.
131. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
132. Karen Kupperman, Roanoke, 92.
133. David Quinn, The Lost Colonists, xvii.
134. David Quinn, The Lost Colonists, xvii.
135. David Quinn, ed., The Roanoke Voyages, 1:254-55.
136. David Quinn, “Turks, Moors, Blacks, and Others in Drake’s West Indian Voyage,”
137. Karen Kupperman, Roanoke, 141.
138. See Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 3-4, 25, 29; Karen Kupperman, Roanoke, 141; Gerald Sider, Lumbee Indian Histories, 3; Lew Barton, The Most Ironic Story in American History, xi; Jean Bible, Melungeons, 88; Karen Blu,
The Lumbee Problem, 42.
139. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25.
140. Karen Blu, The Lumbee Problem, 1, 43.
141. See N. Brent Kennedy, The Melungeons, 172-73.
142. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25, 41; Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Karen Blu, The Lumbee Problem, 40, 43.
143. N. Brent Kennedy, The Melungeons, 28-30; Elizabeth Hirschman, Melungeons, 1.
144. Karen Blu, The Lumbee Problem, 36.
145. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Jean
Bible, Melungeons, 90-91.
146. Karen Blu, The Lumbee Problem, 39.
147. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25, 41; Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Karen Blu, The Lumbee Problem, 42, 135; Gerald Sider, Lumbee Indian Histories, xvi, 3.
148. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; cites Swan M. Burnett in “Notes on the Melungeons” in American Anthropologist, vol. II, October 1889: 1; Wayne Winkler, Walking toward the Sunset, 4, 83, 86-87.
149. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Swan M. Burnett, “Notes on the Melungeons” in American Anthropologist, vol. II, October 1889 (cited in Hale and Merritt, 1:180); John Moore and Austin Foster, Tennessee, 1:791; Jean Bible, Melungeons, 5, 95-96, 85-86; Louis Davis, “The Mystery of the
Melungeons,” Nashville Tennessean, September 22, 1963: 16 (cited in Jean Bible, Melungeons, 5); Wayne Winkler, Walking toward the Sunset, 83, 86-87.
150. The controversial Simon Fernandes (Simão Fernandes), who was a Protestant, “gentleman,” and an expert Portuguese captain, navigator, and privateer, was among the most important and influential of the Roanoke pilots and was involved in all the Roanoke voyages. See Paul Hoffman, Spain and the Roanoke Voyages, 20; Karen
Kupperman, Roanoke, 20-21; Irene Wright, Further English Voyages to Spanish America 1583-1592, xxii-xxiii; David Quinn, The Lost Colonists, 6; John Humber, Backgrounds and Preparations for the Roanoke Voyages, 24. For the most exhaustive account of Fernandes, see David Quinn, “A Portuguese Pilot in the English Service,” in his England and the Discovery of America 1481-1620, 246-63.
151. Irene Wright, Further English Voyages to Spanish America 1583-1592, 212.
152. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25, 41; Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180.
153. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25; Karen Blu, The Lumbee Problem, 42, 135.
154. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 3, 25, 35; Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Jean Bible, Melungeons, 5, 38-39, 88, 90; Louis Davis, “The Mystery of the Melungeons,” Nashville Tennessean, September 22, 1963: 16 (cited in Jean Bible, Melungeons, 5); Karen Blu,
The Lumbee Problem, 37, 40, 44, 135; Brewton Berry, Almost White (New York: Macmillan & Co., 1963), 17-18.
155. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Wayne Winkler, Walking toward the Sunset, 4; Jean Bible, Melungeons, 7-8, 90-91; Karen Blu, The Lumbee Problem, 1.
156. John Moore and Austin Foster, Tennessee, 1:791; Jean Bible, Melungeons, 38-39; she cites Brewton Berry’s Almost White (New York: Macmillan & Co., 1963), 17-18.
157. Wayne Winkler, Walking toward the Sunset, 4.
158. Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 3, 25; Jean Bible, Melungeons, 38-39; she cites Brewton Berry’s Almost White (New York: Macmillan & Co., 1963),
17-18; Karen Blu, The Lumbee Problem, 40, 135.
159. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Wayne Winkler, Walking toward the Sunset, 4; Jean Bible, Melungeons, 7-8, 90-91; Karen
Blu, The Lumbee Problem, 1.
160. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Jean Bible, Melungeons, 7-8, 90-91; Karen Blu, The Lumbee Problem, 1.
161. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Wayne Winkler, Walking toward the Sunset, 4; Jean Bible, Melungeons, 7-8, 90-91; Karen
Blu, The Lumbee Problem, 1.
162. Gerald Sider, Lumbee Indian Histories, xvi.
163. John Moore and Austin Foster, Tennessee, 1:791; Hamilton McMillan, Sir Walter Raleigh’s Lost Colony, 25; Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180; Karen Blu, The Lumbee Problem, 1.
164. Gerald Sider, Lumbee Indian Histories, xvi.
165. Gerald Sider, Lumbee Indian Histories, 3.
166. Will Hale and Dixon Merritt, A History of Tennessee and Tennesseans, 1:180, 184; Jean Bible, Melungeons, 96-97.
167. Jean Bible, Melungeons, 88, 90; Karen Blu, The Lumbee Problem, 37, 44.
168. John Moore and Austin Foster, Tennessee, 1:791; Jean Bible, Melungeons, 95-96, 85-86; Louis Davis, “The Mystery of the Melungeons,” Nashville Tennessean, September 22, 1963: 16 (Cited in Jean Bible, Melungeons, 5).
169. John Moore and Austin Foster, Tennessee, 1 790-91; Elizabeth Hirschman, Melungeons, 18-19; Jean Bible, Melungeons, 11. Her marriage to a White Tennessean was contested on grounds that it violated state laws against miscegenation, since it was believed that Melungeons were part Black.
170. Jean Bible, Melungeons, 96.
171. James Guthrie, “Melungeons: Comparison of Gene Frequency Distributions,” 13, 15,17; Wayne Winkler, Walking toward the Sunset, 239-41.
Chico Science & Nação Zumbi – Todos Estão Surdos
Tim Maia – Ensaio 1992 – “Chocolate”
I had contact with this material posted on Short and curious site and I found very interesting, do not know the accuracy of the information, but it’s something that the simple call puts us to think. Why worship foreign gods – Europeans and Africans – but we forget our own native gods? Our delighted work with other garments and we do not even give value to them within the traditions. Follow some information on indigenous gods. |
Nhanderuvuçu |
Also known as Nhamandú, Yamandú or Nhandejara, it is regarded as the supreme god of the Tupi-Guarani mythology.Nhanderuvuçu has an anthropomorphic way, it is the energy that exists, has always existed and will exist forever, so Nhanderuvuçú there even before the universe exist. At first he destroyed everything that existed and then created the soul, which in Tupi-Guarani language is called "Anhang" or "Ana"; "GWEA" means old (a); so Anhangüera "añã’gwea" mean old soul. Nhanderuvuçú created the two souls, and the two souls (+) and (-) emerged "anhandeci" matter. Then he wished lakes, fog, mist and rivers. For all this, he created Iara, the goddess of lakes. Tupa then created that is who controls the climate, weather and the wind, Tupa manifests itself with lightning, thunder, lightning, winds and storms, it is Tupa who pushes the clouds across the sky. Nhanderuvuçú also created Caaporã (Caipora) the protector of forests alone born, and protector of animals living in the forests, fields, rivers, oceans, in short the protector of all living beings.
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Iara |
Goddess of the waters, also known as Iara, it is seen as a beautiful mermaid who lives in the depths of the Amazon River, of brown skin, long green hair and brown eyes.
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Abaçai |
It is the god of war, a kind of ‘Aries’ or ‘Mars’ of the natives. It is the warrior spirit that takes possession of the Indian who is preparing to bloody battles. So say those prepared for guera are "abaçaiados." Lost’s note: There is a music band from the state The Magic Theatre called Abaçaiado.
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Cove |
The goddess of fire of Tupi-Guarani mythology.
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Andura |
A fantastic and surreal tree, the night ignites suddenly looking like enough with the way in which the Judeo-Christian God communicates with His prophets.
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Chandoré |
God of Tupi-Guarani mythology. Seguing to legend, would have been sent to kill the evil Indian Pirarucu, who challenged Tupa, but failed because Pirarucu threw himself into the river. As punishment the Indian turned into a fish, which bears his name.
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Sumé |
Also known as zume, Pay Sumé or Tume, among other names, is the name of an ancient body of mythology of the Tupi peoples of Brazil whose description varied from tribe to tribe. Such an entity would have been among the Indians before the arrival of the Portuguese, and broadcast a series of knowledge such as agriculture, fire and social organization, and would be a kind of god of laws and rules. He was seen with yellow hair flying everywhere, and even sank beneath the waters of the sea, when he is gone. Sumé left two children, Tamandaré and Ariconte, which were very different and hated one another. Lost’s note: We did a post about this divinity blog: Father Sumé, the Guardian Spirit of Brazil .
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Rudá |
God’s Love, who lives in the clouds. His work is the awakening of love in the hearts of women. Equivalent to Hathor goddess of Egyptian mythology, Roman mythology Venus, and Aphrodite the Greek.
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Tupa |
It would be a kind of leader in tupinambá mythology, lord of thunder and storms. In simple analogy could be compared to the Greek god Zeus, or even the Norse god Thor, because he shares the same common explanation in the gods of ancient peoples for lightning. Tupa also has the characteristic of ubiquity, which is very common in Christian, Jewish and Islamic religions. The Jesuits at the time of colonization, broadcast an erroneous view that the thunder in sí would be an indigenous god, and in fact, it’s just the way used by Tupa to express themselves.
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Jaci |
The goddess of the moon and the night would be responsible for the magic and charm of men. It would have been created by Tupa to give beauty to earth. Sister Iara (Goddess of serene lakes), Jaci became wife of Tupa own. Other versions of the Indian mythology would say Jaci wife and / or sister Guaraci, the sun god. Jaci is equivalent to the Hindu Vishnu and Isis of Egypt.
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Guaraci (or Quaraci) |
Guaraci is the representation of the sun god, responsible for light, life and purity of the planet Earth, as well as Brahma (Hinduism) and Osiris (Egyptian).
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Yorixiriamori |
This god charmed women with their beautiful singing, which aroused the envy of the men who tried to kill him. So he fled to the sky in the form of a bird. It is a character from the famous myth "The singing tree", the Yanomami Indians.
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Anhangá |
The Jesuits spread the erroneous image that Anhangá would be the equivalent to the devil of the Christian religion, but Anhangá (meaning spirit) would be souls who roam the earth, it could take any form, but it would be seen as a deer with eyes fire. In addition, Anhangá would be the protector of animals, protecting them from hunters. When an animal escapes miraculously during a game, the Indians attribute this feat to Anhangá. Lost’s note: Anhangabaú is the name of a pipeline Ribeirão there in Sao Paulo, originally given as Anhangabahy or Anhangabahú, the Tupi meaning: "Rio’s evil spirit." The Indians said that those who drink such water was tormented by evil spirits.
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Jurupari |
Son of India Ceuci that after eating a forbidden fruit for young women in the fertile period (fruit mapati), miraculously became pregnant after the fruit juice streaming down her naked body. When the council of elders heard the story of Ceuci, she was punished with exile, where he had his son, named Jurupari sent the sun god Guaraci, which would have as its task to reformulate the customs and the way of life of men, which were submitted to women. Seen as the great Lawgiver, with 7 days of life already appeared 10 years old, and his wisdom attracted people who heard his teachings sent by the Sun God. In turn, the story told by the Jesuit assigns Jurupari to a kind of demon visit people’s dreams, giving rise to nightmares because the Jurupari ritual was the most practiced during the colonial period. The unique ritual for men, includes music with flutes, floggings, tobacco and coca and hallucinogens.
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Ceuci |
Goddess of agriculture and housing, represented by the brightest star in the Pleiades constellation. When on earth, was the mother of Jurupari, the envoy of the Sun / Guaraci, underwent the new method of patriarchal tribes. Women could not participate in the Jurupari rituals for the gods would kill the intruder. Once Ceuci with longing for his son approached him during a ceremonial, and that’s when she was struck by lightning, sent by Tupa. Jurupari, also son of the Sun, was sent to revive her, but he did not disobey the law of the gods. He calmed her saying he would shine in the sky, and find God Guaraci, and then, Jurupari cried. So when does the sun and rain at the same time, the Indians say that the spirit of Jurupari is around.
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Akuanduba |
A deity of macaws Indians, plays his flute to sustain and order to the world, representing the divine harmony.
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Wanadi |
God of iecuanas, is part of a myth that the sun would have created three living beings to inhabit the world. Only Wanadi was born perfect while the other two would be responsible for the evil in the world.
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Yebá beautiful |
Called "woman who appeared out of nowhere", is cited as responsible for the creation of mankind according to Dessanas. According to legend, would have molded men and women who chews coca leaves, ipadu calls.
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Caipora |
The caipora name comes from the Tupi-Guarani Caapora, and means "inhabitant of the woods." Caipora is represented by the form of a young Indian, covered by mounted and lives in a kind of pork-eating fox. He is the guardian of animal life. It is he who snaps branches, makes whistles and gives false clues to mislead the hunters. Legend has it that Caipora would be cannibalistic, feeding on everything and everyone who hunt in forests, punishing men, insects or even other animals. Caipora is responsible for punishing, especially those who hunt beyond the need.
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Tupi |
Primordial character of all Tupi people. The main ancestor that gave rise to all Indians. So many Tupi nations created their names as tributes to Tupi: tupinambás, tupiniquins, tupiminós, tupiguaés, etc …
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Pictures taken by: Debra Koffler
The log of Christopher Columbus's first voyage to the New World. Translated in 1903 by John Boyd Thacher. Meticulously scanned to text and proofed by Nathan Kennedy in 1998. Unfortunately, footnotes and commentary, italics, and accents were all lost.
(Literally Translated)
IN NOMINE D. N. JESU CHRISTI
Because, Most Christian and very exalted and very excellent and very powerful Princes, King and Queen of the Spains and of the Islands of the Sea, our Lords, in this present year of 1492 after your Highnesses had made an end to the war of the Moors, who were reigning in Europe, and having finished the war in the very great city of Granada, where in this present year on the 2nd day of the month of January, I saw the Royal banners of your Highnesses placed by force of arms on the towers of the Alhambra, which is the fortress of the said City: and I saw the Moorish King come out to the gates of the City and kiss the Royal hands of your Highnesses, and the hands of the Prince, my Lord: and then in that present month, because of the information which I had given your Highnesses about the lands of India, and about a Prince who is called Great Khan, which means in our Romance language, King of Kings,– how he and his predecessors had many times sent to Rome to beg for men learned in our Holy Faith that they might be instructed therein, and that the Holy Father had never furnished them, and so, many peoples believing in idolatries and receiving among themselves sects of perdition, were lost;–your Highnesses, as Catholic Christians and Princes, loving the Holy Christian faith and the spreading of it, and enemies of the sect of Mahomet and of all idolatries and heresies, decided to send me, Christopher Columbus, to the said regions of India, to see the said Princes and the peoples and lands, and learn of their disposition, and of everything, and the measures which could be taken for their conversion to our Holy Faith: and you ordered that I should not go to the east by land, by which it is customary to go, but by way of the west, whence until to-day we do not know certainly that any one has gone. So that, after having banished all the Jews from all your Kingdoms and realms, in the same month of January, your Highnesses ordered me to go with a sufficient fleet to the said regions of India: and for that purpose granted me great favours and ennobled me, that from then henceforward I might entitle myself Don and should be High Admiral of the Ocean-Sea and Viceroy and perpetual
Governor of all the islands and continental land which I might discover and acquire, and which from now henceforward might be discovered and acquired
in the Ocean-Sea, and that my eldest son should succeed in the same manner, and thus from generation to generation for ever after: and I started from the city of Granada on Saturday, the 12th day of the month of May in the same year 1492: I came to the village of Palos, which is a sea-port, where I fitted out three vessels, very suitable for a similar undertaking: and I left the said port, well supplied with a large quantity of provisions and with many seamen, on the 3rd day of the month of August in the said year on a Friday 3 at the half hour before sunrise, and took my way to the Canary Islands of your Highnesses, which are in the said Ocean-Sea, in order to set out on my voyage from there and sail until I arrived at the Indies, and make known the message of your Highnesses to those Princes, and fulfil the commands which had thus been given me: and for this purpose, I decided to write everything I might do and see and which might take place on this voyage, very punctually from day to day, as will be seen henceforth. Also, Lords and Princes, besides describing each night what takes place during the day, and during the day, the sailings of the night, I propose to make a new chart for navigation, on which I will locate all the sea and the lands of the Ocean-Sea, in their proper places, under their winds; and further, to compose a book and show everything by means of drawing, by the latitude from the equator and by longitude from the west, and above all, it is fitting that I forget sleep, and study the navigation diligently, in order to thus fulfil these duties, which will be a great labour.
— FRIDAY, AUGUST 3.
Friday, August 3, 1492, at 8 o'clock we started from the bar of Saltes: we went with a strong sea-breeze 60 miles, which are 15 leagues, toward the south, until sunset: afterwards to the south-west and to the south, quarter south-west, which was the way to the Canaries.
SATURDAY, AUGUST 4.
We went to the south-west, quarter south.
SUNDAY, AUGUST 5.
We went on our way, more than 40 leagues between day and night.
MONDAY, AUGUST 6.
The helm of the caravel Pinta, upon which was Martin Alonso Pinzon, broke or became disjointed: this was believed and suspected to have been caused by ones Gomes Rascon and Cristo hal Quintero, who owned the caravel, because that voyage was displeasing to them. The Admiral says that before he left, they had discovered the aforesaid men concerned in certain plots and intrigues, as they say. The Admiral was greatly disturbed there, on account of not being able to aid the said caravel without endangering himself his own vessel and says that he became less anxious from knowing that Martin Alonso Pinzon was a brave and intelligent person: finally, between day and night they went 29
leagues.
TUESDAY, AUGUST 7.
The helm of the Pinta again became disjointed and they repaired it and went in search of the island of Lanzarote, which is one of the Canary Islands, and they went 25 leagues between day and night.
WEDNESDAY, AUGUST 8.
The pilots of the three caravels differed in opinions as to where they were, and the Admiral came nearest to the truth and wished to go to the Grand Canary to leave the caravel Pinta, as she was getting into bad condition on account of the helm and was leaking and he wished to obtain another caravel there, if one could be found. They could not make the Grand Canary that day.
THURSDAY, AUGUST 9.
The Admiral was not able to reach Gomera until Sunday in the night, and Martin Alonso remained on that coast of the Grand Canary by order of the Admiral, because he was not able to navigate. Afterwards the Admiral reached Canaria (or Tenerife) and they repaired the Pinta very well, with much labour and great efforts on the part of the Admiral, Martin Alonso and the others: and finally they came to Gomera. They saw a great fire issue from the mountains of the island of Tenerife of which the greater part is very high. They made the sails of the Pinta round, as they were lateen sails. He returned to Gomera, Sunday, Sept 2, with the Pinta repaired.
The Admiral says that many honourable Spaniards, inhabitants of the island of Hierro, swore that they were on Gomera with Dofia Inez Peraza, mother of Guillen Peraza, who was afterward the first Count of Gomera, and that each year they saw land to the west of the Canaries {which is to the west} and others from Gomera affirmed the same thing under oath. The Admiral says here that he remembers that being in Portugal in the year 1484, a man came from the island of Madeira to the King to beg him for a caravel in order to go to this land I which he saw, which he swore he saw each year and always in the same manner: and he also says he remembers that the same was said in the Azores Islands, and that all were agreed as to the route, the appearance and size. Having then taken water and wood and meat, and the other things which the men had, whom the Admiral left on Gomera when he went to the Island of Canaria to repair the caravel Pinta, he finally set sail from the said island of Gomera with his three caravels on Thursday, Sept 6.
THURSDAY, SEPTEMBER 6.
He started on that day in the morning from the harbour of Gomera and took his course to go on his voyage: and the Admiral learned from a caravel which came from the island of Hierro, that three caravels from Portugal were sailing about there, in order to capture him: it must have been through the envy felt by the King of Portugal, because of the Admiral's going to Castile: and
he sailed all that day and night in a calm and in the morning found himself between Gomera and Tenerife.
FRIDAY, SEPTEMBER 7.
He was becalmed all Friday and Saturday until 3 o'clock at night.
SATURDAY, SEPTEMBER 8.
On Saturday at 3 o'clock in the night, the north-east wind commenced to blow, and he took his course and route to the west he had a heavy head sea, which obstructed his way; and he sailed that day and night about 9 leagues.
SUNDAY, SEPTEMBER 9.
He went 19 leagues that day and resolved to reckon less than he had gone, so that if the voyage should be a long one, his people would not be frightened and discouraged. During the night he went 120 miles which are 30 leagues, at the rate of 10 miles an hour. The sailors steered badly, falling off to the northeast quarter and even half of the quarter {a la media partida} about which the
Admiral many times reprimanded them.
MONDAY, SEPTEMBER 10.
During that day and night he went 60 leagues, at the rate of 10 miles an hour, which are 2 1/2 leagues: but he computed only 48 leagues, in order not to frighten the people if the voyage should be lengthy.
TUESDAY, SEPTEMBER 11.
That day they sailed on their way, which was to the west, and went 20 leagues and more, and they saw a large piece of a mast belonging to a ship of 120 tons burden, and they were not able to take it. That night–about 20 leagues, but he did not count more than 16 for the said reason.
WEDNESDAY, SEPTEMBER 12.
This day, pursuing his course, they went 33 leagues during the night and day,computing less for the said reason.
THURSDAY, SEPTEMBER 13.
This day and night, going on their way which was to the west, they went 33 leagues and computed 3 or 4 less. The currents were against them. On this day at the beginning of the night, the needles declined to the north-west, and in the morning they declined a trifle.
FRIDAY, SEPTEMBER 14.
During that day and night they sailed on their way to the west and went 20 leagues: he computed something less. Here the persons on the caravel Niña said they had seen a jay (garjao) and a ring-tail (rabo de junco) and these birds never go more than 25 leagues from land at most.
SATURDAY, SEPTEMBER 15.
He sailed that day and night 27 leagues upon his course to the west and somewhat more, and at the beginning of this night they saw a marvellous branch of fire fall from the heavens into the sea, 4 or 5 leagues distant from them.
SUNDAY, SEPTEMBER 16.
They sailed that day and night on their course to the west: they went 39 leagues but be computed only 36: there were some clouds that day and it rained slightly. The Admiral says here, that now and always from this time forward the air was extremely temperate, and that it was a great pleasure to
enjoy the mornings and that nothing was lacking except to hear nightingales. He says that the weather was like April in Andalusia. Here they began to see many tufts of very green grass, which according to appearance had not long been detached from the land, on which account every one judged they were
near some island: but not the continental land, according to the Admiral, who says, “because I make the continental land farther onward.”
MONDAY, SEPTEMBER 17.
He sailed on his way to the west, and they went 50 leagues and more during the day and night. He did not register more than 47. The current helped them. They frequently saw a great deal of grass and it was grass from rocks, and it came from the west. They judged that they were near land. The pilots took the position of the North Star, marking it, and they found that the needles declined to the north-west a good quarter, and the sailors were afraid and were troubled, and did not say for what reason. The Admiral knew it and ordered them to take the position of the North Star again at dawn and they found that the needles were good. This was because the star which appears, moves, and the needles do not. At dawn that Monday they saw much more grass, which appeared to be grass from rivers, in which they found a live craw-fish which the Admiral kept, and he says that those were sure indications of land because they are not found 80 leagues from land. They found the water of the sea less salt since they left the Canaries, the breezes always milder. They all became very joyful and the fastest ships went onward in order to be first to see land. They saw many tunny-fish {toninas} and the people on the Niña killed one. The Admiral Says here that those indications came from the west, “where I hope in that exalted God in whose hands are all victories that land will very soon appear.” This morning he says he saw a white bird which is called ringtail {rabo de junco} which is not accustomed to sleep on the sea.
TUESDAY, SEPTEMBER 18.
He sailed that day and night, and they went more than 55 leagues, but he only noted 48. All these days the sea was very calm, as in the River of Seville. This day Martin Alonso with the Pinta, which was a fast sailor, did not wait for the others because he said to the Admiral from his caravel, that he had seen a great number of birds go toward the west, and that night he hoped to see land, and for that reason he was sailing so fast. A large dark cloud appeared to the north, which is a sign that land is near.
WEDNESDAY, SEPTEMBER 19.
He sailed on his way and during the day and night went 25 leagues, because it was very calm: he wrote 22 leagues. This day at 10 o'clock a pelican
came to the ship and another came in the afternoon. These birds are not accustomed to go 20 leagues from land. There were slight rains without wind,
which is a certain indication of land. The Admiral did not wish to delay, beating about in order to find out if there was land, but he was sure that
toward the north and toward the south there were Some islands, as in fact there were, and he was going between them: because it was his desire to go
forward toward the Indies and the weather is pleasant; as, God pleasing, in returning, everything would be Seen. These are his words…Here the pilots
discovered their location. The Niña's pilot found himself 440 leagues from the Canaries. The Pinta's 420 leagues, and the pilot of the vessel, upon which was the Admiral, exactly 400.
THURSDAY, SEPTEMBER 20.
He sailed this day to the west, quarter north-west and half the quarter {a la media partida} because the winds changed many times with the calm they
went as much as 7 or 8 leagues. Two pelicans came to the ship, and afterwards another which was an indication that land was near: and they saw a great deal of grass, although the previous day they had not seen any. They took a bird with their hands which was like a jay: it was a river-bird and not a sea-bird and had feet like a gull. At dawn two or three small land birds came singing to the ships: and afterwards disappeared before sunrise. Afterwards a pelican came from the west-north-west and went to the south-east, which was an indication that it left land to the west-north-west, because these birds sleep on land and in the morning they go to the sea in search of food, and do not go 20 leagues from land.
FRIDAY, SEPTEMBER 21.
Most of that day it was calm, and afterwards there was some wind. They went on their way and during both the day and night did not make as much as 13
leagues. At dawn they found so much grass that the sea appeared to be coagulated with it and it came from the west. They saw a pelican. The sea was
very calm like a river and the breezes the best in the world. They saw a whale which is an indication that they were near land, because they always remain near it.
SATURDAY, SEPTEMBER 22.
They sailed west-north-west, more or less, inclining to one side and the other. They went about 30 leagues. They saw almost no grass. They saw some
petrels {pardelas} and another bird. The Admiral says here: “This contrary wind was very necessary to me, because my people were becoming very much
excited, as they thought that on those seas no winds blew in order to return to Spain.” For a part of the day there was no grass, afterwards it was very thick.
SUNDAY, SEPTEMBER 23.
He sailed to the north-west and at times to the north quarter and at times on his course, which was to the west, and they went as much as 22 leagues. They saw a turtle dove and a pelican, and another small river-bird and other white birds. There was a great deal of grass and they found craw-fish in it, and as the sea was calm and quiet the people murmured, saying that, since there was not much sea in that region, the wind would never blow for the return to Spain: but afterwards the sea rose greatly and without wind, which terrified them, because of which the Admiral says here: “So that the high sea was very necessary to me, as it came to pass once before in the time when the Jews went out of Egypt with Moses, who took them from captivity.”
MONDAY, SEPTEMBER 24.
He sailed on his course to the west day and night, and they went about 14 1/2 leagues. He noted 12. A pelican came to the ship and they saw many petrels.
TUESDAY, SEPTEMBER 25.
It was very calm this day and afterwards the wind blew: and they went on their course to the west until night. The Admiral talked with Martin Alonso Pinzon, Captain of the other caravel Pinta, in regard to a chart which he had sent to Martin Alonso on his caravel three days before, where, as it appears, the Admiral had drawn certain islands in that sea, and Martin Alonso said that they were in that region, and the Admiral replied that it appeared so to him: but since they had not encountered them, it must have been caused by the currents which had continually forced the ships to the north-east and because they had not gone as far as the pilots said: and then having arrived at this conclusion the Admiral told Martin Alonso to send him the said chart and it being sent by a cord the Admiral began to mark out places upon it with his
pilot and sailors. At sunset Martin Alonso mounted in the stern of his ship and with great joy called to the Admiral, begging a reward from him as he saw land: and when the Admiral heard him affirm this, he says that he commenced on his knees to give thanks to Our Lord, and Martin Alonso said Gloria in Excelsis Deo with his people: the Admiral's people did the same and the people on the Niña all ascended the mast and rigging: and all affirmed that it was land and it appeared so to the Admiral, and that it might be 25 leagues away. They all affirmed until night that it was land. The Admiral ordered that the course, which was to the west, should be changed and that they should all go to the south-west, where the land had appeared. That day they went to the west about 4 1/2 leagues; and during the night 17 leagues to the south-east which makes 21 leagues; although he told the people 13 leagues, because he always pretended to the people that he was making little headway, that the journey might not appear long to them. So that he wrote two courses for that voyage, the shorter was the false course and the longer the true one. The sea was very calm for which reason many sailors began to swim. They saw many dorados and other fish.
WEDNESDAY, SEPTEMBER 26.
He sailed on his course to the west, until after mid-day. Then they went to the south-west until they learned that what they had said was land was only the sky. They went 31 leagues during the day and night and he computed for the people 24. The sea was like a river, the breezes pleasant and very mild.
THURSDAY, SEPTEMBER 27.
He sailed on his course to the west, and went during the day and night 24 leagues: he told the people 20 leagues: they saw many dorados, killed one and
saw a ring-tail.
FRIDAY, SEPTEMBER 28.
He sailed on his course to the west. They went in a calm, 14 leagues during the day and night. He computed 13. They found little grass. They took two
dorados and more were taken on the other ships.
SATURDAY, SEPTEMBER 29.
He sailed on his course to the west. They went 24 leagues and he told the people 21. Because of calms which befell them they went only a short distance during the day and night. They saw a bird which is called a frigate-pelican which makes the pelicans yield up what they have eaten in order to eat it himself, and obtains his sustenance in that manner only. It is a sea-bird but does not rest on the sea nor go 20 leagues from land. There are many of these birds on the Cape Verde Islands. Afterwards they saw two pelicans. The breezes were very pleasing and delightful and he says that only the song of the nightingale was lacking: and the sea was smooth as a river. In three times afterwards three pelicans appeared and a frigate-pelican. They saw a great deal of grass.
SUNDAY, SEPTEMBER 30.
He sailed on his course to the west, and went 14 leagues during the day and night on account of the calms. He counted 11. Four ring-tails came to the ship, which is a great indication of land, because so many birds of one kind together is a sign that they are not astray or lost. They saw four pelicans in two different times and much grass. Nota: that “the stars which are called the guards when night falls are near the arm in the west, and at dawn they are on the line below the arm to the north-east, as it appears that during all the night they do not go more than three lines, which are nine hours, and this each night.” The Admiral says this here. Also at nightfall the needles decline to the north-west one quarter, and at dawn they are exactly in the direction of the North Star: by which it appears that the North Star moves the same as the other stars and the needles always indicate the truth.
MONDAY, OCTOBER 1.
He sailed on his course to the west. They went 25 leagues and he computed to the people 20 leagues. They had a great shower. To-day the pilot of the
Admiral at the coming of day feared that they had gone from the island of Hierro, 578 leagues westward to this place. The lesser account which the
Admiral showed to the people was 584 leagues; but the true account, which the Admiral judged to be correct and kept secret, was 707 leagues.
TUESDAY, OCTOBER 2.
He sailed on his way to the west 39 leagues during the day and night, and told the people about 30 leagues; with the sea continually calm and favourable. Many thanks be given God, said the Admiral here. Grass came from the east to the west, contrary to what had happened before. Many fish appeared: one was killed. They saw a white bird which appeared to be a gull.
WEDNESDAY, OCTOBER 3.
He sailed on his customary route and they went 47 leagues. He told the people 40 leagues. Petrels appeared, a great quantity of grass, some very old and some very fresh, and it bore a kind of fruit, and they saw 110 birds. The Admiral believed that the islands he had drawn on his chart lay back of them. The Admiral says here, that he did not wish to remain beating about, the past week and those days when there were so many signs of land, although he had information about certain islands in that region,–in order not to be delayed, as his object was to reach the Indies: and if he had delayed, he says it would not have been good judgment.
THURSDAY, OCTOBER 4.
He sailed on his way to the west and they went during the day and night 63 leagues. He told the people 46 leagues. More than 40 petrels came to the ship together, and two pelicans, and a youth on board the caravel hit one with a stone. A frigate-pelican came to the vessel and a white bird like a gull.
FRIDAY, OCTOBER 5.
He sailed on his course, going about 11 miles an hour. They went about 57 leagues during the day and night, as the wind abated somewhat at night. He
counted to his people 45 leagues. The sea was pleasant and calm. Many thanks, he says, be given to God. The breeze was very soft and temperate. No grass, many petrels. Many flying-fish flew on to the ship.
SATURDAY, OCTOBER 6.
He sailed on his course to the west and they went 40 leagues during the day and night. He told the people 33 leagues. This night, Martin Alonso said that it would be well to sail to the south-west, quarter west {a la cuarta del Oueste, a la parte del Sudueste}. And it appeared to the Admiral that Martin Alonso did not say this in order to go to the island of Cipango. And the Admiral saw that if they missed their way, they would not be able to find land so quickly, and that it was better to go to the continental land at once, and afterwards to the islands.
SUNDAY, OCTOBER 7.
He sailed on his way to the west. They went 12 miles per hour for two hours, and afterwards 8 miles per hour, and they went 23 leagues up to one hour after sunrise: he told the people 18. On this day at sunrise, as they were all sailing as fast as possible in order to see land first and enjoy the reward which the Sovereigns had promised to whomever should first see land, the caravel Niña which was ahead on account of being a fast sailor, raised a banner on top of the mast and fired a lombard as a signal that they saw land, because the Admiral had ordered this to be done. He had also ordered that the vessels should all unite at sunrise and sunset, because these two times are more suitable for seeing a long distance on account of the disappearance of the mists. As in the afternoon the people on the Niña did not see land, which they thought they had seen and as a great multitude of birds passed from the north to the south-west, for which cause it was reasonable to believe that they were going to sleep on land or were perhaps flying from winter which must be approaching in the countries from whence they came, as the Admiral knew that the Portuguese discovered the greater part of the islands in their possession by the birds:–For these reasons the Admiral resolved to change his course from the west, and turn his prow to the west-south-west, with the determination of pursuing that course for two days. He began this course one hour before sunset. During all the night they went about 5 leagues, and 23 during the day: they went in all 28 leagues during the night and day. MONDAY, OCTOBER 8.
He sailed to the west-south-west and they went about 11 1/2 or 12 leagues and
from time to time it appears that they went 15 miles per hour during the night, if the account is not mendacious. The sea was like the River of Seville, thanks
to God, says the Admiral. The breezes were very soft as at Seville in April and it is a pleasure to be there, they are so fragrant. The grass appeared very fresh. There were many small land-birds and they took one which was flying to the south-west. There were jays, ducks, and a pelican.
TUESDAY, OCTOBER 9.
He sailed to the south-west and went five leagues. The wind changed and he ran to the west, quarter north-west and went four leagues. Afterwards in all he went 11 leagues by day and 20 1/2 leagues by day and night. He told the people 17 leagues. All night they heard birds passing.
WEDNESDAY, OCTOBER 10.
He sailed to the west-south-west and they went at the rate of 10 miles per hour and at times 12, and sometimes 7, and during the day and night they made 59 leagues. He told the people 44 leagues and no more. Here the people could no longer suffer the journey. They complained of the long voyage: but the Admiral encouraged them as well as he was able, giving them good hope of the benefits they would receive, and adding that for the rest it was useless to complain since he had come in search of the Indies, and thus he must pursue his journey until he found them, with the aid of our Lord.
THURSDAY, OCTOBER 11.
He sailed to the west-south-west. They had a much higher sea than they had had in all the voyage. They saw petrels and a green branch near the ship. Those on the caravel Pinta saw a reed and a stick and they took another small stick formed as it appeared with iron, and a piece of a reed and other grass which grows on land, and a small board. Those on the caravel Niña also saw other indications of land and a little branch full of dog-roses. With these signs every one breathed and rejoiced. They went 27 leagues during this day up to sunset.
After sunset he sailed on his first course to the west. They went 12 miles each hour and up to two hours after midnight they went about 90 miles which are 22 1/2 leagues. And because the caravel Pinta was the best sailor and was going ahead of the Admiral, land was discovered by her people and the signs which the Admiral had ordered were made. A sailor called Rodrigo de Traina saw this land first, although the Admiral at 10 o'clock at night being in the stern forecastle {castillo de popa} saw a light, but it was so concealed that he would not declare it to be land: but he called Pero Gutierrez Groom of the Chamber of the King, and said to him that it appeared to be a light, and asked him to look at it: and he did so and saw it. He also told Rodrigo Sanchez de Segovia, whom the King and Queen sent with the fleet as Inspector, who saw nothing because he was not where he could see it. After the Admiral told it, it was seen once or twice, and it was like a small wax candle which rose and fell, which hardly appeared to be an indication of land. But the Admiral was certain that they were near land. For this reason, when they said the Salve which all the sailors are in the habit of saying and singing in their way and they were all assembled together, the Admiral implored and admonished them
to guard the stern forecastle well and search diligently for land and said that to whomever should first see land he would then give a silk doublet, besides the other gifts which the Sovereigns had promised them, which was an annuity of 10,000 maravedis to whomever should first see land. At two hours after midnight the land appeared, from which they were about two leagues distant. They lowered all the sails and remained with the cross-jack-sail, which is the great sail without bonnets, and lay to, standing off and on until the day, Friday, when they reached a small island of the Lucayas, which is called in the language of the Indians, Guanahani. Then they saw naked people and the Admiral landed in the armed boat with Martin Alonso Pinzon and Vincente Yafiez, his brother, who was captain of the Niña. The Admiral took the royal banner and the two captains had two banners of the Green Cross, which the Admiral carried on all the ships as a sign, with an F. and a Y. The crown of the Sovereigns surmounted each letter and one was one side of the + and the other the other side. Having landed they saw very green trees and much water and many fruits of different kinds. The Admiral called the two captains and the others who landed and Rodrigo Descoredo, Notary of all the Fleet, and Rodrigo Sanchez of Segovia, and told them to hear him witness and testify that he, in the presence of them all, was taking, as in fact he took possession of the said isle, for the King and for the Queen, his Lords, making the protestations which were required, as contained more at length in the depositions which were made there in writing. Then many of the people of the island gathered there. The following is in the exact words of the Admiral in his book of his first voyage and discovery of these Indies:
“That they might feel great friendship for us {he says} and because I knew they were a people who would better be freed and converted to our Holy Faith by love than by force,–I gave them some red caps and some glass beads which they placed around their necks, and many other things of small value with which they were greatly pleased, and were so friendly to us that it was wonderful. They afterwards came swimming to the two ships where we were, and bringing us parrots and cotton thread wound in balls and spears and many other things, and they traded them with us for other things which we gave them, such as small glass beads and hawk's bells. Finally they took everything and willingly gave what things they had. Further, it appeared to me that they were a very poor people, in everything. They all go naked as their mothers gave them birth, and the women also, although I only saw one of the latter who was very young, and all those whom I saw were young men, none more than thirty years of age. They were very well built with very handsome bodies, and very good faces. Their hair was almost as coarse as horses' tails and short, and they wear it over the eyebrows, except a small quantity behind, which they wear long and never cut. Some paint themselves blackish, and they are of the colour of the inhabitants of the Canaries, neither black nor white, and some paint themselves white, some red, some whatever colour they find: and some paint their faces, some all the body,
some only the eyes, and some only the nose. They do not carry arms nor know what they are, because I showed them swords and they took them by the edge and ignorantly cut themselves. They have no iron: their spears are sticks without iron, and some of them have a fish's tooth at the end and others have other things. They are all generally of good height, of pleasing appearance and well built: I saw some who had indications of wounds on their bodies, and I asked them by signs if it was that, and they showed me that other people came there from other islands near by and wished to capture them and they defended themselves: and I believed and believe, that they come here from the continental land to take them captive. They must be good servants and intelligent, as I see that they very quickly say all that is said to them, and I believe that they would easily become Christians, as it appeared to me that they had no sect. If it please our Lord, at the time of my departure, I will take six, of them from here to your Highnesses that they may learn to speak. I saw no beast of any kind except parrots on this island.” All are the words of the Admiral.
SATURDAY, OCTOBER 13.
“At dawn many of these men came to the shore, all young men as I have said and all of good height, a very handsome people. Their hair is not curly but hanging and coarse like horsehair, and all the forehead and head is very wide, more than any other race seen until now, and their eyes are very handsome and not small. And none of them are blackish hut the colour of the inhabitants of the Canaries nor should anything else be expected since this place is on a line east and west with the island of Hierro in the Canaries. Their legs are in general very straight and they are not corpulent, but very well formed. They came to the ship with canoes, which are made from the trunk of a tree, like a long boat and all in one piece, and very wonderfully fashioned for the country, and large enough so that 40 or 45 men came In some of them, and others were smaller, some so small that only one man came in them. They rowed with a paddle {como de fornero} and go wonderfully well; and if they upset, then they all commence to swim and bail them out with gourds, which they carry. They brought balls of spun cotton and parrots and spears and other small things which it would be tedious to write about, and gave everything for whatever might be given them. And I was attentive and sought to learn whether they had gold and I saw that some of them wore a small piece suspended from a hole they have in the nose: and I was able to understand by signs that, going to the south or going around the island to the south, there was a King who had large vessels of gold and who had a great deal of it. I tried to have them go there and afterward saw that they were not interested in going. I determined to wait until afternoon of the next day and then leave for the south-west, for according to what many of them showed me, they said that there was land to the south and to tile south-west and to the north-west: and that these people from the north-west came to fight them many times and thus to go to the south-west in search of gold and precious stones. This island is very large and
very level and has very green trees and many waters and a very large lake in the centre, without any mountain, and all so green that it is a pleasure to behold it. The people are very mild and on account of desiring our things, believing that they will not be given them without they give something, and they have nothing,–they take what they can. and then throw themselves into the water and swim. But they give all they have for whatever thing may be given them. They traded for even pieces of pitchers and broken glasses so that I saw 16 balls of cotton given for three ceotis of Portugal which are worth one blanca of Castile, and in the balls there would be more than an arroba of spun cotton. I forbade this and would not allow anything to be taken unless I should order everything taken for your Highnesses if there is a quantity. It cotton grows here on this island, but on account of brevity of time I could not give an account of everything: and also the gold which they wear hanging at the nose is found here. But in order not to lose time I wish to go and see it I can encounter the island of Cipango. Now, as it was night, all went to land with their canoes.
SUNDAY, OCTOBER 14.
“At dawn, I ordered the ship's small boat prepared and the boats belonging to the caravels and went along the island toward the north-north- east to see the other part of it, which was the opposite part from the east and also to see the villages: and I saw then two or three, and the people all came to the shore calling us and giving thanks to God; some brought us water, others brought other things to eat. Others when they saw that I did not care to land threw themselves into the sea and came swimming and we understood that they asked us if we came from heaven. An old man came in to the boat and the others called loudly to all the men and women: Come and see the men who came from heaven: bring them something to eat and drink. Many came and many women, each one with something, giving thinks to God, throwing themselves on the ground and lifting their hands toward heaven, and afterwards they called loudly to us to go to land; but I was afraid because of seeing a great reef of rocks which encircles all that island and the water is deep within and forms a port for as many ships as there are in Christendom: and the entrance to it is very tortuous. It is true there are some shoals in it, but the sea does not move any more than in a well. And I went this morning in order to see all this, that I might be able to give an account of everything to your Highnesses and also to see where I might be able to build a fortress, and I saw a piece of land formed like an island, although it is not one, on which there were six houses, but which could be made an island in two days. Although I do not believe it to be necessary, because this people are very simple in matters of arms, as your Highnesses will see by the seven which I took captive to be carried along and learn our speech and then be returned to their country. But when your Highnesses order it, all can be taken, and carried to Castile or held captives on the island itself, because with 50 men all can be subjugated and made to do everything which is desired. Then, near the said
small island, there were orchards of trees, the most beautiful that I saw, and as green and with leaves like those of Castile in the months of April and May, and there was much water. I saw all that harbour and afterward I returned to the ship and made sail and saw so many islands that I could not decide which to visit first, and those men whom I had taken, told me by signs, that there were many, and so many that they could not be numbered, and they enumerated by their names more than one hundred. Therefore I looked for the largest and determined to go to it, and this I am doing. It may be five leagues distant from this island of San Salvador, and some of the others are farther from it, some not as far. All are very level without mountains and very fertile and all inhabited, and the inhabitants make war against each other although they are very simple and fine looking men.”
MONDAY, OCTOBER 15.
“I had been standing off and on this night for fear of not reaching land to anchor before morning, not knowing whether the coast was free from shoals or not, and so as to be able to hoist the sails at dawn. And as the island might be more than five leagues distant, rather it was about seven leagues, and the tide detained me, it was about mid-day when I reached the said island; and I found that the side which is toward San Salvador runs north and south a distance of five leagues, and the other side which I followed extended east and west a distance of more than ten leagues. And as from this island I saw another larger one to the west, I hoisted the sails in order to go all that day until night, because I would not have been able to go even as far as the point at the west: to this island I gave the name of the Isla de Santa Maria de la Concepcion, and almost at sunset I anchored near the said Cape to learn if there was gold there, because the natives whom I had caused to be taken on the island of San Salvador told me that the people there wore very large golden bracelets on the legs and arms. I quite believe that everything they said was a hoax in order to flee, Nevertheless my intention was, not to pass by any island of which I did not take possession, although having taken one, it could not be said that all were taken: and I anchored and remained there until to-day, Tuesday, when at dawn I went to land with the boats armed and I landed, and those people, who were many and as naked and of the same condition as those of the other island of San Salvador, allowed us to go on the island and gave us what we asked of them. And because the wind blew across strongly from the south-east, I would not remain there and left for the ship, and there was a large canoe beside the caravel Niña and one of the men from the island of San Salvador who was on board the caravel threw himself into the sea and went away in the canoe, and the night before at midnight, the other having thrown {blank in original} and went after the canoe, which fled {a medio echado el otro…y fue atras la almadia, la qual fugoi} so that there never was a boat which could overtake it, although we followed it a long way. Nevertheless he gained the land and they left the canoe, and some of my company went on land after them and all scattered like chickens, and we took the canoe which they had left, alongside
the caravel Niña, where already there was coming from another point another small canoe with a man who came to barter a ball of cotton; and some sailors threw themselves into the sea and took him, because he would not enter the caravel: and I, being on the poop of the ship, saw everything and sent for him and gave him a red bonnet and some small beads of green glass which I put on his arm and two hawk's bells, which I put in his ears, and I ordered his canoe, which also was in the boat, to be returned to him and I sent him to land: and I made sail then in order to go to the other large island which I saw to the west, and I ordered the other canoe, which the caravel Niña was towing at the stern, to be loosened and I afterwards watched the shore at the time of the landing of the other Indian to whom I had given the aforesaid things and from whom I did not take the ball of cotton, although he wished to give it to me: and all the others went to him and he wondered greatly and it appeared to him that we were very good people and that the other Indian who had fled had done us some injury, and that we were taking him on this account: and it was for this purpose that I pursued this conduct with him and ordered him set at liberty and gave him the said things, in order that they should hold us in this esteem and that another time when your Highnesses send here again they may not receive your people badly: and all that I gave them was not worth four maravedis. And thus I departed, which might be at 10 o'clock, with the wind south-east and inclining toward south, in order to go to this other island which is very large and where all these men whom I am bringing from the island of San Salvador make signs that there is a great deal of gold and that they wear bracelets of it on their arms and on their legs and in their ears and in their noses and on their breasts. And it was nine leagues from this island of Santa Maria to this other island east to west, and all this part of the island runs north-west to south-east. And it appears that there might well be more than 28 leagues of this coast on this side. And it is very level without any mountain, the same as the coasts of the islands of San Salvador and Santa Maria and all the coasts are free from rocks, except that all have some rocks under water near the land, on account of which it is necessary to keep the eyes open when desirous of anchoring, and not to anchor very near land, although the waters are always very clear and the bottom can be seen. And at a distance of two lombard shots from all those islands the water is so deep that the bottom cannot be reached. These islands are very green and fertile and the breezes are very soft and there may be many things which I do not know, because I did not wish to stop, in order to discover and search many islands to find gold. And since these people make signs thus, that they wear gold on their arms and legs,–and it is gold, because I showed them some pieces which I have,–I cannot fail with the aid of our Lord, in finding it where it is native. And being in the middle of the gulf between these two islands, that is to say, the island of Santa Maria and this large one, which I named Fernandina, I found a man alone in a canoe who was going from the island of Santa Maria to Fernandina, and was carrying a little of his bread which might have been about as large as
the fist, and a gourd of water, and a piece of reddish earth reduced to dust and afterwards kneaded, and some dry leaves I which must be a thing very much appreciated among them because they had already brought me some of them as a present at San Salvador: and he was carrying a small basket of their kind, in which he had a string of small glass beads and two blancas, by which I knew that he came from the island of San Salvador, and had gone from there to Santa Maria and was going to Fernandina. He came to the ship: I caused him to enter it, as he asked to do so, and I had his canoe placed on the ship and had everything which he was carrying guarded: and I ordered that bread and honey be given him to eat and something to drink. And I will go to Fernandina thus and will give him everything which belongs to him, that he may give good reports of us. So that, when your Highnesses send here, our Lord pleasing, those who come may receive honour and the Indians will give them of everything which they have.”
TUESDAY, OCTOBER 16.
I started from the islands of Santa Maria de la Concepcion when it was already about noon, for the island of Fernandina, which appears to be very large and is to the west, and I navigated all that day in a calm: I was not able to arrive in time to see the bottom in order to anchor in a clear place, because it is necessary to take great pains about this so as not to lose the anchors: and so I stood off and on all this night until day when I came to a village, where I anchored, and at which that man whom I found yesterday in the canoe in the middle of the gulf had arrived. He had given such good reports of us that all this night there was no lack of canoes alongside the ship, as the Indians brought us water and everything which they had. I ordered something given to each one of them, that is to say some little beads, 10 or 12 of them of glass on a thread, and some brass timbrels of the kind which are worth a maravedi each in Castile, and some leather straps, all of which they consider of the greatest excellence, and also ordered molasses to be given them that they might eat when they came on the ship: and then at the hour of tercia I sent the ship's small vessel on land for water, and they very willingly showed my people where the water was, and they themselves brought the barrels full to the vessel, and were very greatly rejoiced to give us pleasure. This island is very large and I have determined to sail around it, because according to what I can understand, in it or near it there are mines of gold. This island is eight leagues distant from the island of Santa Maria, almost east by west: and this point to which I came and all this coast extends north-north-west by south- south-east and I saw fully 20 leagues of it, but it did not end there. Now while writing this, I made sail with the wind from the south in order to endeavour to sail around all the island, and work until I find Samoat, which is the island or city where the gold is, as all those Indians who come here on the ship, say: and as those Indians from the island of San Salvador and Santa Maria told us. The people of Fernandina are similar to those of the said islands, and have the same language and customs, except that these appear to me to be somewhat
more domestic, of better manners and more subtle, because I see that they have brought cotton here to the ship and other little things for which they know better how to exact payment than the others: and also on this island I saw cotton cloths made like head-dresses {mantillas} and the people are better disposed and the women wear in front a little piece of cotton which barely covers their genital parts. This island is very green and level and fertile, and I have no doubt that panic-grass {panizo} may be sown and harvested all the year, and also all other things: and I saw many trees very different from ours and among them many which had branches of many kinds and all from one trunk, and one little branch is of one kind and another of another kind and so different that it is the greatest wonder in the world, how great is the difference between one kind and another. For example, one branch had leaves like canes, and another like mastich-trees: and thus, on one tree alone, there are five or six of these kinds, and all are different: neither are they grafted, that it may he said that grafting does it; moreover are they found upon the mountains. Neither do these people take any care of them. They do not know any sect and I believe that they would very soon become Christians because they possess very good intelligence. There are fish here so different from ours that it is wonderful. There are some formed like cocks of the finest colours in the world, blue, yellow, red and of all colours, and others tinted in a thousand manners: and the colours are so fine that there is not a man who does not wonder at them, and who does not take great pleasure in seeing them. Also there are whales. I saw no beasts on land of any kind except parrots and lizards. A boy told me that he saw a large snake. I did not see sheep nor goats, nor any other beast; although I have been here a very short time, as it is mid-day, still if there had been any, I could not have missed seeing some. I will write about the circuit of this island after I have sailed around it.”
WEDNESDAY, OCTOBER 17.
“At noon I started from the village where I was anchored and where I took water, in order to go and sail around this island of Fernandina, and the wind was south-west and south: and as my wish would be to follow this coast of this island where I was, to the south-east, because it extends thus all north-north- west and south-south-east: and I wished to follow the said course of the south and south-east, because,–in that region, according to these Indians I am bringing and another from whom I had indications,–in that region of the south is the island which they call Samoet, where gold is found. And Martin Alonzo Pinzon, captain of the caravel Pinta, upon which I sent three of these Indians, came to me and told me that one of them had very positively given him to understand that he would more quickly sail around the island in the direction of the north-north-west. I saw that the wind was not helping me on the course I wished to follow and was favourable for the other. I made sail to the north-north-west and when I was near the point of the island, at a distance of two leagues, I found a very wonderful harbour with one mouth: although it can be called two mouths because it has an island in the centre. And these
mouths are both very narrow and the harbour is wide enough within for 100 ships, if it were clear and deep, and deep enough at the entrance. It appeared to me right to examine it well and sound it, and thus I anchored outside of it and entered it with all the boats belonging to the ships and we saw that it was not deep. And because I thought when I saw it that it was the mouth of some river, I had ordered barrels brought in order to take water, and on land I found some eight or ten men who immediately came to us and showed us the village near there, where I sent the people for water, one part with arms, others with barrels, and so they took it: and because it wasn't a little distance, I was detained for the space of two hours. During this time I walked among those trees, which was a more beautiful thing to see than any other I had ever seen: seeing so much verdure in such condition as it is in the month of May in Andalusia, and the trees were all as different from ours as day from night and also the fruits and grasses and the stones and all the things. It is true that some trees were of the same nature as those which are in Castile, although there was a very great difference, and there were so many other trees of other kinds that there is no one who can identify them or compare them to those in Castile. All the people were the same as the others already spoken of, of the same condition, naked in the same manner and of the same stature and they gave what they had for whatever thing we might give them: and here I saw that some of the ship's boys bartered spears for some worthless little pieces of broken porringers and glass, and the others who went for the water told me how they had been in the houses of the Indians and that they were very well swept and clean within, and their beds and coverings were of things which are like nets of cotton. Their houses are all like tents and are very high with good chimneys: but I did not see any village among many which I saw, which had more than 12 to 15 houses. Here they found that the married women wore breech-cloths of cotton and the young girls none, except some who were already eighteen years of age. And there were dogs here, mastiffs and lap-dogs {blanchetes} and they found an Indian here who had a piece of gold in his nose, which might be as large as half a castellano, on which they saw letters. I scolded them because they did not trade with him for it, and give him whatever he demanded in order to see what it was, and whose money it was: and they replied to me that he did not dare to exchange it with them. After having taken the water, I returned to the ship and made sail and went to the north-west, so far that I discovered all that part of the island as far as the coast which extends east and west, and then all these Indians said again that this island was smaller than the island of Samoet, and that it would be well to return backward in order to reach it more quickly. There the wind calmed and then commenced to blow west-north-west, which was contrary for our return to the place whence we had come, and so I returned and navigated all the past night to the east-south-east and sometimes to the east altogether and sometimes to the south-east. And I did this in order to get away from the land because it was very dark and cloudy and the weather was very threatening.
The wind was light and did not allow me to reach land in order to anchor. Therefore this night it rained very hard from midnight almost until day, and it is yet cloudy and ready to rain: and we are at the point of the island on the south-eastern side where I hoped to anchor until the weather clears, in order to see the other islands to which I must go: and so it has rained a little or a great deal every day since I have been in these Indies. Your Highnesses may believe that this land is most fertile and temperate and level and the best there is in the world.”
THURSDAY, OCTOBER 18.
“After the weather cleared I followed the wind and went around the island
when I was able, and anchored when the weather was not suitable to navigate: but I did not land, and at dawn I made sail.”
FRIDAY, OCTOBER 19.
“At dawn I weighed the anchors and sent the caravel Pinta to the east and south-east and the caravel Niña to the south-south-east, and I, with the ship went to the south-east, having given orders that both should follow that course until mid-day, and then that both should change their courses and seek me: and then, before three hours had passed, we saw an island to the east towards which we directed ourselves, and all three ships reached it at the northern point before mid-day, where there is a rocky islet and a reef outside of it to the north, and another between it and the large island: The men from San Salvador whom I am carrying, named this island Saomete, and I named it Isabella. The wind was north and the said rocky islet was in the course of the island of Fernandina, from whence I had sailed east by west. And the coast of Isabella then extended from the rocky islet to the west 12 leagues, as far as a cape which I called the Cabo Hermoso, which is on the western side: and thus it is beautiful, round and very prominent with no shoals outside of it and at the point it is rocky and low, and farther inland there is a sandy beach, as is almost all the said coast: and I anchored here this night, Friday, until morning. All this coast and the part of the island which I saw, is almost all a beach and the island is the most beautiful thing I ever saw: for if the others are very beautiful, this is more so: it has many very green and very large trees: and the land is higher than that of the other islands which have been found. And on it there are some hillocks which cannot he called mountains, but which beautify the rest, and there appear to be many waters yonder in the centre of the island. From this side to the north-east there is a large point and there are many large thick groves. I wished to go and anchor at this point in order to land and see such a beautiful place: hut the water was shallow and I could not anchor except quite a way from land and the wind was very favourable for me to come to this cape, where I now anchored, and which I named Cabo Hermoso {Cape Beautiful} for such it is: and so I did not anchor at that point and also because I saw this cape from yonder, so green and so beautiful like all the other things and lands of these islands, so that I do not know where to go first: neither do my eyes weary of seeing such beautiful verdure so different
from ours, and also I believe that there are here many herbs and trees, which are of great value in Spain for dyeing, for medicines and for spices, but I do not know them, which troubles me greatly. And on reaching this cape there came such a soft, sweet smell of flowers or trees from the land, that it was the sweetest thing in the world. In the morning before leaving here I will go on land to see what is here at this cape. There is no village except farther inland where these men I am bringing with me, say the King is and that he wears a great deal of gold. And in the morning I wish to go far enough to find the village and see or talk with the King, for according to the signs made by these Indians, he rules all these neighbouring islands and is clothed and wears a great deal of gold upon his person; although I do not put much faith in their sayings, as much because I do not understand them well, as because of knowing them to he so poor in gold that whatever small quantity this King wears it appears a great deal to them. This cape which I call Cabo Fermoso, I believe is an island apart from Saometo, and even that there is another small one midway between. I do not care to see so much thus in detail, because I could not do that in 50 years, and because I wish to go and discover the most that I can, in order to return to your Highnesses, God willing, in April. It is true that if I find where there is a quantity of gold or spices, it will detain me until I obtain as much as possible of them: and on this account I am not doing other than to go in search of them.”
SATURDAY, OCTOBER 20.
“To-day at sunrise, I weighed anchors from where I was anchored with the ship at this island of Saometo at the south-west cape which I named the Cabo de la laguna, as I had named the island Isabella, to navigate to the north-east and to the east from the south-eastern and southern part {of the island}, where, as I heard from these men I have with me, there was a village and also the King of the island: and I found all the water so shallow that I could not enter or sail to it, and I saw that by following the south-west route it would be a very large detour, and for this reason I determined to return by the north- north-east on the western side, the way I had come, and sail around this island in order to {lacuna: perhaps reconocerla–reconnoitre}. The wind was so light that I never could coast along the land except in the night: and as it is dangerous to anchor among these islands except in the daytime, when the eves can see where the anchor is thrown, because the bottom is all unequal, one spot suitable and another not,–I began to stand off and on all this Sunday night. The caravels anchored because they reached land early, and they thought that with the signals which they were accustomed to make, I would go and anchor, but I did not wish to do so.”
SUNDAY, OCTOBER 21.
“At 10 o'clock I arrived here at this point of the islet and anchored as did also the caravels: and after having eaten, I landed. There was no other village here except one house, in which I did not find any one, as I believe they had fled through fear because all their domestic utensils were in the
house. I did not allow my people to touch anything but I went with them and with these captains and people to see the island. If the other islands already seen are very beautiful, green and fertile, this one is much more so and has very large green groves. There are some large lakes here and upon them and around them, there are wonderful groves. They are very green here as well as in all the island and the grass is the same as it is in April in Andalusia. And the singing of the little birds is such that it appears a man would wish never to leave here, and the flocks of parrots obscure the sun. And there are large and small birds of so many kinds and so different from ours, that it is wonderful. And then there are a thousand kinds of trees, each with its own fruit and they are all wonderfully odoriferous. I am the most troubled man in the world that I do not know them, because I am very certain that they are all valuable things and I am bringing specimens of them and also of the herbs. In walking thus around one of these lakes I saw a serpent which we killed and I am bringing the skin to your Highnesses. When it saw us, it threw itself into the lake and we followed it there, as the water was not very deep, until we killed it with spears. It is seven palms in length. I believe there are many serpents like this one here in this lake. Here I recognised some aloes and to-morrow I have determined to have ten quintals brought to the ship, because they tell me it is very valuable. Also in searching for good water, we went to a village near here, a half league from where I am anchored: and the people of this village, as they saw us, all took to flight and left their houses, and hid their clothing ropas and what they possessed in the mountain. I did not allow anything to be taken, not the value of a pin. Afterward some of the men approached us and one came quite up to us. I gave him some hawk's bells and some little glass beads and he was very much pleased and very joyful. And that the friendship might increase and that I might require something of them, I asked him for water. And after I went on board the ship, they then came to the shore with their gourds full, and were very much pleased to give it to us. And I ordered that another string of little glass beads should be given them, and they said that they would come here to-morrow. I wished to fill all the ship's butts with water here; therefore, if the weather permits, I will then start and sail around this island, until I have speech with the King and see if I can obtain from him the gold which I hear he wears. And afterward I will leave for another very large island which I believe must be Cipango, according to the indications which those Indians I am taking with me, give me, and which they call Colba. They say that at this island there are many large ships and many skilled seamen. Near this island there is another which they call Bosio, which they say is also very large. And I will see the other islands which lie between in passing, and according to whether I find a quantity of gold or spices, I will determine what must be done. But still, I have determined to go to the mainland to the city of Guisay and give your Highnesses' letters to the Great Khan, and beg for a reply and come back with it.”
MONDAY, OCTOBER 22.
All this night and to-day I remained here, waiting to see if the King of this country or other persons would bring gold or anything else of substance: and many of these people came, similar to the other people of the other islands, naked like them and painted, some white, some reddish, some blackish, and in many different fashions. They brought spears and some balls of cotton to trade, which they exchanged here with some sailors for pieces of glass, broken cups, and for pieces of earthen porringers. Some of them wore pieces of gold fastened to their noses, which they willingly gave for a hawk's bell suitable for the foot of a sparrow-hawk, and for small glass beads; but it is so small a quantity of gold, that it is nothing. It is true that however little was given them for the gold, they yet considered our coming very wonderful and believed that we had come from heaven. We took water for the ships from a lake here which is near the Point of the Island {cabo del isleo} as I shall name it: and in the said lake Martin Alonso Pinzon, captain of the Pinta, killed another serpent like the one of yesterday which was seven palms in length, and here I had all the aloes taken which were found.”
TUESDAY, OCTOBER 23.
“I would like to leave here to-day for the island of Cuba which I believe must be Cipango {Japan} according to the description which these people give of its size and richness, and I will not remain here longer, neither {lacuna: perhaps– will I sail} around this island to go to the village, as I had determined, in order to talk with this King or Lord. For I must not delay much since I see that there is no gold-mine and it needs many kinds of winds to sail around this island, and it does not blow thus as men would like. And as I must go where great trade may be had, I say that it is not reasonable to delay, but to pursue my journey and discover much land until I encounter a very profitable country, although my understanding is that this one is very well provided with spices: but I do not know them, which causes me the greatest trouble in the world, as I see a thousand species of trees, each of which has its kind of fruit and they are as green now as they are in Spain in the months of May and June: and there are a thousand kinds of herbs the same as of flowers, and of them all I recognised only these aloes, of which I to-day also ordered a large quantity brought to the ship to carry it to your Highnesses. And I have not made nor am I making sail for Cuba, because there is no wind, but a dead calm, and it rains hard: and it rained a great deal yesterday without making it cool, but rather it is warm during tile day and the nights are temperate like those in Spain in the month of May in Andalusia.”
WEDNESDAY, OCTOBER 24.
“This night at midnight I weighed the anchors from the Cabo del Isleo on the island of Isabella, which is on the northern part and is where I bad stopped, in order to go to the island of Cuba which I heard from these people was very large and would yield much trade, and that there was upon it gold and spices and large vessels and merchants: and they showed me that a course west- south-west would lead to it and I think it is so. Because I believe that if what
these Indians from these islands and those I am taking on the ships have indicated to me by signs (as I do not understand the language) is true, it is the island of Cipango in regard to which they are telling wonderful things: and according to the spheres which I saw and the drawings of mappemondes it is in this region: Thus I sailed to the west-south-west until day, and at day-break the wind calmed and it rained, and it was so almost all the night. And I remained in this condition with a slight wind until past mid-day and then it commenced to blow again very pleasingly, and I spread all my sails on the ship, the main-sail, and two bonnets, the fore-sail, the sprit-sail, the mizzen- sail the main-top-sail and the small sail in the stern. So I went on my course until nightfall and then Cabo Verde on the island of Fernandina which the southern point of the western part of the island was north-west of me, and it was at a distance from me of seven leagues. And as it was still blowing strongly and I did not know how far it might be to the said island of Cuba, and in order not to go in search of it at night because the water around all these islands is very deep so that there is no anchorage save at a distance of two lombard shots, and the bottom is all either rocky or sandy so that one cannot anchor safely without seeing,–for these reasons I decided to lower all the sails except the fore-sail and navigate with that: and after a short time the wind increased very much and I went quite a distance without being sure of my course, and it was very dark and cloudy and it rained. I ordered the fore-sail lowered and we did not go two leagues this night, etc.”
THURSDAY, OCTOBER 25.
After sunrise he sailed to the west-south-west until 9 o'clock and they went about five leagues. Afterwards he changed the course to the west. They went eight miles an hour until one hour after mid-day and from then until three o'clock, and they went about 44 miles. Then they saw land and there were seven or eight islands all dong from north to south. They were five leagues distant from them, etc.
FRIDAY, OCTOBER 26.
He was south of the said islands. It was all shallow water for five or six leagues and he anchored there. The Indians he was carrying with him said that it was a day and a half's journey from these islands to Cuba with their canoes, which are small wooden vessels which do not carry sail. These are the canoes. He started from there for Cuba, because from the descriptions which the Indians gave him of the size of the island and of the gold and pearls on it, he thought that it was the one,–that is to say Cipango.
SATURDAY, OCTOBER 27.
After sunrise he weighed the anchors from those islands which he called Las Islas de Arena, on account of the shallow water which extends six leagues to the south of them. He went eight miles an hour to the south-south-west until one o'clock and they might have gone 40 miles, and until night they went about 28 miles on the same course, and before night they saw land. They remained quiet that night, making observations during which time it rained
very hard. Saturday they went until sunset 17 leagues to the south-south-west. SUNDAY, OCTOBER 28.
He went from there in search of the island of Cuba to the south-south-west, to the nearest part of the island, and entered a very beautiful river which was very free from dangerous shoals and other inconveniences. And the water all along the coast there was very deep and very clear as far as the shore. The mouth of the river was 12 fathoms deep and it is quite wide enough to beat about. He anchored inside, he says, at a distance of a lombard shot. The Admiral says that he never saw anything so beautiful, the country around the river being full of trees, beautiful and green and different from ours, with flowers and each with its own kind of fruit. There were many large and small birds which sang very sweetly, and there was a great quantity of palms differing from those in Guinea and from ours. They were of medium height without any bark at the foot and the leaves are very large, with which the Indians cover the houses. The country is very level. The Admiral jumped into the boat and went to land, and approached two houses which he believed to be those of fishermen who fled in fear. In one of the houses they found a dog which never barked and in both houses they found nets made of palm-threads and cords and fish-hooks of horn and harpoons of bone and other fishing materials and many fires (huegos) within and he believed that many persons lived together in each house. He ordered that not one thing should he touched, and thus it was done. The grass was as tall as in Andalusia in the months of April and May. He found much purslain and wild amaranth. He returned to the boat and went up the river a good distance and he says it was such a great pleasure to see that verdure and those groves and the birds that he could not leave them to return. He says that this island is the most beautiful one that eyes have seen, full of very good harbours and deep rivers and it appeared that the sea never rose because the grass on the beach reached almost to the water, which does not usually happen when the sea is rough. Until then he had never found in all those islands that the sea was rough. The island, he says, is filled with very beautiful mountains, although they are not very long but high and all the other land is high like Sicily. It is full of many waters, according to what he was able to understand from the Indians he was taking with him, whom he took in the island of Guanahani, who told him by signs that there are ten large rivers and that with their canoes they cannot go around it in twenty days. When he was going to land with the ships, two rafts or canoes came out and as they saw that the sailors entered the boat and were rowing in order to go and find out the depth of the river so as to know where they could anchor, the canoes fled. The Indians said that in that island there were mines of gold and pearls, and the Admiral saw a good place for them and for mussels which is an indication of them, and the Admiral understood that large ships belonging to the Great Khan came there, and that from there to the mainland it was a ten days' journey. The Admiral named that river and harbour San Salvador.
MONDAY, OCTOBER 29.
He weighed the anchors from that harbour and navigated to the west he says, in order to go to the city where it appeared to him from what the Indians said that the King dwelt. One point of the island projected to the north-west six leagues from there, another point projected to the east ten leagues: having gone another league he saw a river not with as wide an entrance as the other which he named the Rio de la Luna. He sailed until the hour of vespers. He saw another river very much larger than the others, and the Indians told him so by signs, and near this river he saw good villages of houses. He named the river the Rio de Mares. He sent the boats to a village to have speech with the Indians, and in one of the boats he sent an Indian from among those he was taking with him, because the Indians already understood them somewhat and showed that they were pleased with the Christians. All the men and women and children fled from these people abandoning the houses with all they had, and the Admiral ordered that nothing would be touched. He says that the houses were more beautiful than those he had seen and he believed that the nearer they approached the mainland the better they were. They were constructed like pavilions, very large, and appeared like royal tents without uniformity of streets, but one here and another there, and within they were very well swept and dean, and their furnishings were arranged in good order. All are built of very beautiful palm branches. They found many statues of women's forms and many heads like masks, very well made. it is not known whether they have them because of their beauty or whether they adore them. There were dogs which never barked. There were small wild birds tamed in their houses. There were wonderful outfits of nets and hooks and fishing implements. They did not touch one thing among them. The Admiral believed that all the Indians on the coast must be fishermen who carry the fish inland, because that island is very large and so beautiful that he could not say too much good of it. He says that he found trees and fruits of a very wonderful taste. And he says that there must be cows and other herds of cattle on this island, because he saw skulls which appeared to him to be skulls of cows. There were large and small birds and the crickets sang all the night, which pleased every one. The breezes were soft and pleasant during all the night, neither cold nor warm. But in regard to the other islands he says that it is very warm upon them and here it is not, but temperate as in May. He attributes the heat of the other islands to their being very level, and to the fact that the wind which blows there is from the south and on that account very warm. The water in those rivers was salt at the mouth. They did not know the sources whence the Indians drank although they had fresh water in their houses. The ships were able to turn around in the river to enter and to go out and they have very good signs or marks. They are seven or eight fathoms deep at the mouth and five within. He says that it appears to him that all that sea must always be as calm as the river of Seville, and the water suitable for the growth of pearls. He found large snails without taste, not like those in Spain. He described the disposition of the river and the harbour which he says above that he named
San Salvador, by saying that its mountains are beautiful and high, like the Rock of the Lovers (pena de lo senamorados) and one of them has at the summit another little mount like a beautiful mosque. This river and harbour in which he was at this time, has to the south-east two quite round mountains and to the west-north-west a beautiful level cape which projects outward. TUESDAY, OCTOBER 30.
He went out of the Rio de Mares to the north-west and after having gone fifteen leagues he saw a cape covered with palms and named it Cabo de Palmas. The Indians who were in the caravel Pinta said that behind that cape there was a river and from the river to Greta it was four days' journey and the captain of the Pinta said that he understood that this Cuba was a city, and that that country was the mainland, very large, which extends very far to the north; and that the King of that country was at war with the Great Khan, whom they called Cami, and his country or city they called Fava and many other names. The Admiral determined to approach that river and send a present to the King of the Country and send him the letter from the Sovereigns, and for this purpose he had a sailor who had been in Guinea in like manner and certain Indians from Guanahani who wished to go with him, so that afterwards they might return to their country. In the Admiral's opinion he was 42 degrees distant from the equinoctial line toward the north, but the text from which this is copied is defaced; and he says that he must strive to go to the Great Khan as he thought he was in that vicinity or at the city of Cathay which is the city of the Great Khan. He says that this city is very great, according to what was said to him before he left Spain. He says all this country is low and beautiful and the sea is deep.
WEDNESDAY, OCTOBER 31.
All Tuesday night he went beating about and saw a river which he could not enter as the mouth was shallow: and the Indians thought that the ships could enter as their canoes entered, and sailing onward he found a cape which projected very far out and was surrounded by shoals and he saw an inlet or bay where small ship could remain, and he could not reach it, because the wind had shifted entirely to the north and all the coast extended to the north-north- west and south-east and another cape which he saw ahead of him projected farther out. For this reason and because the sky indicated a strong wind he had to return to the Rio de Mares.
THURSDAY, NOVEMBER 1.
At sunrise the Admiral sent the boats to land to the houses which were there and they found that all the people had fled: and after some time a man appeared and the Admiral ordered that they should be left to become re- assured and the boats returned, and after having eaten he again sent to land one of the Indians he was carrying, who from a distance called to them saying that they must not be afraid because the Spaniards were good people and did no harm to any one; neither were they from the Great Khan, rather had they given of their possessions in many islands where they had been. And the
Indian started to swim and went to land, and two of the Indians there took him by the arms and conducted him to a house where they questioned him. And as they were sure that no harm would be done them, they were re-assured and then there came to the ships more than sixteen rafts or canoes with spun cotton and other little things of theirs, of which the Admiral ordered that nothing should be taken that they might know that the Admiral was seeking nothing except gold which they call nucay: and thus during dl the day they went and came from land to the ships, and the Christians went to land in great security. The Admiral did not see any of them have gold but the Admiral says he saw one of them have a piece of wrought silver fastened to his nose, which be took as an indication that there was silver in the country. They said by signs that before three days there would come many merchants from the country inland to buy the things which the Christians brought there, and they would give news from the King of the country, who, according to what they could understand by the signs they made was four days journey distant from there, because they had sent many people through all the country, to tell them about the Admiral. These people, says the Admiral, are of the same quality and have the same customs as the others which have been found, without any sect that I know, as until the present I have not seen these I am bringing with me make any prayer but instead they say the Salve and the Ave Maria with the hands raised to heaven as they are shown, and they make the sign of the cross. All the language also is one and they are all friends and I believe that all these islands are friendly, and that they are at war with the Great Khan, whom they call Cavila and the province Bafan, and thus they also go naked like the others The Admiral says this. He says that the river is very deep and the ships can approach their sides to the land, in the mouth. The water is not fresh until within a league of the mouth and there it is very fresh. And it is certain says the Admiral that this is the mainland and that I am, he says, before Zayto and Guinsay, 100 leagues a little more or a little less, distant from both, and it is well shown by the sea which comes in a different manner than it has come up to the present, and yesterday as he was going to the north-west he found that it was becoming cold.
FRIDAY, NOVEMBER 2.
The Admiral decided to send two Spaniards, the one named Rodrigo de Jerez who lived in Ayamonte and the other one Luis de Torres, who had lived with the Adelantado of Murcia, and had been a Jew and who he says knew how to speak Hebrew and Chaldean and even some Arabic: and with these men he sent two Indians, one of those he was taking with him from Guanahani and the other from those houses situated on the River. He gave them strings of beads to buy something to eat if it should fail them and six days time in which to return. He gave them specimens of spices to see if they came across any of them. He gave them instructions as to how they must ask for the King of that country and as to what they were to say on the part of the Sovereigns of Castile, how they sent the Admiral that he might give to the King on their part
their letters and a present, and in order to learn of his state and gain friendship with him that he might favour them in whatever they might need, etc.: and that they might learn of certain provinces and harbours and rivers of which the Admiral had information and how far distant they were from there, etc.
This night the Admiral took the altitude here with a quadrant and he found that he was 42 degrees distant from the equinoctial line and he says that by his computation he found that he had gone from the island of Hierro 1142 leagues, and he still affirms that that country is the mainland.
SATURDAY, NOVEMBER 3.
In the morning the Admiral entered the boat and as the river forms a great
lake at the mouth which makes a very remarkable harbour very deep and free from rocks, a very good beach to run the ships aground in order to clean the hulls, and there is a great deal of wood,–he went up the river until he reached fresh water, which might be about two leagues and ascended a slight elevation to learn something of the country, and he could not see anything because of the large groves which were very fresh and odorous, on account of which he says he has no doubt that there are aromatic herbs. He says that everything he saw was so beautiful that the eyes could not weary of seeing such beauty nor could one weary of the songs of the birds, both large and small. That day many rafts or canoes came to the ships to barter things made of spun cotton and the nets in which they slept, which are hammocks.
SUNDAY, NOVEMBER 4.
Then at dawn the Admiral entered the boat and went to land to hunt some birds which he had seen the day before. After his return, Martin Alonzo Pinzon came to him with two pieces of cinnamon and said that a Portuguese he had on his ship had seen an Indian who was carrying two very large handfuls of it, but that he had not dared to trade with him for it on account of the prohibition of the Admiral that no one should do any trading. He said further that the Indian had some bright reddish things like nuts. The Boatswain of the Pinta said that he had found trees of cinnamon. The Admiral then went there and found that it was not cinnamon. The Admiral showed cinnamon and pepper to some Indians in that place–it appears that it was from that which they were carrying from Castile as a specimen–and he says that they recognised it and they said by signs that near there, there was a great deal of it toward the south-east. He showed them gold and pearls and certain old men replied that in a place they called Bohio there was an infinite quantity of gold, and that they wore it at the neck and in the ears and on the arms and on the legs, and also pearls. He understood further that they said there were large ships and merchandise and all this was to the south-east. He understood also that a long distance from there, there were men with one eye and others with dogs' snouts who ate men and that on taking a man they beheaded him and drank his blood and cut off his genital parts. The Admiral determined to return to the ship and await the two men he had sent in order to decide to start and search for those lands, unless, these men brought some good news of
what he desired. The Admiral says further–“These people are very meek and very fearful, naked as I have said, without arms and without government. These lands are very fertile. They are full of 'mames' which are like carrots and taste like chestnuts and they have 'faxones' and beans very different from ours, and a great deal of cotton, which they do not sow and which grows in the mountains, large trees of it: and I believe they have it ready to gather all the time because I saw the pods opened and others which were opening and flowers all on one tree and a thousand other kinds of fruits of which it is not possible for me to write and it must all be a profitable thing.” The Admiral says all this.
MONDAY, NOVEMBER 5.
At dawn he ordered the small ship beached in order to clean the hull and the other ships also, but not all together: but that two should remain all the time in the place where they were for security, although he says that those people were very safe and they could have beached all the ships together without fear. Being in this condition, the Boatswain of the Niña came to beg a reward from the Admiral because he had found mastic, but he did not bring a specimen because he had lost it. The Admiral promised him the reward and sent Rodrigo Sanchez and Master Diego to the trees, and they brought a little of it which he kept to carry to the Sovereigns and also some of the tree and he says that he knew that it was mastic. Although it must be gathered at the right time: and that there was enough in that vicinity to procure 1000 quintals each year. He says that he found near there a great deal of that wood which is called aloe. He says further that the Puerto de Mares is one of the best harbours in the world and has the best climate and the quietest people and as it has a point formed by a high rocky hillock a fortress can be made, so that if rich and great things should come out of this country, the merchants would be secure there from any other nations whatever. And he says,–“May Our Lord, in whose hands are all the victories, dispose all that which is for His service.” He says that an Indian said by signs that the mastic was good for pains in the stomach.
TUESDAY, NOVEMBER 6.
Yesterday in the night, says the Admiral, the two men whom he had sent inland to see the country came back and told him how they bad gone twelve leagues as far as a village of fifty houses, where he says there were a thousand inhabitants, as a great many live in one house. These houses are like very large pavilions. The Spaniards said that the Indians received them with great solemnity according to their custom and all the men as well as the women came to see them and lodged them in the best houses. The Indians touched them and kissed their hands and feet wondering, and believing that they came from heaven, and thus they gave them to understand. They gave them to eat from what they had. They said that on arriving, the most honourable persons of the village conducted them by the arms to the principal house and gave them two chairs in which they sat down and they all seated themselves on the
floor around them. The Indian who went with them told them how the Christians lived and how they were good people. Afterwards the men went out and the women entered and seated themselves in the same manner around them, kissing their hands and feet, trying them to see if they were of flesh and of bone like themselves. They begged them to remain there with them at least five days. They showed the Indians the cinnamon and pepper and other spices which the Admiral had given them and these told them by signs that there was a great deal of it near there to the south-east: but that they did not know if they had it in that place. Having seen that there were no rich cities they returned and it they had desired to make a place for those who wished to come with them, that more than 500 men and women would have come with them, because they thought they were returning to heaven. There came with them however one of the principal men of the village and his son and one of his men. The Admiral talked with them, paid them great honour and he this Indian indicated to him many lands and islands there were in those parts and he thought to bring them to the Sovereigns: and he says he did not know what the Indian desired of him, hut it appears that because of fear and in the darkness of night he desired to land, and the Admiral says that as he had the ship dry on land, and not wishing to irritate him, he let him go, saying that at dawn be would return, but he never returned. The two Christians found on the way many people who were crossing to their villages, men and women with a half burned wood in their hands and herbs to smoke, which they are in the habit of doing. They did not find on the way a village of more than five houses, and all gave them the same welcome. They saw many kinds of trees and grasses and sweetsmelling flowers. They saw many kinds of birds different from those in Spain, excellent partridge and nightingales, which sang, and geese, and of these there is a very great number there. They saw no four-footed beasts except dogs which did not bark. The land is very fertile and very well cultivated with those “mames” and “fexoes” and beans very different from ours, that same panic-grass and a great quantity of cotton gathered and spun and worked, and they said that in one house alone they had seen more than five hundred arrobas and that there could be had there each year, four thousand quintals. The Admiral says that it appeared to him they did not sow it and that it bears fruit all the year: it is very fine, and has a very large pod. All that these people had, he says, they gave for a very miserable price and that they gave one great basket of cotton for the end of a leather strap or any other thing that was given them. They are a people, says the Admiral, very free from evil or from war. All the men and women are naked as their mothers gave them birth. It is true that the women wear a cotton thing only large enough to cover their genital parts and no more and they are of very good presence, neither very black but less so than the inhabitants of the Canaries. “I have to say Most Serene Princes (says the Admiral) that by means of devout religious persons knowing their language well, all would soon become Christians: and thus I hope in our Lord that your Highnesses will
appoint such persons with great diligence in order to turn to the Church such great peoples, and that they will convert them, even as they have destroyed those who would not confess the Father and the Son and the Holy Spirit: and after their days as we are all mortal, they will leave their realms in a very tranquil condition and freed from heresy and wickedness, and will be well received before the Eternal Creator, Whom may it please to give them a long life and a great increase of larger realms and dominions, and the will and disposition to spread the holy Christian religion, as they have done up to the present time, Amen.–To-day I will launch the ship and make haste to start Thursday in the name of God to go to the south-east and seek gold and spices and discover land.” These are the words of the Admiral, who thought to start on Thursday. But as the wind was contrary, he could not start until Nov. 12. MONDAY, NOVEMBER 12.
He started from the harbour and river of Alares at the passing of the quarter of dawn to go to an island which the Indians he was taking positively affirmed was called Babeque, where, as they said by signs, the people on it gather gold with candles at night in the sand and afterwards with a hammer he says they make bars of it, and in order to go to this island it was necessary to turn the prow to the east, quarter south-east. After having gone eight leagues forward along the coast he found a river and then having gone another four, he found another river which appeared very rich and larger than any of the others he had found. He did not wish to stop or enter any of them on two accounts, the principal one that the weather and wind were good to go in search of the said island of Babeque, the other because if there should be any populous or famous city upon it, it would appear near the sea, and in order to go up the river small vessels were necessary, which those they had were not, and thus he would also lose much time, and the similar rivers are a thing to be discovered by one's self. All that coast was principally populated near the river, to which he gave the name of El Rio del Sol. He said that Sunday before, November 11, it had appeared to him that it would be well to take some persons from those dwelling by that river in order to take them to the Sovereigns that they might learn our language so as to know what there is in the country, and that in returning they may speak the language of the Christians and take our customs and the things of the Faith, “Because I see and know (says the Admiral) that this people have no sect whatever nor are they idolaters, but very meek and without knowing evil, or killing others or capturing them and without arms, and so timorous that a hundred of them flee from one of our people, although they may jest with them: and they are credulous and they know that there is a God in heaven, and they firmly believe that we have come from heaven: and they learn very quickly whatever prayer we tell them to say and they make the sign of the cross So that your Highnesses must resolve to make them Christians, as I believe that if they commence, in a short time a multitude of peoples will have been converted to our Holy Faith acquiring great domains and riches and all their villages for
Spain: because without doubt there is a very great quantity of gold in this land, as these Indians I am bringing say, not without cause, that there are places in these islands where they dig the gold and wear it at the neck and in the ears and on the arms and on the legs and there are very heavy bracelets and also there are precious stones and pearls and an infinite quantity of spices. And in this river of Alures from whence I started last night, without doubt there is a very great quantity of mastic, and there may be more if it is desired that there should be more, because in planting the trees they grow easily and there are a great quantity and very large ones, and the leaf is like the mastic-tree and the fruit, except that the trees as well as the leaves are larger, as Pliny says, and as I have seen on the island of Scio in the Archipelago. And I ordered many of these trees tapped to see if resin would flow out in order to bring some, and as it has rained all the time I have been in the said river I have not been able to get any of it, except a very small quantity which I am bringing to your Highnesses, and also it may be that it is not the time to tap them; as for this purpose I believe that the end of the winter when the trees are about to bloom is suitable: and here they already have the fruit almost ripe it the present time. And also there will be a great quantity of cotton here, and I believe that it would he sold very well here without taking it to Spain, but to the great cities of the Great Khan which will without doubt be discovered, and to many other cities belonging to other Lords which will come to serve your Highnesses, and where other things from Spain and the lands of the east will be taken, since these are to the west of us. And here there is also an infinite quantity of aloes, although it is not a thing which will produce great riches but from the mastic much is to be expected, because there is none except in the said island of Scio, and I believe that they derive from it fifty thousand ducats, if I do not remember wrongly. And there is here in the mouth of the river the best harbour that I have seen until the present time, clear and wide and deep and a good situation and strong place to construct a village; and any ships whatever can approach their sides to the banks and the land is very temperate and high and the waters are very good. Yesterday there came to the side of the ship a canoe with six youths upon it and five of them entered the ship: these I ordered kept and I am bringing them with me. And afterwards I sent to a house which is west of the river and they brought seven women, small and large, and three children. I did this that the men might conduct themselves better in Spain by having women from their country than they would without them: as it had already happened many other times in taking the men from Guinea that they might learn the language in Portugal–that after they returned and it was thought that they might be made use of in their country on account of the good company they had had and the presents which had been given them, that they never appeared after arriving there. Others did not act in this manner. So that having their wives they will be willing to undertake what is desired of them, and also these women will teach our people their language, which is all one in all these islands of India and all understand each other and
all go with their canoes, which is not the case in Guinea where there are a thousand kinds of languages so that one does not understand the other. This night there came to the side of the vessel the husband of one of these women and the father of the three children who were a male and two females and asked that I might let him come with them and it pleased me greatly, and they are now all consoled so they must all be relatives, and he is a man of already forty-five years.” All these are the exact words of the Admiral. He also says above that it was somewhat cold and on this account it would not be good judgment to navigate to the north in winter in order to make discoveries. He sailed this Monday until sunset eighteen leagues to the east quarter south-east as far as a cape, which he named the Cabo de Cuba.
TUESDAY, NOVEMBER 13.
All this night he was “a la corda,” as the sailors say, which is to beat about and not make any headway, in order to see a gap in the mountains, which is an opening as between one mountain range and another, which he began to see at sunset, where two very large mountains appeared, and it seemed that the country of Cuba was divided from that of Bohio, and the Indians he was taking with him said so by signs. Daylight having arrived, he made sail for land, and passed a point which at night appeared about two leagues distant, and entered a large gulf, five leagues to the south-south-west: and there remained another five leagues to arrive at the cape, where between two large mountains there was a cut into which he could not determine whether the sea had an entrance or not. And as he desired to go to the island which they called Babeque where he bad information, according to what he understood, that there was a great deal of gold, which island projected to the east of him and as he saw no large villages where he could place himself in shelter from the wind which increased more than ever up to that time, he decided to make for the sea, and go to the east with the wind, which was north, and he went eight miles each hour: and from ten o'clock in the day when he took that course, until sunset he went fifty-six miles from the Cabo de Cuba to the east, which are fourteen leagues. And of the other country of Bohio which remained to the leeward, commencing from the head of the aforesaid gulf he discovered, in his opinion, eighty miles, which are twenty leagues, and dl that coast extends east-south-east and west-north-west.
WEDNESDAY, NOVEMBER 14.
All the night of yesterday he went cautiously and beating about because he said that it was not reasonable to navigate among those islands at night until he had discovered them as the Indians he was carrying told him yesterday (Tuesday) that it was about three days' journey from the river of Mares to the island of Babeque, which must he understood as days' journeys for their canoes, which can go seven leagues, and the wind also became light: and having to go to the east he could not (steer in that direction), except to the quarter of the south-east, and on account of other inconveniences which he refers to he had to stop there until morning. At sunrise he determined to go in
search of a harbour, because the wind had changed from the north to the north-east, and if he did not find a harbour it would be necessary for him to turn backward to the harbours he had left on the island of Cuba. He reached land, having gone that night twenty-four miles to the east quarter south-east; he went to the south lacuna miles to land, where he saw many inlets and many small islands and harbours, and as the wind was high and the sea greatly changed he did not dare to undertake to enter, but rather he ran along the coast to the north-west, quarter west, searching for a harbour, and he saw that there were many but not very clear. After having gone in this manner sixty- four miles, he found a very deep inlet, a quarter of a mile wide, and a good harbour and river, where he entered and turned his prow to the south-south- west, and afterward to the south until he reached south-east, and all very wide and deep. Here he saw so many islands that he could not count them all, of good size, and very high lands covered with different trees of a thousand kinds and an infinite number of palms. He marvelled greatly to see so many high islands, and he says to the Sovereigns in regard to the mountains which he has seen since the day before yesterday along these coasts and on these islands, that it appears to him there are no higher ones in the world nor any as beautiful and clear, without fog or snow, and at the base the sea is of very great depth: and he says he believes that these islands are those innumerable ones which in the maps of the world are placed at the end of the east: and he said that he believed there were very great riches and precious stones and spices upon them, and that they extend very far to the south and spread out in all directions. He named this place La Mar de Nuestra Senora, and the harbour which is near the entrance to the said islands he named Puerto del Principe, into which he did not enter more than to see it from outside, until another excursion which he made there the coming week, which will appear there. He says so many and such things of the fertility and beauty and height of these islands which he found in this harbour, that he tells the Sovereigns not to wonder that he praises them so much, because he assures them that he does not believe he has told the hundredth part. Some of them appeared to reach heaven and were like points of diamonds: others of great height which have a table on top, and at their base the sea is of very great depth so that a very large carack could approach them: and they are all covered with forests and are without rocks.
THURSDAY, NOVEMBER 15.
He decided to go among these islands with the boats from the ships and he says wonders in regard to them, and that he found mastic and a great quantity of aloes and some of them were covered with the roots from which the Indians make their bread, and he found that a fire had been kindled in some places. He saw no fresh water but there were some people and they fled. Everywhere he went he found a depth of fifteen and sixteen fathoms, and all “basa” which means that the bottom underneath is sand and not rock, which the sailors greatly desire, because the rocks cut the cables of the ships' anchors.
FRIDAY, NOVEMBER 16.
As in all the places, islands and lands where he entered he always left a cross planted, he entered the boat and went to the mouth of those harbours and on a point of the land he found two very large beams, one larger than the other, and the one upon the other made a cross, which he says a carpenter could not have made in better proportion: and having adored that cross, he ordered a very large, high cross made of the same timbers. He found canes along that beach and he says he did not know where they came from but he believed that some river brought them and cast them on the beach, and he was reasonable in thinking so. He went to a creek within the entrance of the harbour to the south-east (a creek is a narrow inlet where the water from the sea enters the land): there the land formed a promontory of stone and rock like a cape, and at the base the sea was very deep, so that the largest carack in the world could lie against the land, and there was a place or corner where six ships could remain without anchors as in a hall. It appeared to him that a fortress could be built there at small cost, if any notable commerce should result in that sea from those islands at any time. On returning to the ship he found the Indians he had with him fishing for very large snails which are found in those seas, and he made the people enter there and search for nacaras which are the oysters where pearls are formed, and they found many but no pearls and he attributed it to the fact that it could not have been the time for them, which he believed was in May and June. The sailors found an animal which appeared to be a “taso” or “taxo.” They fished also with nets and found a fish among many others, which appeared like a genuine hog, not like a “tunny” which he says was all shell, very hard, and had nothing soft except the tail and the eyes and an opening underneath to expel its superfluities. He ordered it salted that he might take it for the Sovereigns to see.
SATURDAY, NOVEMBER 17.
He entered the boat in the morning and went to see the islands which he had not seen, in the direction of the south-west: he saw many others very fertile and very delightful and between them the sea was very deep. Some of them were divided by streams of fresh water, and he believed that that water and those streams came from springs which proceeded from the tops of the mountain ranges on the islands. Going onward from here he found a very beautiful river of fresh water and it flowed very cold through the dry part of the island: there was a very pretty meadow and many palms, much taller than those he had seen. He found large nuts like those of India, I believe he says, and large rats, also like those of India, and very large craw-fish. He saw many birds and smelled a powerful odour of musk {almazique}, and believed that there must be some there. To-day, of the six youths whom he took in the river of Mares and whom he ordered should go on the caravel Niña, the two oldest ones fled.
SUNDAY, NOVEMBER 18.
He proceeded in the boats again with many people from the ships and went to
place the great cross which he had ordered made of the said two timbers at the mouth of the entrance of the said Puerto del Principe, in a sightly place and free from trees: It was very high and commanded a very beautiful view. He says that the sea rises and falls there much more than in any other harbour which has been seen in that country, and that it is not very wonderful by reason of the many islands, and that the tide is the reverse of ours, because there when the moon is to the south-west quarter south, it is low tide in that harbour. He did not start from there as it was Sunday.
MONDAY, NOVEMBER 19.
He started in a calm before sunrise, and after mid-day it blew some to the east
and he navigated to the north-north-east; at sunset the Puerto del Principe was to the south-south-west, and was about seven leagues from him. He saw the island of Babeque exactly to the east, about sixty miles distant. He sailed slowly all this night to the north-east; he went about sixty miles and until ten o'clock in the day, Tuesday, another twelve, which are in all eighteen leagues, and in the direction of the north-east quarter north.
TUESDAY, NOVEMBER 20.
Babeque or the islands of Babeque were to the east-south-east, from which direction the wind blew, which was contrary. And seeing that it did not alter and the sea was changing, he decided to make a short excursion to the Puerto del Principe, from whence he had come, which was at a distance of twenty-five leagues. He did not wish to go to the small island which he called Isabella which was at a distance of twelve leagues where he might have gone to anchor that day, for two reasons: one reason, because he perceived two islands to the south which he wished to see, the other that the Indians he was carrying, whom he had taken in Guanahani which he called San Salvador which was eight leagues from Isabella, might not get away from him, of whom he says he has need, in order to bring them to Castile, etc. They had understood, he says, that on finding gold the Admiral would allow them to return to their country. He arrived at the place of the Puerto del Principe: but he could not make it because it was night and because the currents caused him to decline to the north-west. He came back again and turned his prow to the north-east with a strong wind: it calmed and the wind changed at the third quarter of the night, and he turned his prow to the east, quarter north-east: the wind was south- south-east and it changed at dawn entirely to the south, and touched upon the south-east. At sunrise he marked the Puerto del Principe, and it was south- west of him and almost in the quarter of the west, and it was about 48 miles distant from luni, which are twelve leagues.
WEDNESDAY, NOVEMBER 21.
At sunrise he navigated to the east with the wind south. He made little headway on account of the contrary sea: until the hour of vespers he had gone twenty-four miles, Then the wind changed to the east and he went to the south, quarter south-east and at sunset lie had gone twelve miles. There the Admiral found himself forty-two degrees from the equinoctial line in the
direction of the north as in the harbour of Mares: but here he says that he has abandoned the use of the quadrant until he reaches land in order to repair it. So that it appeared to him that he could not be so far distant, and he was right, because it was not possible for these islands to be only in {lacuna} degrees. He was moved to believe, he says, that the quadrant was correct by seeing that the North Star was as high as in Castile, and if this is true he had drawn very near to, and was as high as the coast of Florida: but,–where then, are now these islands which he had under consideration. He was persuaded to believe this because it was very warm: but it is clear that if he was on the coast of Florida that it would not be warm but cold: and it is also manifest that in forty-two degrees in no part of the earth is it believed to be warm without it might be for some cause per accidens, which I do not believe is known up to the present time. On account of this heat which the Admiral says he suffered there, he argues that in these Indies and in the place where he was, there must be a great deal of gold. This day Martin Alonso Pinzon went away with the caravel Pinta without the will and command of the Admiral, through avarice, he says, thinking that an Indian whom the Admiral had ordered placed on the caravel, could show him much gold, and so he went away without waiting and without its being on account of bad weather, but because he wished to do so. And the Admiral says here, “He has done and said many other things to me.” THURSDAY, NOVEMBER 22.
Wednesday in the night he navigated to the south quarter south-east with the wind east, and it was almost a calm: at the third quarter it blew north-north- east. He was yet going toward the south in order to see that country which lay in that direction from him and when the sun rose he found himself as far distant as on the past day because of the contrary currents, and the land was a distance of forty miles from him. This night Martin Alonso followed the course to the east in order to go to the island of Babeque, where the Indians say there is a great deal of gold, and he was going in sight of the Admiral and might have been at a distance of sixteen miles. The Admiral went in sight of land all night and he caused some of the sails to be taken in and burned a torch all night, because it appeared to him that Martin Alonso was returning to him; and the night was very clear and there was a nice little breeze by which to come to him if he wished.
FRIDAY, NOVEMBER 23.
The Admiral navigated toward land all day, always to the south with a light wind, and the current never permitted him to reach land, but rather he was as far from it to-day at sunset as he was in the morning. The wind was east- north-east and favourable to go to the south, but it was light: and beyond this cape there was another land or cape which also extends to the east which the Indians he was carrying called Bohio, and which they said was very large and had upon it people who had an eye in the forehead and others which were called cannibals of whom they showed great fear. And as soon as they saw that they were taking that course, he says that they could not talk, as they said
cannibals ate them and they are a people who are very well armed. The Admiral says he well believes there was some truth in it, although since they were armed they must be an intelligent people, and he believed that they had captured some of the other Indians and that because they did not return to their own country, they would say that they ate them. They believed the same in regard to the Christians and the Admiral, when some of them first saw them.
SATURDAY, NOVEMBER 24.
He navigated all that night and at the hour of “tercia” he made land off the level island, in that same place where he had put into harbour the past week when he was going to the island of Babeque. At first he did not dare to land because it appeared to him that the sea broke heavily in that opening in the mountain ranges. And finally he arrived at the Mar de Nuestra Senora where the many islands were, and he entered the harbour near the mouth of the entrance to the islands, and he says that if he had known this harbour before and had not occupied himself in seeing the islands of the Sea of Our Lady
{Mar de Nuestra Senora} that it would not have been necessary for him to turn backward although he says that he considers it time well employed in having seen the said islands. So that on arriving at land he sent the boat and tried the harbour and found it a very good bar, six fathoms deep and sometimes twenty, and clear, and all with a sandy bottom: he entered it, turning the prow to the south-west, and afterwards turning to the west, leaving the flat island toward the north, which with another near to it makes a bay in the sea, in which all the ships of Spain could be contained, and could be safe from all the winds without anchorage. And this entrance on the south-eastern part which may be entered by placing the prow to the south-south-west, has an outlet to the west, very deep and very wide: so that whoever might come from the sea on the northern part can pass between the said islands and obtain knowledge of them, as it is the direct passage along this coast. These said islands are at the base of a great mountain which extends lengthwise from east to west, and is exceedingly long and higher and longer than any of all the others which are upon this coast where there is an infinite number, and a rocky reef extends outside along the said mountain like a bar, which reaches as far as the entrance. All this is on the south-eastern part and also on the side of the flat island there is another reef, although this is small, and thus between both there is great width and great depth of water as has been said. Then at the entrance on the south-eastern side, inside in the same harbour, they saw a large and very beautiful river, and with more water than they had seen until that time and the water of which was fresh as far as the sea. It has a bar at the entrance but afterwards inside it is very deep, eight or nine fathoms. The land is all covered with palms and has many groves like ours.
SUNDAY, NOVEMBER 25.
Before sunset he entered the boat and went to see a cape or point of land to the south-east of the small flat island, a matter of a league and a half because
it appeared to him that there must be some good river there. Then at the entrance of the cape on the south-eastern part, at a distance of two cross-bow shots, he saw a large stream of very fine water flowing, which descended from a mountain and made a great noise. He went to the river and saw in it some glittering stones with spots on them of the colour of gold, and he remembered that in the river Tejo {Tagus}, at the foot of it near the sea, gold was found and it appeared to him that there certainly must be gold here and he ordered certain of those stones to be gathered to carry them to the Sovereigns. While they were in this place the ship-boys cried out saying that they saw pines. He looked toward the mountain ranges and saw them the pines, so large and wonderful that he could not exaggerate their height and straightness, like spindles, both thick ones and slender ones. From these he knew that ships could be made and a great quantity of timber and masts for the largest vessels of Spain. He saw oak-trees and strawberry-trees and a good river and the materials necessary for saw-mills. The land and the breezes were more temperate than up to the present time, on account of the height and beauty of the mountain ranges. He saw along the beach many other stones of the colour of iron, and others which some said were from silver mines, all of which were brought by the river. There he got a lateen yard and mast for the mizzen of the caravel Niña. He reached the mouth of the river and entered a bay at the foot of that cape on the south-eastern side which was very large and deep and which would contain a hundred ships without any cables or anchors and eyes never saw such another harbour. The chains of mountains were very high, from which many delightful streams descended: and all the ranges were covered with pines and everywhere there were the most diverse and beautiful thickets of trees. There were two or three other rivers which lay behind him. He praises all this highly to the Sovereigns and shows that he experienced inestimable joy and pleasure in seeing it, and especially the pines, because as many ships as desired could be built there by bringing the necessary implements, except wood and fish of which there is an enormous quantity there. And he affirms that he has not praised it a hundredth part as much as it deserves and that it pleased our Lord to continually show him something better and always in what he had discovered up to the present time he had been going from good to better, as well in the trees and forests and grasses and fruits and flowers, as in the people and always in a different manner and in one place the same as in another. The same was true in regard to the harbours and the waters. And finally he says that when he who sees it wonders at it so greatly, how much more wonderful it will seem to those who hear of it, and that no one will be able to believe it until he sees it.
MONDAY, NOVEMBER 26.
At sunrise he weighed the anchors from the harbour of Santa Catalina where he was, inside the low island, and navigated along the coast in a rather light wind south-west in the direction of the Cabo del Pico, which lay to the south- east. He reached the cape late because the wind calmed, and having arrived
he saw to the south-east, quarter east, another cape which might have been sixty miles distant and near there he saw another cape which was about south- east of the ship, quarter south, and it appeared to him that it might have been twenty miles distant, which he named Cabo de Campana and which he could not reach in the day-time because the wind calmed again altogether. He went during that entire day about thirty-two miles which are eight leagues. Within that distance he noted and marked nine very distinct harbours which all the seamen considered wonderful, and five large rivers, because he went near to the land all the time in order to see everything well. All that country consists of very high and beautiful mountains and they are not dry or rocky but are all accessible and there are most beautiful valleys. And the valleys as well as the mountains were covered with tall and verdant trees, so that it was a pleasure to look at them, and it appeared that there were many pines. And also beyond the said Cabo del Pico on the south-eastern side, there were two small islands which were each about two leagues around and in them there were three wonderful harbours and two large rivers. On all this coast he saw no town whatever from the sea. It might have been that there were people and there are signs of them, because whenever they went on land they found signs of habitations and many fires. He thought that the country he now saw in the south-east direction from the Cabo de Campana was the island which the Indians called Bohio: it appears so to him because the said cape is separated from that land. All the people that he has found up to the present time, he says are in great tear of the people of Caniba or Canima, and they say they live on this island of Bohio. This island must be very large, as it appears to him, and he believes that the people on it to and take the other Indians and their lands and houses, as they are very cowardly and do not know about arms. And for this cause it appeared to him that those Indians he was taking with him were not accustomed to settle on the coast of the sea, on account of being near this country. These Indians, he says, after they saw him take the course to this country, could not speak, fearing that they were to be eaten, and he was not able to free them from fear, and they said that the people there had only one eye and the face of a dog and the Admiral believed that they lied: and the Admiral felt that they must belong to the domains of the Great Khan, who captured them.
TUESDAY, NOVEMBER 27.
Yesterday at sunset be arrived near a cape which he called Campana and as the sky was clear and the wind light he did not wish to go to land to anchor although he had five or six wonderful harbours to the leeward, because he was detained more than he desired by the pleasure and delight he felt and experienced in seeing and gazing on the beauty and freshness of those countries wherever he entered, and as he did not wish to be delayed in prosecuting what he was engaged upon. For these reasons he remained that night beating about and standing off and on until day. And as the rapid currents that night had taken him more than five or six leagues farther to the
south-east than he was at nightfall where the country of Campana had appeared to him: and beyond that point there appeared a great inlet which seemed to divide one country from the other, and made the appearance of an island in the middle: he decided to turn backward with the wind south-west, and he arrived where the opening had appeared to him, and he found that it was only a large bay and at the head of it on the south-eastern side was a point upon which there was a high and square mountain which appeared like an island. The wind changed to the north and he again took his course to the south-east in order to go along the coast and discover all that there might be there. And he saw then at the foot of that Cabo de Campana a wonderful harbour and a large river and a quarter of a league from there another river and a half league from there another river and another half league from there another river, and a league from there another river, and another league from there another river, and another quarter of a league from there another river, and another league from there another large river, from which latter river to the Cabo de Campana it was about twenty miles, and they lay south-east of him. And the greater part of these rivers had large mouths, wide and clear, with wonderful harbours for very large ships, without rocky or sandy bars or reefs. Coming thus along the coast in the direction of the south-east from the said last river he found a large village, the largest he had found until then, and he saw a great number of people come to the sea-shore crying out loudly, all naked and with their spears in their hands. He desired to speak with them and lowered the sails and anchored and sent the boats from the ship and the caravel in an orderly manner, that the Spaniards might not do and harm to the Indians or receive any front them, commanding them to give the Indians some trifles from their articles of barter. The Indians made an appearance of not allowing them to land and of resisting them. And seeing that the boats approached nearer to the land and that the Spaniards were not afraid, they withdrew from the sea. And believing that if two or three men got out of the boats they would not be afraid, three Christians landed telling them in their language not to be afraid, as they knew something of the language from conversation with the Indians they were taking with them. Finally they all started to flee so that neither a grown person nor child remained. The three Christians went to the houses which are made of straw and of the same shape as the others they had seen, and they found no one and nothing in any of them. They returned to the ships and spread the sails at mid-day to go to a beautiful cape which lay to the east, at a distance of about eight leagues. Having gone half a league along the same bay the Admiral saw in the direction of the south a very remarkable harbour and in the direction of the south-east some wonderfully beautiful countries, similar to a hilly tract of fruitful ground surrounded by mountains, and a great quantity of smoke and large villages appeared in it and the lands were highly cultivated. On this account he determined to go down to this harbour and try and see if he could have speech and intercourse with the people. He says that if he had praised
the other harbours, this one was such that he praised it more, together with the countries and their surroundings and the temperate climate and the population: he says wonders about the beauty of the land and of the trees where there are pines and palms, and about the great plain which however is not entirely level {no es llanode llano} and extends to the south-south-east, but is full of low smooth mountains, the most beautiful thing in the world, and many streams of water flow out from it, which descend from these mountains. After having anchored the vessel the Admiral jumped into the boat to sound the harbour, which is shaped like a small hammer: and when he was facing the entrance to the south he found the mouth of a river which was wide enough for a galley to enter it and so situated that it could not be seen until it was reached, and in entering it a boat's length it was five fathoms and eight fathoms in depth. In going along this river it was a wonderful thing to see the groves and verdure and the very clear water and the birds and the agreeableness, so that he says it appeared to him that he did not wish to leave there. He went on, saying to the men he had in his company that in order to make a relation to the Sovereigns of the things they saw, a thousand tongues would not be sufficient to tell it nor his hand to write it, as it appeared to him that he was enchanted. He desired that many other prudent persons and of good credit should see it, so as to be certain. He says, that they did not praise these things less than he did. The Admiral further says these words here: “How great will be the benefit which can be derived from here, I do not write. It is certain, Lords and Princes, that where there are such lands there must be an infinite quantity of profitable things: but I do not stop in any harbour because I would like to see the greatest number of lands that I can, so as to tell your Highnesses about them, and also do not know the language, and the people of these lands do not understand me nor do I or any other person I have with me, understand them: and these Indians I am taking with me, many times understand things contrary to what they are, neither do I trust much to them because they have attempted flight several times. But now, our Lord pleasing, I will see the most that I can, and little by little I will go investigating and learning, and will cause this language to be taught to persons of my house because I see that the language is all one up to the present: and then the benefits will be known, and one will labour to make all these peoples Christians as it can be done easily, because they have no sect nor are they idolaters, and your Highnesses will order a city and fortress to be built in these regions and these countries will be converted. And I certify to your Highnesses that it does not appear to me that there can be under the sun countries more fertile, more temperate in heat and cold, with a greater abundance of good and healthy waters, not like the rivers of Guinea which are all pestilent; because, praised be our Lord, until to-day, of all my people I have not bad a person who has had the headache or has been in bed from sickness, except one old man through pain from gravel, from which he has suffered all his life, and then he became well at the end of two days. I say this in regard to
all three ships. So that it will please God that your Highnesses shall send learned men here, or they shall come and they will then see the truth of everything. And as previously I have spoken of the site of a village or fortress on the Rio de Mares on account of the good harbour and the surrounding territory: it is certain that all I have said is true, but there is no comparison between that place and this, neither with the Mar de Nuestra Senora: as here there must be large villages and an innumerable population inland and things of great profit: because here and in all the other countries I have discovered and which I hope to discover before I go to Castile, I say that Christendom will enter into negotiations, and Spain much more than the rest, to which all must be subject. And I say that, your Highnesses must not consent that any foreigner set foot here or trade but only Catholic Christians, since this was the beginning and the end of the proposition that it should be for the increase and glory of the Christian religion, and that no one should come to these regions who is not a good Christian.” All are his words. He ascended the river there and found some branches and going around the harbour he found at the mouth of the river there were some very pleasant groves like a most delightful orchard, and there he found a raft or canoe made of a timber as large as a fusta with twelve benches for the rowers and very beautiful, stranded under a shed made of wood, and covered with great palm leaves, so that neither the sun nor the water could injure it and he says that there was the right place to build a village or city and fortress on account of the good harbour, good waters, good lands, good surroundings and great quantity of wood.
WEDNESDAY, NOVEMBER 28.
He remained in that harbour that day because it rained and was very dark and cloudy, although he could have run along the coast with the wind, which was south-west and would be at the stern a popa, but as he could not see the land well and not being acquainted with it, it was dangerous to the ships, and he did not start. The people of the ships landed to wash their clothes and some of them went inland a little ways and found large villages and empty houses because all the people had fled. They returned down along another river, larger than the one where they were, in the harbour.
THURSDAY, NOVEMBER 29.
As it rained and the sky was clouded they did not start. Some of the Christians reached another village near by in the direction of the north-west, and they found nothing and no one in the houses: and on the way they encountered an old man who could not flee from them: they took him and said to him that they did not wish to do him harm, and they gave him some trifles from the articles of barter and left him. The Admiral would have liked to see him to clothe him and talk with him, because he was greatly pleased with the felicity of that land and its disposition to make a settlement in it, and he judged that there must be large villages. They found in one house a cake of wax, which he brought to the Sovereigns and he says that where there is wax there must also be a thousand other good things. The sailors also found in one house the head
of a man in a little basket covered with another little basket and fastened to a post of the house and in the same manner they found another in another village. The Admiral believed that they must be the heads of some principal persons of the family, because those houses were such that many people could take refuge in one alone, and they must be relations descended from one person alone.
FRIDAY, NOVEMBER 30.
He could not start because the wind was east, very contrary to his course. He sent eight men well armed and with them two Indians from among those he was taking with him to see the villages within the country and to talk with the inhabitants. They reached many houses and found nothing nor any one, as all had fled. They saw four youths who were digging in their fields, but as they saw the Christians they fled and they could not overtake them. They went a long distance, he says. They saw many settlements and very fertile ground and all cultivated and large streams of water and near one they saw a raft or canoe ninety-five palms long built of one single timber and very beautiful, and it would hold one hundred and fifty persons and they could navigate in it. SATURDAY, DECEMBER 1.
He did not start as the wind was still contrary and as it rained hard. He placed a large cross at the entrance of that harbour which I believe he called the Puerto Santo, in some solid rocks. The point is the one on the south-eastern side at the entrance to the harbour and whoever is obliged to enter this harbour must approach nearer to the point on the north-west than to the other on the south-east. Although at the foot of both points, next to the rock, there are twelve fathoms of water and it is very clear, yet at the entrance to the harbour, off the south-east point there is a shoal which shows above the surface of the water, which is far enough distant from the point so that one can pass between them if necessary, because at the foot of the shoal and of the cape the water is all twelve or fifteen fathoms deep, and at the entrance the prow must be turned to the south-west.
SUNDAY, DECEMBER 2.
The wind was still contrary and he could not start. He says that every night there is a land breeze and that all the ships that may come there need have no fear of all the tempests in the world because they cannot reach the ships inside, on account of a shoal which is at the entrance to the harbour, etc. In the mouth of that river he says a ship's boy found certain stones which appeared to contain gold, and he brought them to show to the Sovereigns. He says that at a distance of a lombard shot from that place there are large rivers. MONDAY, DECEMBER 3.
As the wind continued contrary he did not start from that harbour and he decided to go and see a very beautiful cape a quarter of a league from the harbour in the direction of the south-east: he went with the boats and some armed people: at the foot of the cape there was the mouth of a good river. He turned his prow to the south-east in order to enter and it was a hundred paces
in width: it was a fathom deep at the entrance or in the mouth; but inside it was twelve fathoms, or five, and four, and two, and would contain as many ships as there are in Spain. Passing a branch of that river he went to the south- east and found a small bay or inlet in which he saw five very large rafts which the Indians call canoes, like fustas, very beautiful, and carved so that he says it was a pleasure to see them and at the foot of the mountain he saw that the land was all cultivated. They were under some very thick trees and in going along a path which led to them, they came across a ship yard very well arranged and covered so that neither the sun nor the water could do injury, and in it there was another canoe made of wood like the rest, like a fusta with seventeen benches for the rowers: it was a pleasure to see how it was constructed and its beauty. He ascended a mountain and then he found it all level and sowed with many products of the land and gourds, and it was delightful to see it: and in the midst of it there was a large village. He came suddenly upon the people of the village and as they saw the Spaniards they started to flee. The Indian whom the Spaniards had with them reassured them saying that they must not be afraid as they were good people. The Admiral caused them to be given hawks' bells and rings of brass and little green and yellow glass beads, with which they were much pleased. He saw that they had no gold nor any other precious thing and that it was sufficient to leave them in security and that all the surrounding territory was populated and that at the others fled through fear: and the Admiral assures the Sovereigns that ten men cause ten thousand Indians to flee. They are such cowards and so fearful that they carry no arms except spears, and on the end of the spears they have a small sharp stick which is hardened. He decided to return. He says that he easily took all the spears away from them, trading for them so that they gave away all they had. Having returned to the place where he had left the boats he sent certain Christians to the place where he had ascended, because it appeared to him that he had seen a large apiary. Before these people whom he had sent, returned, many Indians gathered and came to the boats where the Admiral had already united all his people. One of them went forward into the water near to the stern of the boat, and made a long speech which the Admiral did not understand, except that the other Indians from time to time raised their hands to heaven and shouted loudly. The Admiral thought they were re- assuring him and that his coming pleased them; but he saw the Indian he was taking with him change countenance and become yellow like wax and tremble greatly, saying by signs that the Admiral must go away out of the river as the Indians wished to kill them: and he approached a Christian who had a loaded cross-bow and showed it to the Indians and the Admiral understood that he said to them that it would kill them all because that cross-bow went a long ways and killed. He also took a sword and drew it from the scabbard, showing it to them and saying the same thing and when they heard that, they all commenced to flee, leaving the said Indian still trembling through cowardice and lack of courage, and he was a strong man and of good stature. The
Admiral would not go out of the river but rather made them row inland toward the place where the Indians were, who were in great number, all stained with red and naked as their mothers gave them birth and some of them had feathers upon their heads and other plumes, and they all had handfuls of spears. “I approached them and gave them some mouthfuls of bread and asked them for their spears and I gave them for the spears, to some a small hawk's bell, to others a cheap little brass ring, and to others some worthless little beads: so that they all became pacified and they all came to the boats and gave us whatever they had for whatever was given them. The sailors had killed a tortoise and the pieces of the shell lay in the boat and the boys gave the Indians a piece as large as the finger nail, and the Indians gave them a handful of spears. They are people like the others I have found (says the Admiral) and have the same belief, and they believe that we came from heaven and whatever they have they without saying that it is little then give for whatever may be given them, and I believe that they would do the same with spices and gold if they had them. I saw a beautiful house not very large and having two doors, as they are all built so, and I entered it and saw a wonderful arrangement like chambers constructed in a certain manner which I do not know how to describe, with shells and other things fastened to the ceiling. And I thought it was a temple, and I called them and asked by signs if they prayed in it, and they said no, and one of them went up overhead and gave me all they had there, and I took some of it.”
TUESDAY, DECEMBER 4.
He made sail with a light wind arid went out of that port which he named Puerto Santo: at a distance of two leagues he saw a good river of which he spoke yesterday. He went along the coast and all the land beyond the said cape extended east-south-east and west-north-west as far as Cabo Lindo which is to the east of the Cabo del Monte quarter south-east, and it is five leagues from one to the other. A league and a half from the Cabo del Monte there is another large river, somewhat crooked, and it appeared to have a good entrance and to be very deep; and three-quarters of a league from there he saw another very large river and it must flow from a long distance. It was a good one hundred paces wide at the mouth and there was no shoal in it and it was eight fathoms deep and had a good entrance, because he sent a boat to see it and sound it: and the water is fresh at some distance out into the sea and it is one of the richest he has found and must have large villages. Beyond Cabo Lindo there is a large bay which extends some distance to the east-north-east and south-east and south-south-west.
WEDNESDAY, DECEMBER 5.
During all this night he beat about off Cabo Lindo, where he was at nightfall, in order to see the country which extended to the east and at sunrise he saw another cape two leagues and a half to the east: having passed that he saw that the coast turned to the south and inclined to the south-west and then saw a very high and beautiful cape in the said course and it was distant seven
leagues from the other: He would have liked to go there had it not been that he was desirous of going to the island of Babeque which lay to the north-east according to what the Indians he was taking with him said, so he left it. Neither could he go to Babeque because the wind which was prevailing was north-east. While going along in this manner he looked to the south-east and saw land I and it was a very large island of which he says he had already been told by the Indians and that they called it Bohio and it was inhabited. He says that the inhabitants of Cuba or Juana and of all the other islands are very much afraid of these people, because he says that they eat men. The said Indians told him other very wonderful things by signs: but the Admiral does not say that he believed them, only that the natives of that island of Bohio must be more astute and intelligent in order to capture the others, as they were very much lacking in courage. Therefore as the wind was north-east and was becoming north, he determined to leave Cuba or Juana, which up to that time he had considered to be the continental land on account of its size as he had gone fully one hundred and twenty leagues on one of its coasts, and he started to the south-east quarter east; although the land which he had seen receded to the south-east this insured protection, because the wind always changed around from north to north-east and from there to the east and south-east. The wind changed a great deal and he carried all his sails, the sea was calm and the current helped him so that from morning until one o'clock he made eight miles an and that was not quite six hours, because they say there that the nights are about fifteen hours; afterwards he went ten miles an hour: and in this manner he went until sunset eighty-eight miles, which are twenty-two leagues all to the south-east. And as it was getting towards night, the Admiral ordered the caravel Niña to go onward and see the harbour by daylight, as she was a fast sailor: and on reaching the mouth of the harbour which was like the bay of Cadiz and as it was already night, the Niña sent her boat to sound the harbour which boat carried a lighted candle: and before the Admiral reached the place where the caravel was beating about and waiting for the boat to make signals to enter the harbour, the light in the boat was extinguished. As they saw no light the caravel ran out and made a light for the Admiral to see and he having reached them, they told him what had happened. While they were in this situation, the people in the boat made another light. The caravel went to the boat and the Admiral was not able to do so and remained all that night beating about.
THURSDAY, DECEMBER 6.
When dawn came he found himself four leagues from the harbour. He named it Puerto Maria and he saw a beautiful cape to the south, quarter south-west which he named Cabo del Estrella, and it appeared to him that it was the last land of that island toward the south, and that the Admiral was about twenty- eight miles distant from it. Another country appeared to the east, like an island of no great size, at a distance of about forty miles. Another very beautiful cape of good shape lay to the east quarter south-east which he named Cabo del
Elefante, and it was fifty-four miles distant from him. Another cape lay to the east-south-east which he named Cabo de Cinquin, and it was about twenty- eight miles distant from him. There was a large opening or arm of the sea which appeared like a river to the south-east a little on the quarter of the east and it was a matter of twenty miles distant from him. It appeared to him that between the Cabo del Elefante and Cinquin there was a very large channel and some of the sailors said it was a division of the island: he named that the Isla de la Tortuga. That great island appeared to be a very high land, not encircled by mountains but level like beautiful fields and it appeared to be all cultivated or a large part of it and the crops looked like wheat in the month of May in the country of Cordova. They saw many fires that night and by day much smoke like watch towers which appeared to be to guard against some people with whom they might be at war. At the coast of this land extends to the east. At the hour of vespers they entered the said harbour and as it was the day of St. Nicholas he named it Puerto de San Nicolao his honour, and at the entrance of the harbour they wondered at its beauty and goodness. And although he has praised the harbours of Cuba greatly, still without doubt he says that this one is not inferior hut rather surpasses them and none of them are similar to it. At the mouth and entrance it is a league and a half wide and the prow is turned to the south-south-east, although on account of the great width the prow can be turned wherever desired. It extends in this manner to the south-south-east two leagues: and at its entrance in the direction of the south it forms something like a promontory and from there it extends thus level as far as the cape where there is a very beautiful beach and a field of trees of a thousand kinds and all loaded with fruits which the Admiral believed to be spices and nutmegs but as they were not ripe he did not recognise the kind: and there was a river in the middle of the beach. The depth of this harbour is wonderful as up to arriving at land for a length of {lacuna} the lead did not touch the bottom at forty fathoms and there is, up to this stretch of water, a depth of fifteen fathoms and it is very clear, and so all the said harbour from each point up to the distance of a pace from land, is fifteen fathoms deep and clear. And in this manner all the water along the coast is very deep and clear so that not a single shoal appears: and at the foot of the land at about the distance of a boat's oar from it, it is five fathoms in depth and beyond the space of the said harbour, extending to the south-south-east, in which harbour a thousand caracks could beat about, an inlet of the harbour extends to the north-east a good half league inland, and always of the same width as if it were measured with a cord. It is so situated that being in that inlet which is twenty-five paces in width, the mouth of the large entrance cannot be seen, so that this harbour is inclosed; and the depth of this inlet from the beginning to the end is eleven fathoms and it all has a sandy bottom and it is eight fathoms deep up to where the vessels can touch land. All the harbour is very breezy and desabahado shelterless and there are no trees around it. All this island appears to have more rocks than any other which has been found: the trees are smaller and many of them are
the same kind as those in Spain such as evergreen oaks and strawberry trees and others, and the same thing is true in regard to the grasses. The land is very high and all smooth and the breezes are very good, and it has not been as cold anywhere as here, although it is not to be considered as cold, but the Admiral called it so in comparison with the other countries. Opposite that harbour there was a beautiful plain and in the centre of it the aforesaid river: and in that region, he says, there must be great numbers of people since they saw the canoes in which so many of them navigate and some of them as large as a “fusta” with fifteen benches for the rowers. All the Indians fled when they saw the ships. Those Indians he was taking with him from the small islands were so desirous of going to their country, that they thought says the Admiral that after he left this place he was to take them to their homes, and that already they were suspicious because he did not take the route for their homes. On this account he says that he did not believe what they said nor did he understand them well nor did they understand him, and he says they were in the greatest fear in the world of the people of that island. So that if he had desired to talk with the people of that island it would have been necessary for him to remain there some days in that harbour, but he did not do it on account of seeing so much land and as he was doubtful that the good weather would continue. He hoped in the Lord that the Indians he was carrying would know his language and he would know theirs, and then he would return and would talk with this people, and that it would please the Lord (he says) that he should find a good trade in gold before he returned.
FRIDAY, DECEMBER 7.
At the passing of the quarter of dawn he made sail and started out of that Puerto de San Nicolas and navigated with the wind south-west two leagues to the north-east as far as a point which the Carenero makes, and a small promontory lay to the south-east and the Cabe de la Estrella to the south-west and from this the Admiral was twenty-four miles distant. From there he navigated to the east along the coast as far as Cabo Cinquin, a distance of about forty-eight miles. It is true that twenty miles of this extended to the east, quarter north-east and that coast is all a very high land and the water of great depth; it is twenty and thirty fathoms up to the edge of the land and at a distance of a lombard shot from land the bottom cannot be readied. The Admiral proved all this on that day along the coast, much to his pleasure, with the wind south-west. The promontory above mentioned, he says, reaches within a lombard shot of the Puerto de San Nicolas, and if it were cut off and made an island, it would be about three or four miles around. All that country was very high and did not have large trees but only evergreen oaks and strawberry-trees the same he says, as in the land of Castile. Before he reached the Cabo Cinquin and within two leagues, he discovered a small opening like a cut in the mountain, through which he discovered a very large valley and he saw that it was all sown with barley and he thought that there must be a great many people in that valley and on the borders of it there were large and high
mountains and when he reached the Cabo de Cinquin the Cabo de la Tortuga lay to the north-east at a distance of about thirty-two miles, and off this Cabo Cinquin at the distance of a lombard shot is a rock in the sea which stands high up and which can be seen very well. And the Admiral being off the said Cape the Cabo del Elefante lay to the east, quarter south-east and was at a distance of about seventy miles and all the land was very high. And at a distance of six leagues he saw a large bay and he saw in the land within very large valleys and tracts of arable land and very high mountains, all like those in Castile. And then at a distance of eight miles he found a very deep river but very crooked, although one carack could enter it very well and the mouth was free from banks or shoals. And then at a distance of sixteen miles he found a very wide harbour, and so deep that he did not find the bottom at the entrance and only at three paces from the shore, where it was fifteen fathoms and it extends inland a quarter of a league. And although it was still very early being one o'clock after mid-day and the wind was in the stern and very strong, still because the sky looked as though it would rain very hard and it was very dark and cloudy,–which if it is dangerous in a familiar country is much more so when it is unfamiliar,–he decided to enter the harbour which he named Puerto de la Concepcion, and went to land in a rather small river which is at the end of the harbour, and which flows through some plains and level tracts of arable land which were wonderful to see on account of their beauty. He took nets to fish, and before he reached land a mullet {lisa} like those in Spain, jumped into the boat and until that time no fish had been seen like those in Castile. The sailors fished and killed others, also soles and other fish like those in Castile. He went a short distance along that country which is all cultivated and he heard the nightingales sing and other small birds like those of Castile. They saw five men, but they would not wait and fled. He found myrtle and other trees and grasses like those in Castile and the country and the mountains are like Castile.
SATURDAY, DECEMBER 8.
There in that harbour it rained hard with the wind in the north and very strong. The harbour is safe from all the winds except the north wind although it cannot do any damage to vessels because there is a great surf or undertow which does not allow the ship to work upon the cables nor the water from the river {que no da lugar a que la nas labore sobre las amarras ni el agua del rio}. After midnight the wind shifted to the north-east and afterward to the east. This harbour is well sheltered from these winds by the island of Tortuga which is opposite it at a distance of thirty-six-miles.
SUNDAY, DECEMBER 9.
This day it rained and the weather was wintry the same as in Castile in the month of October. No village had been seen except one very beautiful house in the Puerto de S. Nicolas and which was constructed better than those which had been seen in other places. The island is very large and the Admiral says that it will not be much to say that it measures two hundred leagues around
{ne sera mucho que boje doscientas leguas}. He has seen that it is all well cultivated. He believed that all the villages must be at some distance from the sea from which place they can see when he is approaching, and so the inhabitants all fled and took with them all they had and lighted signal fires as though they were war-like people. This harbour is a thousand paces at the mouth which is a quarter of a league. In it there is no bank or shoal but rather the bottom can hardly be found until you go in to the shore of the sea and inside it extends a thousand paces in length all clear and with a sandy bottom, so that any ship whatever can anchor in it without fear and enter without caution. At the head of the harbour there are the mouths of two rivers which discharge a small quantity of water. Opposite there are some of the most beautiful plains in the world and which are almost like the lands of Castile only these are better, and on this account he named the island Espanola. MONDAY, DECEMBER 10.
The wind blew hard from the north-east and caused the anchors to drag half a cable's length at which the Admiral wondered, and he thought it was because the anchors were near land and the wind blew toward it. And having seen that the wind was contrary for him to go where he desired, he sent six men well armed on land, with orders to go two or three leagues inland to see if they could talk with anyone. They went and returned not having found any people or houses. They found nevertheless some huts and very wide roads, and places where many fires had been made. They saw the best lands in the world and they found many mastic trees and they brought some of it and said that there was a great deal, but that now is not the time to gather it because it does not now form into gum.
TUESDAY, DECEMBER 11.
He did not start on account of the wind which was still east and north-east. In front of that harbour as has been said is the Isla de la Tortuga and it appears like a large island and the coast extends almost in the same direction as that of Espanola, and it may be at the most, from one to the other, ten leagues: that is to say, from the Cabo de Cinquin at the head of Tortuga, for then its coast extends to the south. He says he would like to see that place between these two islands in order to see the Isla Espanola, which is the most beautiful thing in the world, and because according to what the Indians he had with him said, one must go yonder to reach the island of Babeque. These Indians said that it was a very large island with very large mountains and rivers and valleys, and they said that the island of Bohio was larger than Juana which they call Cuba, and that it is not surrounded by water: and they appear to give it to be understood as continental land which is here behind this Espanola, and which they call Caritaba and say that it is of infinite importance and they almost make it appear reasonable that these countries may be harassed by astute people because the inhabitants of all these islands live in great fear of the people of Caniba, “and so I repeat as I have said at other times (he says) that Caniba is no other than the people of the Great Khan who must be very near
here and have ships and come to capture these people, and as the captives do not return they believe they have eaten them. Each day we understand these Indians better and they understand us better, although many times they may have understood one thing for another (says the Admiral).” He sent people on land and they found a great deal of mastic not coagulated, and he says the rains must do this, and that in Xio they gather it in March and that in January they could gather it in these countries as it is so temperate. They caught many fish like those in Castile, dace, salmon, hake, doree, pampano, lisas mullet, conger eels, shrimp, and they saw sardines. They found a great deal of aloe. WEDNESDAY, DECEMBER 12.
They did not start on this day on account of the aforesaid contrary wind. He placed a large cross at the entrance of the harbour on the western side, on a very slight elevation, “as a sign (he says) that Your Highnesses hold the land for your own and principally as a sign of Jesus Christ, our Lord, and in honour of Christianity.” Having placed the cross, three sailors started up the mountain to see the trees and grasses and they heard a large crowd of people, all naked like those they had seen, and they called to them and went after them, but the Indians fled. “And finally they took a woman who could go no farther because I (he says) had ordered them to take some of the Indians in order to show them honour and cause them to lose their fear and see if they had profitable things, as it appeared it could not be otherwise on account of the beauty of the country: and so they brought the woman, a very young and beautiful girl, to the ship, and she talked with those Indians, because they all had the same language.” And the Admiral caused her to be clothed and gave her glass beads and hawks' bells and brass rings, and sent her to land again very honourably, according to his custom. He sent some persons from the ship with her; and three of the Indians he had with him, to talk with that people. The sailors who went in the boat, when they took her to land, told the Admiral that she did not wish to go out of the ship if she could not remain with the other Indian women he had caused to be taken in the Puerto de Mares de la Isla Juana of Cuba. All these Indians who came with that Indian woman, he says, came in a canoe, which is their caravel in which they navigate everywhere, and when they appeared at the entrance of the harbour and they saw the ships they turned backward and left the canoe yonder in some place, and went away on the road to their village. The Indian woman showed the location of the village. This woman wore a small piece of gold in her nose, which was an indication that there was gold in that island.
THURSDAY, DECEMBER 13.
The three men whom the Admiral had sent with the woman returned at three o'clock in the night, and they did not go with her as far as the village because it appeared a long way off, or because they were afraid. They said that the next day many people would come to the ships because they must already be re-assured by the news the woman would give them. The Admiral being desirous to learn whether there was anything valuable in that country and in
order to have some conversation with the people as their land was so beautiful and fertile, and that they might be disposed to serve the Sovereigns, decided to send again to the village, confiding in the news given by the Indian woman that the Christians were good people. For this purpose he selected nine men well prepared with arms and adapted for such an affair, with whom an Indian from among those he had with him went also. They went to the village which was four leagues and a hall to the south-east and which they found in a very large valley and unoccupied; because when the Indians heard the Christians coming, they all fled inland leaving whatever they had behind them. The village consisted of more than three thousand men and had a thousand houses. The Indian the Christians had with them, ran after the others calling to them, saying that they must not be afraid as the Christians were not from Cariba, but instead they were from heaven and that they gave many beautiful things to every one they found. They were so much impressed with what he said, that they were re-assured and more than two thousand came together, and all came to the Christians and placed their hands upon their heads, which was a sign of great reverence and friendship, and they were all trembling until they were greatly re-assured. The Christians said that after they were entirely freed from fear they all went to their houses, and each one brought them some of whatever they had to eat, which was bread of “niames” I which are roots like large radishes, which they sow and which grow and are planted in all their lands, and upon which they live: and they make bread of them and boil and roast them and they taste like chestnuts, and there is no one who does not believe, in eating them, that they are chestnuts. They gave the Christians bread and fish and whatever they had. And as the Indians he had in the ship had understood that the Admiral desired to have a parrot, it appears that the Indian who was with the Christians told the other Indians something of this, and so they brought the Christians parrots and gave them as many as they wished without requiring anything for them. They begged them not to come away that night and said they would give them many other things they had in the mountains. At the time when all those people were together with the Christians they saw a great multitude of people coming with the husband of the woman whom the Admiral had honoured and sent back. They were carrying this woman upon their shoulders and they came to thank the Admiral for the honour he had done her and the presents he had given her. The Christians told the Admiral that they were all a handsomer people and of better disposition than any others they had found until that time: but the Admiral says that he does not know how they can be of better disposition than the others, causing it to be understood that all those who had been found in the other islands were very well disposed. As to their beauty the Christians say that there is no comparison as well in the women as the men and that they are whiter than the others and that among the rest they saw two young girls as white as any could be in Spain. They said also in regard to the beauty of the lands that the best in Castile in beauty and goodness had no comparison with
them, and the Admiral also saw it from those he had seen and from those he had before him, and they told him that those which he saw were not to be compared with the lands in that valley and that they were as much different from the field of Cordova as day is from night. They said that all those lands were cultivated and that a river flowed through the middle of that valley very large and wide, and which could irrigate all the lands. All the trees were green and full of fruit, and the grasses were all in flower and very high: the roads were very wide and good, the breezes were like those in Castile in the month of April, the nightingale and other small birds were singing as they do in Spain in the same month, so that they say it was the sweetest thing in the world. Small birds sang sweetly during the nights: many crickets and frogs were heard: there were fish the same as in Spain. They saw many mastic trees and aloes and cotton plantations: they found no gold and it is not wonderful that in such a short time they did not find any. The Admiral here ascertained the number of hours in the day and the night and from sun to sun; he found that twenty ampolletas glasses of half an hour each passed, although he says there might have been some error either because they were not turned quickly enough, or because some of the sand did not run through. He says also that he found by the quadrant that he was thirty-four degrees distant from the equinoctial line.
FRIDAY, DECEMBER 14.
He started from that Puerto de la Concepcion with a land breeze, and then after a little it calmed, and thus he experienced it each day of those he remained there. Afterward the wind became east. He navigated in this wind to the north-north-east and reached the Isla de la Tortuga and saw a point on this island which he called the Punta Pierna which was to the east-north-east of the head of the island, and might be at a distance of twelve miles, and from there he discovered another point which he called the Punta Lanzada in the same route to the north-east, which was about sixteen miles distant. And thus from the head of the Tortuga as far as the Punta Aguda it would be about forty-four miles, which are seven leagues, to the east-north-east. On that course there were some long strips of beaches. This island of Tortuga is a very high country but not mountainous, and is very beautiful and well populated the same as the island of Espanola and the land is all so cultivated that one appears to see the field of Cordova. Having seen that the wind was contrary and that he could not go to the island of Babeque, he decided to return to the Puerto de la Concepcion, from whence he had started, and he was not able to reach a river which is two leagues from the said harbour in the direction of the east.
SATURDAY, DECEMBER 15.
He started from the Puerto de la Concepcion again on his course, but on going out of the harbour the wind blew strongly from the east which was contrary for him, and he turned and went to the Tortuga and from there he made an excursion to see that river which he had wished to see and reach
yesterday and was not able to do so, and this time he could not make it either, although he anchored half a league to the leeward on a beach,–a good and clear harbour. Having anchored his vessels he went with the boats to see the river and entered an arm of the sea which is a half league nearer and it was not the mouth. He returned and found the mouth which was not even a fathom in depth and which had a very strong current: he entered it with the boats in order to reach the villages which the people he had sent the day before yesterday had seen and he threw the line on land and by means of the sailors pulling on it the boats ascended a distance of two lombard shots and he was not able to go farther on account of the strong current in the river. He saw some houses and the large valley where the villages are, and he said that he had never seen a more beautiful thing; and that river flowed through the middle of the valley. He also saw people at the entrance to the river, but all started to flee. He says further that those people must be very much hunted since they live in so much fear, because on reaching any place they make smoke signals by means of towers throughout all the land, and they do this more in this island of Espanola and in Tortuga, which also is a large island, than in the others he had left behind. He named the valley Valle del Paraiso and the river Guadalquivir, because he says that it flows thus as large as the Guadalquivir by Cordova, and it shows very beautiful stones on its banks or edges and it is all navigable.
SUNDAY, DECEMBER 16.
At midnight in a very light land breeze be made sail to get out of that gulf, and in coming from the coast of the Isla Espanola he sailed close to the wind because afterward at the hour of tercia the wind blew from the east. In the middle of the gulf he found a canoe with an Indian alone in it, upon which the Admiral wondered how he was able to keep himself upon the water when there was such a high wind. He caused him and his canoe to be placed in the ship, and to flatter him, gave him glass beads, hawks' bells and brass rings and took him in his ship to land at a village which was sixteen miles from there beside the sea, where the Admiral anchored and found a good anchorage on the beach next to the village, which appeared to be newly built because all the houses were new. The Indian then went away with his canoe to land and gave news of the Admiral and of the Christians as being good people although they already considered them so through information from the others where the six Christians had gone, and then more than five hundred men came and after a little their King came, and they all gathered on the beach near the ships for they were anchored very near the land. And then one by one and in crowds they came to the ship without bringing anything with them, although some of them wore grains of very fine gold in their ears and noses, which they then gave away willingly. The Admiral ordered that all should be treated honorably, “and (says he) because they are the best and mildest people in the world: and above all because I have great hope in our Lord that your Highnesses will make them all Christians and they will all belong to you, for I
regard them as yours.” He saw also that the said King was on the beach as they all showed him respect. The Admiral sent him a present which he says he received with great state, and that he must have been a young man of about twenty-one years of age, and that he had an old governor or tutor and other counsellors who counseled him and replied to him and that he spoke very few words. One of the Indians the Admiral had with him spoke with the King and told him how the Christians came from heaven and that they were going in search of gold, and wished to go to the Isla de Beneque: and he replied that it was well and that in the said island there was a great deal of gold; he showed the Admiral's Alguacil who took him the present, the course that must be taken to go there and said that in two days one could go from that place to the island, and that if the Spaniards needed anything in his country, he would give it to them very willingly. This King and all the others went about naked as their mothers gave them birth, and the women also, without any timidity and they are the handsomest men and women who had been found up to that time: exceedingly white so that if they wore clothing and were protected from the sun and the air they would be almost as white as the people in Spain, for this country is very cool and the best that language can describe: it is very high and upon the highest mountain ploughing could be done with oxen and everything could be transformed into arable lands and fields. In all Castile there is no land which can be compared to this in beauty and goodness. All this island and the island of Tortuga are entirely cultivated like the field of Cordova. They have the fields sown with “ajes” which are little branches which they plant, and at the foot of them small roots grow like carrots which serve as bread, and they grate them and knead them and make bread of them and afterward they plant the same little branch again in another place and it again produces four or five of those roots which are very palatable, and taste exactly like chestnuts. These which grow here are the largest and best he had seen anywhere, as he also says that he had them in Guinea. Those which grew in this place he says were as thick as the leg, and he says that all of the people there were strong and courageous and not feeble like the others he had found before, and they conversed very pleasantly and had no sect. And the trees there he says were so luxuriant that the leaves were not green but blackish in colour. It was a wonderful thing to see those valleys and the rivers and good waters and the lands suitable for bread-foods and for flocks of all kinds of which they had none, and suitable for orchards and for all the things in the world that a man may ask. Afterward in the afternoon the King came to the ship: the Admiral paid him the honour which was due him, and caused it to be said to him that he came from the Sovereigns of Castile who were the greatest Sovereigns in the world. But neither the Indians who were with the Admiral, who were the interpreters, believed anything of this, or the King either, but they believed the Christians came from heaven and that the realms of the Sovereigns of Castile were in the heavens and not in this world. The Christians gave the King some of the things of Castile to eat and he ate a mouthful and
afterward gave all to his counsellors and to the Governor and to the others who were with him. “Your Highnesses may believe that these lands are so numerous and good and fertile and especially these of this Isla Espanola that there is no one who can describe it, and no one can believe it if he does not see it. And they may believe that this island and all the others are as much theirs as Castile as all that is necessary here is to build a town and order them to do what is desired. For I, with the people I have with me, who are not many in number, could go through these islands without any affront; as I have already seen three of these sailors go on land where there was a multitude of the Indians and they all fled without any one's wishing to do them harm. They have no arms and are all naked and have no knowledge of arms and are very cowardly, for a thousand of them would not face three Christians: and so they are suitable to be governed and made to work and sow and do everything else that shall be necessary, and to build villages and be taught to wear clothing and observe our customs.”
MONDAY, DECEMBER 17.
It blew that night strongly, the wind being east-north-east but the sea did not change much, because the Isla de la Tortuga which is in front of it and makes a shelter for it, protected and guarded it. So he remained there during that day. He sent some of the sailors to fish with nets. The Indians associated with the Christians a great deal and they brought them certain arrows belonging to the people of Caniba or the Canibales, and these arrows are made of spikes of canes and they use some little sharp hardened sticks for them and they are very large. They showed the Christians two men who had lost some pieces of flesh from their bodies, and made them understand that the Cannibals had eaten them by piece-meals. The Admiral did not believe it. He again sent certain Christians to the village, and by trading some worthless little glass beads they obtained some pieces of gold beaten into the form of a thin leaf. One Indian whom the Admiral took for the Governor of that Province and who was called Cacique, they observed to have a piece of that gold leaf as large as the hand and it appeared that he wished to trade it. He went away to his house and the others remained in the plaza and he caused that piece of gold to be broken into very small pieces, and bringing a piece at a time, he traded for it. After there was no more remaining, he said by signs that he had sent for more and the next day they would bring it to him. All these things, and their manner, and their customs, and meekness and counsel show them to be a more alert and intelligent people than the others he had found up to that time, says the Admiral. In the afternoon a canoe came there from the Isla de la Tortuga with all of forty men and on reaching the beach all the people of the village who were together seated themselves as a sign of peace, and some from the canoe, and then almost all came on land. “The Cacique arose alone and with words which appeared to be threatening made them return to the canoe and threw them water and took stones from the beach and threw them in the water: and after all had very obediently placed themselves in the canoe and
embarked, he took a stone and placed it in the hand of my Alguacil whom I had sent on land with the Escribano and others to see if they could bring back anything valuable,–that he might throw it, and the Alguacil would not do so.” That Cacique there showed very plainly that be favoured the Admiral. The canoe then went away and they said to the Admiral after its departure that in Tortuga there was more gold than in the island of Espanola because it is nearer Baneque. The Admiral said that he believed there were no mines of gold either in the Isla Espanola or Tortuga, but that they brought it from Baneque and that they bring a small quantity because they have nothing to give for it, and that country is so rich that it is not necessary for them to work much to sustain themselves or clothe themselves as they go naked. And the Admiral believed that this was very near the fountain head and that our Lord was about to show him where the gold originates. He was informed that from there to Baneque it was four days' journey which must have been thirty or forty leagues, which he could make in one day of good wind.
TUESDAY, DECEMBER 18.
He remained anchored by this beach during this day as there was no wind and also because the Cacique had said that gold would be brought not because he considered says the Admiral that much gold could be brought as there were no mines there, but in order to know better from whence it was brought. Then at dawn he ordered the ship and caravels decorated with arms and banners for the festival, as this was the day of Sancta Maria de la O, or the commemoration of the Annunciation. They fired many lombard shots: and the King of that Isla Espanola says the Admiral had arisen early from his house which must have been at a distance of five leagues from there, as well as he could judge, and he reached that village at the hour of tercia, where there were already some of the people from the ship whom the Admiral had sent to see if any gold was brought: these Christians said that more than two hundred men came with the King and that four men brought him in a litter and that he was a young man as told above. To-day as the Admiral was eating below the forecastle the King arrived at the ship with all his people. And the Admiral says to the Sovereigns: “With out doubt his state and the respect which they all show him would appear well to your Highnesses, although they are all without clothing. And as be entered the ship he found that I was eating at the table below the stern forecastle, and he came quickly to seat himself beside me and would not allow me to go to meet him or get up from the table but only that I should eat. I thought that he would like to eat some of our viands: and I then ordered that things should be brought him to eat. And when he entered under the forecastle, he signed with his band that all his people should remain without and they did so with the greatest haste and respect in the world and all seated themselves on the deck, except two men of mature age whom I took to be his counsellors and governors and who came and seated themselves at his feet: and of the viands which I placed before him he took of each one as much as may be taken for a salutation and then he sent the rest to his people and
they all ate some of it and he did the same with the drink which he only touched to his mouth and then gave it to the others in the same way and it was all done in wonderful state and with very few words and whatever he said, according to what I was able to understand, was very formal and prudent and those two looked in his face and spoke for him and with him and with great respect. After eating, a page brought a belt which is like those of Castile in shape, but of a different make, which he took and gave to me and also two wrought pieces of gold which were very thin, as I believe they obtain very little of it here, although I consider they are very near the place where it has its home and that there is a great deal of it. I saw that a drapery that I had upon my bed pleased him. I gave it to him and some very good amber beads which I wore around my neck and some red shoes and a flask of orange flower water, with which he was so pleased it was wonderful; and he and his governor and counsellors were very sorry that they did not understand me, nor I, them. Nevertheless I understood that he told me that if anything from here would satisfy me that all the island was at my command. I sent for some beads of mine where as a sign I have an 'excelente' of gold upon which the images of your Highnesses are engraved and showed it to him, and again told him the same as yesterday that your Highnesses command and rule over all the best part of the world and that there are no other such great Princes: and I showed him the royal banners and the others with the cross, which he held in great estimation: and he said to his counsellors that your Highnesses must be great Lords, since you had sent me here from so far without fear: and many other things happened which I did not understand, except that I very well saw he considered everything as very wonderful.” Then as it was already late and he wished to go away, the Admiral sent him in the boat with great honours and caused many lombards to be fired; and having reached land he got into his litter and went away with his two hundred men and more, and his son was carried behind him on the shoulders of an Indian, a very honourable man. Wherever he encountered the sailors and people from the ships, he ordered that something to eat should be given them and they should be paid a great deal of honour. A sailor said that he had met him on the way and had seen that all the things which the Admiral had given him were each one carried before the King by a man, who appeared to be one of the most important men. His son was following behind the King at some distance with as large a number of people as he had, and likewise a brother of the King, except that the brother was on foot and two of the principal men were leading him by the arms. This brother came to the ship, after the King came, and the Admiral gave him some things from the said articles of barter and then the Admiral learned that the King was called in his language Cacique. On this day he says he traded for only a small quantity of gold: but the Admiral learned from an old man that there were many islands in that vicinity at a distance of a hundred leagues and more, according to what he could understand, in which a great quantity of gold is found and in the others there is so much that he told
him there was an island which was all gold, and there is such a quantity in the others that they gather it and sift it as with sieves and melt it and make “bars” and work it in a thousand ways: they show the manner in which this is done, by signs. This old man indicated to the Admiral the course to these islands and the place where they lay: the Admiral determined to go there and said that if the said old man had not been one of the principal persons belonging to the King that he would have detained him and taken him with him, or if he had known the language that he would have begged him to accompany him and be believed as he was on such good terms with him and with the Christians, that he would have gone with him of his own will. But as he already considered those people as belonging to the Sovereigns of Castile and it was not right to offend them, he decided to leave him. He placed a very large cross in the centre of the plaza of that village in which the Indians assisted greatly: and they said prayers, he said, and adored it, and from their actions the Admiral hopes in the Lord that all those islands are to be Christianised. WEDNESDAY, DECEMBER 19.
This night he made sail to get out of that gulf which the isla Espanola and Tortigo make there, and when day arrived the wind changed to the east, on which account during all that day he could not get out from between those two islands, and at night he was not able to reach a harbour I which appeared there. He saw four points of land near there and a large bay and river and from that place he saw a very large promontory, and there was a village and back of it a valley between many very high mountains, covered with trees which he judged to be pines; and upon the Dos Hermanos there is a very high and large mountain which extends from north-east to south-west and to the east-south- east of the Cabo de Torres there is a small island which he named Santo Tomas as the next day was his vigil. All around that island there are capes and wonderful harbours, according to what he could judge from the sea. In the forepart of the island on the western part there is a cape partly high and partly low which projects far out into the sea and on that account he named it Cabo Alto y Bajo. At a distance from Torres of sixty miles in the direction of the east, quarter south-east, there is a higher mountain than the other which projects into the sea and appears at a distance to be an island by itself on account of a cut which it has on the land side. He named it Monte Caribata because that province is called Caribata. It is very beautiful and covered with trees of a bright green without snow and without mists and the weather there in respect to the breezes and temperateness was the same as it is in Castile in the month of March and in respect to the trees and grasses it was like the month of May in Castile. The nights, he says, were of fourteen hours duration. THURSDAY, DECEMBER 20.
To-day at sunset he entered a harbour which was between the island of Santo Tomas and the Cabo de Caribata, and anchored. This harbour is very beautiful and all the ships there are in Christendom could be contained therein. Its entrance appears impossible from the sea to those who have not
entered it, on account of some obstructing rocks which extend from the mountain almost as far as the island and which are not placed in order, but there is one here and another there, some in the sea and some by the land. On this account it is necessary to be watchful, in order to enter it by some entrances it has which are very wide and suitable to enter without fear, and the water is all seven fathoms deep and having passed the rocks it is twelve fathoms deep inside. The ship can be fastened with any cord whatever against any winds there may be. At the entrance of this harbour he says there is a channel {canal} which lies to the west of a small sandy island and there are many trees upon this island, and up to the foot of it there are seven fathoms of water: but there are many shoals in this vicinity and it is necessary to keep the eyes open until the harbour is entered: then there is no fear of all the tempests in the world. From that harbour a very large valley appeared, all cultivated, which descends to the harbour from the south-east: it is all surrounded with very high mountains which appear to reach heaven and are very beautiful and covered with green trees; and without doubt there are mountains there which are higher than the island of Tenerife in Canaria, which is held to be the highest that can be found. A league from this part of the Isla de Santo Tomas there is another small island and nearer than that, another; and in all there are wonderful harbours but it is necessary to look out for the shoals. The Admiral saw villages and the smoke which they made.
FRIDAY, DECEMBER 21.
To-day he went with the boats from the ships to see that harbour: which he saw to be such that he affirms none yet seen is equal to it: and he excuses himself saying that he has praised those he has passed so much that he does not know how to rate this one highly enough: and he fears that he may be considered as magnifying the truth of things to an excessive degree. He guards against this, saying: that he is taking old sailors with him and these say, and will say the same, and so also every one of those who go on the sea: that is to say, that all his praises of the harbours he has passed are true and it is also the truth that this harbour is much better than all the others. He further says, as follows: “I have been twenty-three years upon the sea without quitting it for any time long enough to be counted, and I saw all the East and West as it is called in going to the north, which is England, and l have travelled through Guinea, but in all these regions the perfection of harbours will not he found…{lacuna of a line and a half} found always the {lacuna} better than the other. I considered what I had written very carefully and I say again that I assert I have written well and that now this harbour surpasses all the others, and all the ships in the would could be contained in it, and it is so sheltered that the oldest cable on a ship would hold it fast.”
It is five leagues from the entrance to the innermost point. He saw very well cultivated lands, although they are all like that, and he ordered two men to get out of the boats and go to an elevation to see if there was a village, because none could be seen from the sea: although that night about ten o'clock
certain Indians came to the ships in a canoe to see the Admiral and the Christians, as being something wonderful, and the Admiral gave them some of the articles of barter with which they were greatly pleased. The two Christians returned and told where they had seen a large village a little distance from the sea. The Admiral ordered them to row toward the place where the village was until they arrived near the land, and he saw some Indians who came to the
sea-shore and it appeared that they came with fear, on which account he ordered the boats stopped and told the Indians he was carrying in the ships, to speak to them and tell them that no injury would be done to them. They then drew nearer to the sea and the Admiral drew nearer to the land, and after they became entirely free from fear, so many came that they covered the land, offering a thousand thanks, the men as well as the women and children. Some ran here and others there to bring us bread which they bake from niames, which they call “ajes,” which is very white and good and they brought us water in gourds and in clay pitchers shaped like those of Castile, and they brought us all they had in the world and knew the Admiral wished for, and all so generously and joyfully that it was wonderful “and it cannot be said that because what they gave us was of little value that on this account they gave it freely (says the Admiral) because those who gave pieces of gold did it in the same way and as liberally as those who gave a gourd of water: and it is an easy thing to recognise (says the Admiral) when a thing is given very willingly and eagerly.” These are his words. “These people have no pikes or spears or any other arms, neither have the other inhabitants of all this island, which I believe to be very large: they are naked as their mothers gave them birth, men as well as women; but in the other countries of Juana and those of the other islands the women wore in front, pieces of cotton something like men's breeches, with which they covered their genital parts, and especially after they had passed the age of twelve years, but here neither young nor old wore it. And in the other places all the men made the women hide from the Christians through jealousy, but here they do not, and there are some very pretty women, and they are the first who came to give thanks to Heaven and bring whatever they had, especially things to eat, bread made from 'ajes,' gonza avellanada and five or six kinds of fruits.” The Admiral ordered some of the fruit cured in order to take it to the Sovereigns. The women in the other places he says did the same before they were concealed, and the Admiral ordered everywhere that all his people should he on guard not to annoy any of them in any manner, and that no one should take anything from them against their will, and so the Christians paid them for everything they received from them. Finally (says the Admiral) it cannot be believed that men have seen a people with such good hearts and so liberal in giving and so fearful that they strip themselves of everything to give all they have to the Christians, and on the arrival of the Christians, they then run to bring everything to them. Then the Admiral sent six Christians to the village to see what it was, and the people showed them all the honour they knew how and were able to show, and gave
them whatever they had because they were no longer in any doubt but believed that the Admiral and all his people had come from Heaven: the Indians whom the Admiral had brought from the other islands also believed this, although what they ought to believe in respect to this matter had already been told them. After the six Christians had gone, certain canoes came bringing people to pray the Admiral on the part of a certain chief, to go to his village when he left this place. Canoa is a boat in which they navigate and some of them are large and some small. And having seen that the village of that chief was on the way, situated on a point of land, and that he was waiting for the Admiral with many people, he went there, but before he started, so many people, men and women and children, came to the shore that it was frightful and they were all crying loudly that he must not go away but must remain with them. The messengers of the other chief who had come to invite him were waiting with their canoes that he might not go away without going to see the Chief: and so he went to see him. When the Admiral arrived where that Chief was waiting for him with a great many things to eat, the Chief ordered all his people to be seated, telling them then to take whatever they had to eat to the boats where the Admiral was, near to the shores of the sea. And having seen that the Admiral had received what they had taken to him, all or the greater part of the Indians commenced running to the village, which must have been near, in order to bring him more eatables and parrots and other things which they had, with such generosity that it was wonderful. The Admiral gave them glass beads and brass rings and hawks' bells, not because they asked for anything but because it appeared to him that it was right, and above all (says the Admiral) because he already considers them as Christians and as belonging to the Sovereigns of Castile more than the people of Castile: and he says that nothing else is lacking save to know the language and to give them orders because all that they are ordered to do, they will do without any contradiction. The Admiral left that place for the ships, and the Indians, men, women, and children, cried out for the Christians not to go away but to remain with them. After the Christians left, canoes filled with the Indians followed them to the ships, and the Admiral treated them with great honour and gave them things to eat and other things they had with them. Another chief had also come previously from the west and many people even came swimming, though the ship was more than a long half league from the land. The Chief of whom I spoke, having returned, the Admiral sent certain persons to see him and question him about these islands: and he received them very well and took them with him to his village to give them certain large pieces of gold; and they arrived at a large river which the Indians swam across but the Christians were not able to do so and so they returned. In all this region there are very high mountains which appear to reach Heaven, so that the mountains of the island of Tenerife appear nothing in comparison with them in height and in beauty and they are all green and covered with forests which is a wonderful thing. In their midst are very delightful plains and at the
foot of this harbour to the south there is such a great plain without an obstructing mountain, that the eyes cannot see to the end of it, and it appears that it must he fifteen or twenty leagues long: and a river flows through it and it is all populated and cultivated and is as green now as if it were in Castile in the month of May or June, although the nights are fourteen hours in length and the land is so northerly. Therefore this harbour is very good whatever winds may blow, sheltered and deep, and all the country is inhabited by a very good and mild people, and they have no arms either good or had. And any ship whatever may be free from fear in this harbour that other ships might come by night to assault it, because, although the mouth is more than two leagues wide, it is very contracted by reason of two rocky reefs which are hardly seen above the water: and there is a very narrow entrance in this reef which appears as if it could only have been made by hand, which left an opening wide enough for ships to enter. In the mouth it is seven fathoms in depth to the foot of a small level island which has a beach and trees at the foot of it: the entrance is to the west, and a ship can approach near enough to touch the rock without fear. There are three islands to the north-west and a large river a league from the head of the harbour. It is the best harbour in the world and he named it the Puerto de la Mar de Santo Tomas because this day was the day of St. Thomas. He called it a sea on account of its size. SATURDAY, DECEMBER 22.
At dawn he set sail in order to go on his course in search of the islands which the Indians said contained a great deal of gold, and that some contained more gold than land. But the weather was not favourable and he had to anchor again and sent the boat to fish with nets. The Chief of that country who had a place near there sent him a large canoe full of people, and in it one of his principal servants, to entreat the Admiral to go with the ships to his country and he would give him whatever he had. He sent the Admiral by this servant a belt which in place of a purse had a mask attached with two large ears and a tongue and nose of beaten gold. And this people are so generous that whatever is asked of them they give with the best will in the world, and it appears to them that in asking them for something a great favour is shown them. The Admiral says this. The Indians in the canoe met the boat from the ship and gave the belt to a boy and came with their canoe on board the ship to perform their errand. Before they could understand each other some part of the day passed, neither could the Indians whom the Admiral had with him understand them well, because there is some difference in the names of things: finally he finished by understanding the invitation of these Indians, by means of signs. The Admiral determined to start for that place on Sunday although he was not in the habit of leaving port on Sunday, solely on account of his devotion and not from any superstition whatever. But because he hopes, he says, that the people of those villages will he Christianised on account of their good-will, and that this will be accomplished by the Sovereigns of Spain, and because he already considers them as belonging to the Sovereigns, and that they may
serve the Sovereigns lovingly he is agreeable to them and strives to please them. Before he started to-day he sent six men to a very large village three leagues from there to the west, because the Chief of that village came to the Admiral the day before and told him that he had certain pieces of gold. On the arrival of the Christians at that place the Chief took the Escribano of the Admiral who was with the Christians by the hand. The Admiral sent the Escribano to prevent the other Spaniards from doing anything unjust to the Indians because the Indians were so generous and the Spaniards so avaricious and unreasonable that they were not satisfied to have the Indians give them whatever they desired for the end of a leather strap and even for a piece of glass and earthen ware and for other things of no value; but even without giving them anything they desired to have everything and take everything, which the Admiral always prohibited, although the things they gave to the Christians with the exception of the gold were always of small value. But the Admiral, considering the generous hearts of the Indians, who would give, and in fact did give, a piece, of gold for six cheap little glass beads, on that account ordered that nothing should be received from them for which something was not given in payment. So that the Chief took the Escribano by the hand and conducted him to his house with all the people, a very great number, who accompanied him and made them give the Spaniards something to eat, and all the Indians brought them many things made of cotton and little balls of the same. Afterward in the afternoon the Chief gave them three very fat geese and some small pieces of gold. And a great number of Indians came with them carrying for them all the things for which they had traded and contending among themselves as to carrying them on their shoulders and they actually did carry them across some rivers and muddy places. The Admiral ordered that some things should be given to the Chief and he and all his people were greatly pleased, believing that the Christians had really come from heaven and they considered themselves fortunate in seeing them. More than one hundred and twenty canoes came to the ships on this day all loaded with people and all bringing something, especially their bread and fish, and water in small earthen jars and seeds of many good kinds of spices. They throw a grain of these seeds in a porringer of water and drink it and the Indians that the Admiral had with him say that it was a very healthful thing.
SUNDAY, DECEMBER 23.
He could not start for the country of that Chief who had sent to entreat and invite him to come, as there was no wind: but he sent some people and the Escribano in the boats with the three messengers who were waiting there. In the meantime while they were gone, he sent two of the Indians he had with him to the villages which were near the place where the ships were, and these Indians returned with a chief to the ships, with the news that in that land of Espanola there was a great quantity of gold and that people from other places came there to buy it, and they told him that he would find as much as he desired there. Others came who confirmed there being much gold on the
island and they showed him their manner of obtaining it. The Admiral understood all that with difficulty: but yet he felt certain that in those regions there was a very great quantity of gold and that in finding the place from which it is obtained he would get it very cheaply and as he imagined, even for nothing. And he repeats that he believes there must be a great deal of it, because in the three days which he remained in that harbour he had received good pieces of gold and he can not believe that it is brought there from another country. May our Lord, Who has all things in His hands assist me and give me whatever may be for His service. These are the words of the Admiral. He says that at that time he believes more than a thousand persons came to the vessel and they all brought something from what they possessed: and before they reached the ship, at a distance of half a cross-bow shot, they arose to their feet in their canoes and took what they were bringing in their hands, saying: “Take, Take.” Also he says he believes that more than five hundred came swimming to the ships on account of not having canoes, and he was anchored about a league from land. He judged that five princes, sons of chiefs, with all their household, women and children, had come to see the Christians. The Admiral ordered something given to every one, because he says, it was all well employed, and he says: May our Lord in His mercy direct me until I find this gold, I say this Mine, because I have many people here who say that they know it: these are his words. The boats arrived in the night and they said that they had come from a long distance, and that at the mountain of Caribatan they found many canoes with a great many people who were coming from the place whither the Christians were going, to see the Admiral and the Christians. And he considered it certain that if he could be in that harbour for the feast of the Nativity that all the people would come from that island, which he already estimated to be larger than England, to see the Christians. The canoes returned with the Christians to the village, which, he says, they affirm to be larger and with better arranged streets than any others passed and discovered up to that time. This village, he says, is almost three leagues to the south-east of the Punta Santa. And as the canoes go rapidly with oars they went ahead to make known to the Cacique that the Christians were coming. Up to that time the Admiral had not been able to understand whether by Cacique they meant King or Governor. They also have another word for a great personage, that is to say Nitayno, and he did not know whether it meant a Hidalgo, Governor or Judge. Finally the Cacique came to them, and all the people of the village consisting of more than two thousand men, united in the plaza, which was very clean. This King paid great honours to the people from the ships and each one of the people brought them something to eat and to drink. Then the King gave to each one of them some cotton cloths such as the women wear, and parrots for the Admiral, and certain pieces of gold: the people also gave the sailors some of the same cloths and other things from their houses for the little things which they gave them, which from the manner in which they received them, it appeared they esteemed as reliques. In the afternoon when
they wished to take leave the King begged them to wait until another day and all the people did the same; but having seen that they had determined to come away, many of the Indians came with them carrying on their shoulders the things which the Cacique and the others had given them as far as the boats, which remained at the entrance of the river.
MONDAY, DECEMBER 24.
Before sunrise he weighed the anchors, with a land breeze. Among the many Indians who had come to the ship yesterday and had given them indications of there being gold on that island and had named the places where it was found, he saw one, who, it appears was better disposed and more affectionate, or who spoke to him with more pleasure. The Admiral flattered him, begging him to go away with him to show him the mines of gold. This Indian brought with him another, a companion or relative and among the other places which they named where gold was found, they told of Cipango, which they call Civao, and there they say there is a great quantity of gold, and that the Cacique carries banners of hammered gold, but that is a great distance from the east. The Admiral here says these words to the Sovereigns: “Your Highnesses may believe that in all the world there cannot be better or more quiet people. Your Highnesses must be greatly pleased, because they will soon make them Christians and will teach them the good customs of their realms, because there cannot be a better people or country: and the people are so numerous and the country so great that I do not yet know how to write it, because I have spoken in the superlative degree of the people and the country of Juana, which they call Cuba; but there is as much difference between the people of this country and the people of Juana as there is between day and night. Neither do I believe that any other person who saw this, would have done or said less than I have said, and I say that it is true that the things here are marvelous and so also are the great villages of this island of Espanola, as I have named it and which they call Bohio. And all the people behave in a remarkably friendly manner and speak softly, not like the other Indians who appear to threaten when they speak, and the men and women are of good stature and are not black. It is true that they all paint themselves, some black and others in other colours, and mostly red. I have learned that they do it on account of the sun, which then does not injure them as much. And the houses and settlements are very beautiful and they are all governed by a Lord or Judge, and all obey him so that it is a marvel. And all these Lords speak very few words and have very fine manners, and their commands are given usually by a sign of the hand, and then it is understood in a wonderful manner.” All these are the words of the Admiral.
Whoever is obliged to enter the sea of Santo Tome must put in a good league above the mouth of the entrance toward a small flat island which the Admiral named La Amiga which is in the middle of it, turning the prow toward it. And after he arrives within the “oto” of a stone from it, must go to the west, and leave the island to the east and must keep near it and not go to the other side,
because there is a very large reef to the west, and also in the sea outside of it there are three shoals, and this reef reaches within a lombard shot of La Amiga: and he will pass in the middle and will find at the most shallow place seven fathoms of water with gravel underneath, and inside he will find a harbour for all the ships in the world where they can remain without cables. There is another reef and more shoals which extend from the east toward the said Island of Amiga and they are very large and extend far out into the sea and reach almost within two leagues of the cape; but it appeared that there was an entrance between them at a distance of two lombard shots from La Amiga, and at the foot of Monte Caribatan on its west side, there is a very good and large harbour.
TUESDAY, DECEMBER 25; THE DAY OF NATIVITY.
Sailing in a light wind yesterday from the sea of Santo Tome to the Punta Santa, from which be was a league's distance at the passing of the first quarter, which would be at eleven o'clock at night, he decided to lie down to sleep because he had not slept for two days and one night. As there was a calm, the sailor who was steering the ship decided to go away and sleep and left the steering to a young ship's boy, a thing which the Admiral had always expressly prohibited in all the voyage, whether there was a wind or a calm: that is to say that the ships should not be steered by young boys. The Admiral felt secure from banks and rocks because on Sunday when he had sent the boats to that King, they had passed a good three leagues and a half to the east of the said Punta Santa and the sailors had seen all the coast and the shoals which extend from the said Punta Santa a good three leagues to the east-south-east and they saw where they could pass, which he had not done before on all this voyage. Our Lord willed that at twelve o'clock at night, as the crew had seen the Admiral lie down and repose and they also saw that there was a dead calm and the sea was as in a porringer {bowl}, they all lay down to sleep and left the steering in the hands of that boy, and the currents which were flowing carried the ship upon one of the banks. Although it was night they made such a noise that they were seen and heard at a good league's distance, and the ship went upon the bank so quietly that it was hardly felt. The boy who felt the helm catch and heard the noise of the sea, cried out, upon which the Admiral came out and was so quick that no one had yet felt that they were aground. Then the master of the ship who was the guard, came out: and the Admiral told them to launch the small vessel which they were carrying at the stern, and to take an anchor and cast it at the stern: and the master with many others jumped into the small vessel and the Admiral thought that they would do what he had told them: but they thought only of flying to the caravel which was a half league to the windward. The people on the caravel would not receive them, which was right, and on this account they returned to the ship, hut first the boat from the caravel reached it. When the Admiral saw that they were fleeing and they were his people, and that the waters were falling and that the ship was athwart in the sea, not seeing any
other remedy, he ordered the mast cut and the ship lightened as much as they were able, to see if they could not float her; but as the waters were yet falling, and as the ship settled more and more to one side in the water, although there was very little or no sea, he could not save her. Then the seams opened but the ship remained whole. The Admiral went to the caravel to place the people from his ship in safety, and as there was a light breeze flowing from the land and also as the night was not yet much advanced, and he did not know how far the banks extended, he beat about, a la corda, until it was day and then went to the ship inside the bank. First he had sent the small vessel to land with Diego de Arana, of Cordova, Alguacil of the fleet, and Pedro Gutierrez, “repostero” of the Royal House, to inform the King who had sent on Saturday to invite and beg him to go with his ships to his harbour. The village of this King was about a league and a half beyond the said bank: and they say that the King wept when he heard of the disaster and sent all his people from the village with many large canoes to unload the ship: and so it was done and everything was unloaded from the decks of the ship in a very brief space of time, such was the great haste and diligence which that King displayed. And he in person with his brothers and relatives showed great assiduity both in the matter of unloading the ship and guarding what was thrown on land that everything might be in security.
From time to time he sent one of his relatives weeping to the Admiral to console him, saying that he must not feel troubled or annoyed, and that he would give him whatever he possessed. The Admiral certifies to the Sovereigns that in no part of Castile could things be placed in such safety without the loss of so much as a leather strap. The King ordered everything placed near the houses while some houses which he wished to give up were vacated, where everything could be stored and guarded. He ordered armed men placed around everything to watch all night. “He with all the people in the village wept a great deal (says the Admiral): they are an affectionate people and free from avarice and agreeable in everything and I certify to your Highnesses that in all the world I do not believe there is a better people or a better country: they love their neighbours as themselves and they have the softest and gentlest speech in the world and are always laughing. They go naked, men and women, as their mothers gave them birth. But your Highnesses may believe that they have very good customs among themselves and the King maintains a most wonderful state, and everything takes place in such an appropriate and well-ordered manner that it is a pleasure to see it all: and they have good memories, and wish to see everything and they ask what it is and for what purpose.” The Admiral says all this as above.
WEDNESDAY, DECEMBER 26.
To-day at sunrise the King of that country came to the caravel Niña, where the Admiral was, and almost crying told him not to feel bad because he would give him whatever he had, and that he had given two very large houses to the Christians who were on land and that he would give them more if it was
necessary and as many canoes as would be needed to load and unload the ship and place the cargo on land, with as many people as he desired: and that he had done so yesterday without even a particle of bread being taken or any other thing: “They are so faithful (says the Admiral) and so little covetous of the property of others and in this respect that King was more just than all the others.” While the Admiral was talking with him, another canoe came from another place bringing certain pieces of gold, which the Indians wished to give for a hawk's bell because they did not desire anything else as much as hawks' bells The canoe had not yet reached the side of the ship when they called and showed the pieces of gold, saying chuq chuq for hawks' bells, as they are in a likely state to become crazy for them. After having seen this the Indians on these canoes which were from the other places, in leaving, called to the Admiral and begged him to order a hawk's bell kept for them until the next day, for which they would bring four pieces of gold as large as the hand. The Admiral was pleased to hear this and then a sailor who came from land told the Admiral that the pieces of gold which the Christians who were on land were trading for nothing, were wonderful: for a leather strap they gave pieces which would he worth more than two castellanos, and that it was nothing then to what it would be at the end of a month. The King was delighted to see the Admiral pleased and he understood that he desired a great deal of gold and he told him by signs that he knew where there was a great amount of it near there, and that he must be of good cheer for he would give him as much gold as he wished. And the Admiral says that he gave him an account of it and in particular told him that they have it in Cipango which they call Civao, in such quantity that they do not value it at all and that they would bring it there, although also in the island of Espanola which they call Bohio and in that province of Caribata there is much more of it. The King ate on the caravel with the Admiral and afterward went with him on land where he paid the Admiral great honours, and gave him a repast of two or three kinds of “ajes” with shrimps, game and other viands which they had and their bread which they called cazavi. Then he took him to see some clumps of trees near the houses, and fully a thousand persons, all naked, went with him. The King was already wearing a shirt and a pair of gloves which the Admiral had given him, and he rejoiced more over the gloves than anything which had been given him. By his manner of eating, his honesty and his exquisite cleanliness, he showed himself to be of good birth. After having eaten, as they remained at the table some time, they brought certain herbs with which they rubbed their hands a great deal. The Admiral believed they did it to soften them, and they gave him water for his hands. After they had finished eating they took the Admiral to the beach, and he sent for a Turkish bow and a handful of arrows, and the Admiral made a man from among his company who was skilful in the exercise, shoot the arrows. And as the King did not know what arms are, as they do not possess them or use them, it appeared to him to be a great thing. Although he {the Admiral} says that the beginning was from a conversation
they had about the people of Caniba, whom they call Caribs {Caribes}, who come to take them and who carry bows and arrows without iron, as in all those countries they have no knowledge of iron and of steel nor of any other metal, except of gold and copper, although the Admiral had seen but little copper. The Admiral told him by signs that the Sovereigns of Castile would order the Caribs destroyed, and that they would order them all brought to him with the hands tied. The Admiral ordered a lombard and a musket to be fired and seeing the effect of their force and what they penetrated, the King marvelled greatly. And when his people heard the shots they all fell to the ground. They brought the Admiral a large mask, which had great pieces of gold in the ears and eyes and in other places, which the King himself gave him, and which with other jewels of gold he placed on the head and around the neck of the Admiral: and they also gave a great deal to the other Christians who were with the Admiral. The Admiral derived great pleasure and consolation from these things which he saw and it tempered the trouble and affliction he had experienced and was feeling in losing the ship and he recognised that our Lord had caused him to run aground at that place that he might make a settlement there. And (he says), so many things came to hand here, that the disaster was really nothing other than a great good fortune. Because it is certain (he says) that if I had not run aground here, I should have kept out to sea without anchoring at this place, because it is situated here inside a large bay and in the bay there are two or three banks of shoals. Neither would I have left people here on this voyage, and even if I had desired to leave them I could not have given them a good enough outfit, nor enough ammunition and provisions and accoutrements for a fortress. And it is quite true that many of the people who are here have begged me that I would give them permission to remain. Now I have ordered a tower and fortress constructed and all in a very good manner and a large cellar, not that I believe this necessary with these people, because I consider it certain that with these people I have with me, I could subjugate all this island, which I believe is larger than Portugal and has double the people: but they are naked and without arms and cowardly beyond cure. But it is not that this tower should be built and it must be as it must be, being so far from your Highnesses and that they may know the people of your Highnesses and what they can do that they may obey them with love and fear, and thus they have blocks with which to construct the fortress and provisions of bread and wine for more than a year, and seeds for sowing, and the ship's boat and a calker, and a carpenter, and a gunner and a cooper and among them many men who desire greatly for the services of your Highnesses and to cause me pleasure, to learn of the mine where the gold is found. So that everything has happened much to the purpose that this beginning may be made. And more than all this when the ship ran aground it went so softly that it was hardly felt and there was neither wave nor wind.” The Admiral says all this. And he further adds to show that it was a great good fortune and the determined will of God that the ship should run aground there
that people might be left there,–that had it not been for the treachery of the Master and of the people, who were all or most of them from his country, in not wishing to cast the anchor at the stern to draw the ship off as the Admiral ordered them to do, that the ship would have been saved; and thus the country would not have been known (he says) as it was known during those days they remained there and as it will be known by the people he intended leaving there, as he was sailing all the time with the intention of making discoveries and not remaining anywhere more than a day unless it was because there was no wind, because he says the ship was very heavy and not fitted for the purpose of discovery. And the taking of such a ship he says was due to the people of Palos, who did not fulfil what the King and Queen had promised him, that is that he should he given ships suitable for that journey, and they did not do it. The Admiral concludes by saying that of all there was in the ship not a leather strap was lost, nor a board nor a nail, because the ship remained as sound as when she started except that she was chopped and split some in order to take out the butts and all the merchandise: and they placed all these on land, well guarded, as has been told. And he says that he hopes in God when he returns from Castile, as he intends, he will find a tun of gold for which those people he is to leave will have traded, and that they will have found the Mine of gold and the spices, and all that in such a quantity that before three years the Sovereigns will undertake and prepare to go and conquer the Holy Sepulchre (casa santa). “because (he says) I thus protested to your Highnesses that all the profit of this, my undertaking, should be spent in the conquest of Jerusalem, and your Highnesses smiled and said that it was pleasing to them, and that even without this, they had the inclination to do it.” These are the words of the Admiral.
THURSDAY, DECEMBER 27.
At sunrise the King of that country came to the caravel and told the Admiral that he had sent for gold and that he wished to cover him all over with gold before he went away, and he begged him not to go away before. And the King ate with the Admiral, and a brother of his and another very near relative, which two told the Admiral that they wished to go to Castile with him. At this time news came that the caravel Pinta was in a river at the head of that island. Then the Cacique, who loved the Admiral so much it was wonderful, sent a canoe there in which the Admiral despatched a sailor. The Admiral was already preparing with as much haste as possible for the return to Castile.
FRIDAY, DECEMBER 28.
In order to hasten the finishing of the construction of the fortress and to establish order among the people who were to remain there, the Admiral went on land, and it seemed to him that the King had seen him when he was going in the boat. The King entered his house quickly, dissembling, and sent one of his brothers to receive the Admiral, who conducted him to one of the houses which had been given to the Christians, and which was the largest and best in that village. In this house they had prepared a raised platform of the inner bark
of the palm tree where they made the Admiral sit down. Then the brother sent one of his pages to say to the King that the Admiral was there, as though the King did not know that he had come, although the Admiral believed that he was dissembling to pay him much more honour. When the page told him, the Cacique (he says) came running to the Admiral and placed around his neck a large plate of gold which he was carrying in his hand. He remained there with the Admiral until afternoon consulting as to what he was to do.
SATURDAY, DECEMBER 29
At sunrise a nephew of the King, a very young boy, of good judgment and courage as the Admiral says came to the ship: and as the Admiral always endeavoured to learn where the gold was found, he questioned each one, as he already understood something by signs. And in that manner, that boy told him that at a distance of four days journeys to the east there was an island which was called Guarionex and others which they called Macorix and Mayonic and Fuima and Cibao and Coroay, in which there was an infinite quantity of gold. The Admiral wrote down these names and a brother of the King having learned that the nephew had told this quarrelled with him, according to what the Admiral understood. Also the Admiral had understood at other times that the King was trying to keep him in ignorance of the places where the gold was found and gathered, that he might not go to trade for it and buy it elsewhere. But there is so much of it and in so many places on this island of Espanola itself (says the Admiral) that it is wonderful. Night having already come, the King sent a large mask of gold and also sent to beg of the Admiral a hand- basin and a pitcher. The Admiral believed that he asked them of him so as to order others made, and therefore he sent them to him.
SUNDAY, DECEMBER 30.
The Admiral went on land to eat, and arrived at the time when five Kings had come who were subjects of this King who was called Guacanagari. They all wore their crowns and were in very good state, so that the Admiral says to the Sovereigns that their Highnesses would take pleasure in seeing their manners. On reaching land, the King came to receive the Admiral and took him by the arms and conducted him to the same house where he went yesterday, where he had a raised platform and chairs in which the Admiral sat down: and then he took off his crown from his own head and placed it upon the Admiral's head, and the Admiral took from around his neck a collar of good blood-stones and very beautiful beads of fine colours, which appeared very good in all parts and placed it upon the King: and he took off a cloak of fine scarlet cloth which he had put on that day, and clothed the King with it: and he sent for some coloured buskins which he made him put on, and placed upon his finger a large silver ring because the Admiral had been told that this king had seen a silver ring which belonged to a sailor and had made many endeavours to obtain it. The King was very joyful and contented and two of those Kings who were with him, came to where the Admiral was with Guarionex and brought the Admiral two large gold plaques, each bringing
one. At this time an Indian arrived saying that two days ago he had left the caravel Pinta to the east in a harbour. The Admiral returned to the caravel and Vicente Anos, the captain, said that he had seen rhubarb and that it was on the island of Amiga, which is at the entrance of the sea of Santo Tome, which is six leagues from there and that he had recognised the leaves and root. They say that rhubarb sends small branches out of the ground and bears fruits which appear like green mulberries almost dry and the stalk which grows from the root is as yellow and as fine as the best colour which can be found to paint, and under the ground the root grows like a large pear.
MONDAY, DECEMBER 31.
This day he occupied himself in ordering water and wood taken in readiness for the departure for Spain, in order to give speedy information to the Sovereigns, that they might send ships to discover what remained to be discovered: because the affair already appeared so great and of such importance that it is wonderful (said the Admiral) and he says that he would have liked not to depart until he had seen all that land which extends toward the east, and had gone all along the coast in order to learn also (he says) the distance from Castile to that country so as to bring there herds of cattle and other things. But as there remained to him only one ship, it did not appear a reasonable thing to expose himself to the dangers which might occur in making discoveries. And he complained that all that injury and inconvenience arose from the separation of the caravel Pinta.
TUESDAY, JANUARY 1, 1493.
At midnight he despatched the boat to the island of Amiga to bring the rhubarb. It returned at vespers with a hamper of it. They did not bring more because they did not carry a spade to dig it. The Admiral carried what they brought to the Sovereigns as a specimen. The King of that country, he says, had sent many canoes for gold. The sailor, who had been sent with a canoe to learn of the Pinta returned, and they did not find her. That sailor said that at a distance of twenty leagues from there he had seen a king who wore upon his head two large plaques of gold, and when the Indians in the canoe spoke to him he took them off, and he says he saw also other persons with a great deal of gold. The Admiral believed that the King Guacanagari must have prohibited every one from selling gold to the Christians, so that it might all pass through his hands. But he had learned the places, as he said the day before yesterday, where they had gold in such a quantity that no price was attached to it. He had also learned where there were spices {as the Admiral says} of which there is a great quantity and it is worth more than pepper and “manegueta.” He charged those persons who were to remain there to obtain as much as they could.
WEDNESDAY, JANUARY 2.
He went on land in the morning to take leave of the King Guacanagari and to
depart in the name of the Lord: and he gave the King one of his shirts and showed him the force of the lombards and their effect. For this purpose he
ordered one loaded and fired at the side of the ship which was aground. This happened as the result of a conversation in regard to the Caribs, with whom they were at war, and the King saw how far the lombard shot reached, and how it passed through the side of the ship and that the shot went a long way on the sea. He also had the people from the ships make a slight skirmish with their arms, telling the Cacique not to fear the cannibals if they should come. The Admiral says he did all this that the King might consider the Christians he was leaving as friends and also that he might fear them. The King conducted the Admiral and the other Christians who were with him to the house where he was lodged to eat with him. The Admiral many times charged Diego de Arana and Pedro Gutierrez and Rodrigo Escovedo, whom he was leaving as his joint lieutenants over the people who were to remain there to see that everything was well ruled and governed for the service of God and their Highnesses. The Cacique manifested much love for the Admiral and great feeling over his departure, especially when he saw them go to embark. A favourite of that King told the Admiral that he had ordered a statue of pure gold made as large as the Admiral himself and that at the end of ten days they were to bring it to him The Admiral embarked with the intention of departing then, but the wind would not allow him to do so.
He left on that island of Espanola, which the Indians say they called Bohio, thirty-nine men in the fortress, whom he says were very friendly with that King Guacanagari; and in command of these men as his lieutenants, Diego de Arana, native of Cordova and Pedro Gutierrez, “repostero de estrado” of the King, “criado del despensero mayor,” and Rodrigo de Escovedo, native of Segovia, nephew of friar Rodrigo Perez, giving them all the powers which he had received from the Sovereigns. He left them all the merchandise which the Sovereigns had ordered purchased for trading, of which there was a large quantity, so that they might trade and barter it for gold, together with everything which the foundered ship carried. He also left them biscuit sufficient for a year and wine and much artillery: and the ship's boat in order that they, as they were most of them sailors, could go to discover the mine of gold when they should see that the time was favourable: so that the Admiral on his return might find much gold and a place to found a village that harbour not being to his liking: especially as the gold which was brought there he says came from the east and the more they went to the east, so much nearer were they to Spain. He also left them seeds for sowing and his officials, escribano and alguacil, and among the others a ship's carpenter and calker, and a good gunner who knows a great deal about engines, and a cooper and a physician and a tailor, and all, he says, are seamen.
TUESDAY, JANUARY 3.
He did not leave to-day because at night he says that thee of the Indians he had taken from the islands and who had remained on land, came and told him that the other Indians and their wives were coming at sunrise. The sea was also somewhat changed and the boat could not go to land. He determined to
depart the next day, the grace of God permitting. He said that if he had had the caravel Pinta with him be would have been certain to obtain a cask of gold, because he would have dared to follow the coasts of these islands, which he did not dare to do because of being alone: as he did not wish anything inconvenient to happen to him and prevent his returning to Castile and informing the Sovereigns of all the things which he had found. And if he were certain that the caravel Pinta would reach Spain in safety with that Martin Alonso Pinzon, he said that he would not relinquish doing what he desired. But as he did not know about it, and as Pinzon in going would be able to tell falsehoods to the Sovereigns, to avoid the punishment which he merited for doing so much harm in going away without permission and preventing all the good which might have been done and learned at that time, the Admiral says he felt confident that our Lord would give him good weather and everything would be remedied.
FRIDAY, JANUARY 4.
At sunrise he weighed the anchors in a light wind and the boat went ahead on a course to the north-west to get outside of the bank, by another channel wider than that by which he entered. This channel and others are very suitable to go to the Villa de la Navidad and in all that channel the least depth was three fathoms up to nine fathoms, and these two channels extended from north-west to south-east along the banks which extend from Cabo Santo to Cabo de Sierpe, which is more than six leagues and out into the sea a good three leagues, and beyond Cabo Santo a good three: and a league beyond Cabo Santo the water is not more than eight fathoms in depth and inside the said cape to the east there are many shoals and channels to enter among them, and all that coast extends north-west and south-east and is all a beach, and the land is very level for a distance of four leagues island. Then there are very high mountains, and it is all well settled with large villages and good people, as had been shown to the Christians. He navigated thus to the east toward a very high mountain, which appears like an island but is not, because it connects with some very low land, which is shaped like a very beautiful “pavillion.” He named this mountain Monte-Cristi and it is exactly east of Cabo Santo at a distance of about eighteen leagues. That day as there was a very light wind he was only able to arrive within six leagues of Monte-Cristi. He found four very low small sandy islets with a reef which projected well out to the north-west and extended well to the south-east. Inside there is a large gulf which extends from the said mountain to the south-east a good twenty leagues, which must all be very shallow and have many banks: and inside the gulf along all that coast there are many rivers which are not navigable although that sailor whom the Admiral sent with the canoe to learn news of the Pinta, said that he saw a river in which ships could enter. The Admiral anchored there at a distance of six leagues from Monte-Cristi in nineteen fathoms of water, having occasionally put out to sea to avoid the many shoals and banks which were found there, and he remained there all night. The Admiral says that whoever is
obliged to go to the Villa de la Navidad must take his bearing from Monte- Cristi at a distance of two leagues on the sea, etc., but as the land is already known and that lying near there, he does not give all the details here. He concludes that Cipango was on that island and that there is a great deal of gold and a great quantity of spices and mastic and rhubarb.
SATURDAY, JANUARY 5.
As the sun was about to rise he made sail with a land breeze. Then it blew from the east and he saw that to the south-south-east of Monte-Cristi, between it and a small island, there appeared to be a good harbour to anchor this night and he took the course to the east-south-east and then to the south-south-east to within six leagues of the mountain: and having gone the six leagues he found the water seventeen fathoms in depth and very clear, and he went three leagues thus with the same depth. Then it was only twelve fathoms as far as the head of the mountain and beyond the head of the mountain at a distance of a league he found it nine, and clear, the bottom being all fine sand. He followed the route thus until he entered between the mountain and the small island where he found a depth of three and one-half fathoms at low tide, a very remarkable harbour where he anchored. He went with the boat to the small island where he found fire and signs that fishermen had been there. He saw there many stones tinted in colours, or a quarry of such stones, very beautiful and formed naturally he says, so that they would be suitable for church edifices and other royal works, being like those he found on the island of San Salvador. He also found on this small island many trunks of mastic trees. He says that this Monte-Cristi is very beautiful and high and accessible, and of very pretty shape: and all the country near it is low, forming a very pretty field, and it is so high that on seeing it from a distance it appears like an island which does not communicate with any land. Beyond the said mountain to the east at a distance of twenty-four miles he saw a cape which he called Cabo del Becerro: from this cape as far as the said mountain for a distance of two leagues a line of shoals appears in the sea, although it seemed to him that there were channels between them by which one could enter: but it is necessary to try it in the day-time and the boat must first make soundings. To the east from the said mountain toward the Cape of Becerro the four leagues are all a beach and the land is very low and beautiful, and the other is all a very high land with large mountains cultivated and beautiful: and a chain of mountains extends inland from the north-east to the south-east, the most beautiful that he had seen, as it appears exactly like the sierra of Cordova. Other very high mountains also appear very far toward the south and south- east and very large valleys very green and beautiful, and many rivers of water. All this is in such quantity and so pleasant that the Admiral said he did not believe he exaggerated it by the thousandth part. Then he saw to the east of the said mountain a country which appeared like another mountain, similar to Monte-Cristi in size and beauty. Then in the quarter of the east to the north- east the land is not as high, and must be about one hundred miles in extent.
SUNDAY, JANUARY 6.
That harbour is sheltered from all the winds except the north and north-west winds, and he says that they prevail very little in that country and refuge can be obtained from even these winds behind the small island: the water is from three to four fathoms in depth. After sunrise he made sail to go forward along the coast all of which extends to the east, but it is necessary to look out for many reefs of rock and sand which are on the said coast. It is true that inside them there are good harbours and good entrances through their channels. After mid-day the wind blew strongly from the east and he ordered a sailor to ascend to the top of the mast to look for shoals, and he saw the caravel Pinta coming from the east and she came up to the Admiral: and as there was no place to anchor on account of shallow water, the Admiral returned to Monte- Cristi, going back ten leagues which he had sailed, and the Pinta went with him. Martin Alonso Pinzon came to the caravel Niña upon which was the Admiral, to excuse himself, saying that he had separated from him against his will, and giving reasons for it: but the Admiral says that they were all false and that Martin Alonso Pinzon had acted with much pride and covetousness that night when he went away and left him: and that he did not know says the Admiral from whence had come the haughty actions and dishonesty he had shown toward himself on that voyage. But the Admiral wished to dissemble these actions in order not to give place to the bad deeds of Satan who wished to hinder that voyage, as he had done up to that time. An Indian from among those whom the Admiral had recommended to Martin Alonso Pinzon with others who were on his caravel, had told Pinzon that on an island which was called Baneque there was a great deal of gold, and as his ship was light and a good sailer, he wished to withdraw and go by himself, leaving the Admiral. But the Admiral wished to delay and coast along the island of Juana and the island of Espanola, since it was all on a course from the east. After Martin Alonso went to the island of Baneque he says that he found no gold, and he came to the coast of Espanola because of information from other Indians who told him that there was on that island of Espanola which the Indians called Bohio, a great quantity of gold and many mines: and through this cause he arrived near the Villa de la Navidad, within fifteen leagues, and it was then more than twenty days ago. From this it appeared that the news given by the Indians was true on account of which the King Guacanagari sent the canoe, when the Admiral despatched a sailor, and that the Niña must have been gone when the canoe arrived. And the Admiral says here that the caravel traded for a great deal of gold, and that for the end of a strap they were given good pieces of gold the size of two fingers, and at times as large as the hand, and Martin Alonso took the half and divided the other half among his people. The Admiral says further to the Sovereigns: “So that, Lords and Princes I know that our Lord miraculously ordered that the ship should remain there because it was the best place on all the island to make the settlement and is near to the mines of gold.” He also says that he learned that behind the island of Juana to
the south, there is another large island on which there is a larger quantity of gold than there is on this one, so that they find pieces of it larger than beans and on the island of Espanola pieces of gold were taken from the mines as large as kernels of wheat. That island, he says, was called Yamaye. He also says that he learned that yonder toward the east there was an island where there were only women, and he says that he learned this from many persons. And that the island of Espanola or the other island of Yamaye were near the mainland distant ten days' journeys in canoes which might be sixty or seventy leagues, and that the people were clothed there.
MONDAY, JANUARY 7.
This day he caused the caravel, which was leaking, to be pumped out and calked and the sailors went on land to bring wood, and he says that they found a great quantity of mastic and aloes.
TUESDAY, JANUARY 8.
On account of the strong east and south-east wind which blew he did not start this day, so he ordered the caravel supplied with water and wood and everything necessary for all the voyage; because, although he was desirous of coasting all along the coast of Espanola which he could have done going on his course, yet as those he had placed on the caravels for captains were brothers, that is to say Martin Alonso Pinzon and Vicente Anes, and those who followed them were haughty and covetous and did not regard the honour which the Admiral had shown them and had not obeyed and did not obey his commands, but rather had done and said many unmerited things in opposition to him, and as Martin Alonso had left him from November 21 to January 6 without cause or reason but from disobedience: and all this the Admiral had suffered in silence, in order to finish his voyage successfully: on account of all this, in order to get out of such bad company, with whom he says it was necessary to dissemble, although they were a disobedient people, and although he says he had with him many good men yet it was not the time to occupy himself with matters of punishment,–he decided to return with the greatest possible haste and not stop longer. He entered the boat and went to the river which is near there, a long league from Monte-Cristi toward the
south-south-west, where the sailors were going to take water for the ship, and he found that the sand at the mouth of the river which is very wide and deep, was, as he says, all full of gold in such quantity that it was wonderful, although it was in very small grains. The Admiral believed that in coming down that river it crumbled into small pieces on the way, although he says that in a short space he found many grains as large as lentils: but of the very smallest grains he says there was a great quantity. And as the sea was calm and the salt water entered with the fresh water, he ordered the boat to ascend the river a stone's throw. They filled the barrels from the boat and returning to the caravel they found caught in the hoops of the barrels little pieces of gold and the same in the hoops of the casks The Admiral named the river El Rio del Oro, which is very deep inside the entrance, although the entrance is shallow
and the mouth very wide, and it is seventeen leagues from the river to the village of Navidad. There are many other large rivers between; three in especial, which he believed must have much more gold in them than that one, because they are larger although this one is almost as large as the Guadalquivir by Cordova: and from these rivers to the mines of gold it is not twenty a leagues. The Admiral says further that he would not take the said sand which contained so much gold, since their Highnesses had it all in their possession and at the door of their village of La Navidad; but that he wished to come at full speed to bring them the news, and to rid himself of the bad company which he had, and that he had always said they were a disobedient people.
WEDNESDAY, JANUARY 9.
At midnight he raised the sails with the wind south-east and navigated to the east-north-east: he arrived at a point which he called Punta Roja which is exactly to the east of the Monte-Cristi a distance of sixty miles, and in the shelter of this point he anchored in the afternoon, three hours before nightfall. He did not dare to go out from there in the night as there were many reefs, until they were investigated because afterward they would be useful if they had, as they must have, channels, and the water inside is very deep and forms a secure anchorage from all winds. These lands from Monte-Cristi as far as the place where he was anchored are high and smooth lands and are very pretty fields and back of them there are very beautiful mountains which extend from east to west, and are all cultivated and green, so that it is a wonderful thing to see their beauty, and they have many rivers of water. In all this land there are many tortoises, of which the sailors took a great many which came on land to lay their eggs, on Monte-Cristi, and they were very large like a great wooden shield. The day before this when the Admiral was going to the Rio del Oro, he said he saw three sirens which came up very high out of the sea: but they were not as beautiful as they are painted, as in some ways they are formed like a man in the face. He said that at other times he saw some in Guinea on the coast of Manegueta. He says that this night in the name of our Lord he will start on his journey without delaying himself further for any matter, since he had found what he had sought, and as he did not wish to have more trouble with that Martin Alonso until their Highnesses learned the news of the voyage and what he has done. “And then he says I will not suffer the bad deeds of persons without virtue, who, with little respect, presume to carry out their own wills in opposition to those who did them honour.”
THURSDAY, JANUARY 10.
He started from the place where he had anchored and at sunset he reached a river which he named Rio de Gracia. it is distant three leagues to the south- east. He anchored at its mouth on the eastern side, which is a good place to anchor. On going inside, a bank is found which has but two fathoms of water and is very narrow. Within there is a good sheltered harbour but there are a great many ship-worms: and the caravel Pinta upon which was Martin Alonso,
suffered very severely from them there because he says Martin Alonso remained there trading for sixteen days, and they traded for a great quantity of gold, which was what Martin Alonso desired. Martin Alonso, after he learned from the Indians that the Admiral was on the coast of the island of Espanola itself and that he could not avoid him, came to find him. And he says that Martin Monso would have liked to have all the people on the ship swear that he had been there only six days. But he says that his wickedness was so public that he could not hide it. The Admiral says, that Martin Alonso had made rules that half of the gold which was traded for or obtained should be for himself. And when he had to leave that place he took four Indian men and two young girls by force, whom the Admiral ordered given clothing and that they should be returned to their country that they might go to their houses. Which says the Admiral is for the service of your Highnesses, because men and women all belong to your Highnesses on this island especially as well as on the other islands. But here where your Highnesses already have a settlement honour and favour must be shown to the people, since there is so much gold on this island and such good lands and so much spice.”
FRIDAY, JANUARY 11.
At midnight he went out from the Rio de Gracia with a land breeze, and navigated to the east as far as a cape which he called Belprado, a distance of four leagues: and from there to the south-east is the mountain which he called Monte de Plata, and he says it is a distance of eight leagues. Eighteen leagues from the cape of Belprado to the east, quarter south-east is the cape which is called Angel; and extending from this cape to the Monte de Plata there is a gulf and the best and most beautiful countries in the world, all high and beautiful fields, which extend a long distance inland, and beyond, there is a chain of mountains which extend from east to west, very high and beautiful; and at the foot of the mountain there is a very good harbour, and it is fourteen fathoms deep at the entrance and this mountain is very high and beautiful, and it is all well populated, and the Admiral believed it must have contained good rivers and much gold. Four leagues from the cape Angel to the east, quarter south-east there is a point which he named Hierro; and four leagues farther in the same direction there is a point which he named Punta Seca; and from there six leagues in the same direction is the Cape which he called Redondo; and from there to the east is the Cabo Frances and in this cape on the east there is a large bay but it did not appear to him to have anchorage. A league from there is the Cabo del Buen Tiempo: a long league from here to the south quarter south-east there is a cape which he called Tajado; toward the south from this cape he saw another cape and it appeared to him to be a distance of fifteen leagues. He made great head way to-day because the winds and the currents were favourable to him. He did not dare to anchor for fear of the shoals, and therefore he lay off and on all night.
SATURDAY, JANUARY 12.
At the quarter of the dawn he navigated to the east with a fresh wind, and went
in that way all day and made twenty miles, and in two hours after that he went about twenty-four miles. From there he saw land to the south, and he went toward it and it was at a distance of about forty-eight miles and he says that after having made the ship secure he went this night twenty-eight miles to the north-north-east. When he saw the land he named a cape which he saw the Cabo de Padre e Hijo, because at the eastern point it has two small rocky points, one larger than the other. Then two leagues to the east he saw a large and very beautiful inlet between two large mountains, and he saw that it was a very large harbour, good and with a very fair entrance; but as it was very early in the morning and in order not to lose time because for the greater part of the time the wind there blows from the east and one is then carried north-north- west, he would not delay longer. He continued his course to the east as far as a very high and beautiful cape all of jagged rock, which he named Cabo del Enamorado {Lover's Cape}; this cape was thirty-two miles to the east of that harbour, which he named Puerto Sacro; and on reaching this cape he discovered another much more beautiful and higher and more rounding, all of rock like the Cabo de San Vicente in Portugal, and it was twelve miles to the east of the Enamorado. After he arrived off Enamorado he saw that there was a very large bay between it and the other cape which was three leagues wide, and in the middle of it an exceedingly small island. It is quite deep from the entrance as far as the land. He anchored there in twelve fathoms of water and sent the boat on land for water and to see if they could have speech with the people, but they all fled. He anchored to see also if all that land was one with Espanola; and what he called a gulf he suspected might be another island by itself. He was astonished to find that the island of Espanola was so large. SUNDAY, JANUARY 13.
He did not go out of this harbour on account of there not being a breeze from land so he could get out. He would have liked to have gone out in order to go to another better harbour, because that harbour was somewhat exposed, and because he wished to observe the conjunction of the moon with the sun which he expected to take place the 17th of this month, and the opposition of the moon with Jupiter and conjunction with Mercury, and the sun in opposition with Jupiter, which is the cause of great winds. He sent the boat to land on a beautiful beach that the sailors might get “ajes” to eat and they found certain men with bows and arrows with whom they stopped to talk and they bought two bows and many arrows from them, and begged one of them to go and speak with the Admiral on the caravel: and he came and the Admiral says that he was very much more ugly in the face than the other Indians they had seen: his face was all smutted with charcoal although everywhere the Indians were accustomed to stain themselves different colours. He wore his hair very long and drawn back and tied behind and afterward placed in a “rebecilla” of parrots' feathers, and he was naked like the others. The Admiral judged that he must have been one of the Caribs who eat men and that the gulf which he had seen yesterday divided the land and that this was an island by itself.
The Admiral asked him about the Caribs and he made signs to the east, near there, which the Admiral says he saw yesterday before he entered that hay: and the Indian told him that there was a great deal of gold in that country, pointing out the poop of the caravel which was very large and indicating that there were pieces as large as that. He called gold tuab and did not understand it by caona as it was called in the first part of the island nor by nozay as it is called in San Salvador and in the other islands. On Espanola they call copper or a base quality of gold tuob. That Indian told of the island of Matinino and said that it was all settled by women without men and on it there was a great deal of tuob which is gold or copper, and that it is farther to the east of Carib. He also told of the island of Goanin, where there is a great deal of tuob. The Admiral says that he had been told of these islands by many persons some days before. The Admiral says further that in the islands they had passed the inhabitants were in great fear of the Carib and in some they called it Caniba, but in Espanola they called it Carib. And that they must he a very bold people since they go to all the islands and eat the people they are able to capture. He says that he understood some words and by this he says that he learned other things, and that the Indians he had with him understood more, although he found the languages different on account of the great distances of the lands from each other. He ordered that the Indian should be given something to eat and he gave him pieces of green and red cloth and very small glass beads which they like very much, and he sent him to land again and told him to bring gold if he had it which he suspected on account of some little things which he wore. As the boat reached land there were behind the trees fully fifty- five men naked and wearing their hair very long as the women wear it in Castile. On the back part of their heads they wore head-dresses of the plumes of parrots and other birds, and each one carried his bow. The Indian in the boat went on land and made the others lay aside their bows and arrows and a piece of stick which is like a lacuna very heavy, which they carry in place of a sword These Indians then came to the boat and the people from the boat landed and began to buy the bows and arrows and the other arms, because the Admiral had ordered them to do so. Having sold two bows they did not wish to give any more, but rather they prepared to attack the Christians and capture them. They went running to get their bows and arrows where they had laid them aside, and returned with cords in their hands, he says, to bind the Christians. On seeing them come running toward them the Christians, who were ready as the Admiral always advised them to be on guard, attacked the Indians and gave one of them a great cut in the buttock and wounded another on the breast with an arrow. When they saw that they were able to gain little although the Christians were only seven and they were fifty and over, they took to flight until not one remained, one leaving his arrows here and another his bow there. The Admiral says that the Christians would have killed many of them if the pilot who went as captain of them had not prevented it. The Christians then returned to the caravel with their boat and the Admiral having
learned of the affair, said that in one way it troubled him and in another it did not, that they might be afraid of the Christians; because without doubt {he says} the people in that place do evil, and he believed they were from the island of Carib and that they eat men: and if the boat which he left with thirty- nine men in the fortress and Villa de la Navidad comes to that place, they may be afraid to do them any harm. And if they did not belong to the Caribs at least they must be inhabitants of lands fronting them and they have the same customs and must be a people free from fear, not like the others on the other islands who are cowards and without arms, except reason {fuera de razon}. The Admiral says all this and that he wished to take some of them. He says that they made many fires according to the custom on that island of Espanola. MONDAY, JANUARY 14.
He would have liked to send this night to search for the houses of those Indians to take some of them, believing that they were Caribs, and was prevented by the strong east and north-east wind which blew and by the high sea: but when day came, they saw many Indians on land. The Admiral ordered the boat to go to land with people well prepared, and the Indians then all came to the stern of the boat and especially the Indian who the day before had come to the caravel, and to whom the Admiral had given the articles of barter. With this Indian, he says there came a King who had given the said Indian some beads {cuentas} to give to the people in the boat in sign of security and peace. This King with three of his people entered the boat and came to the caravel. The Admiral ordered that honey and biscuit should be given them to eat and he gave the King a red cap and beads and a piece of red cloth and to the others also pieces of cloth, and the King said that to morrow he would bring a gold mask saying that there was a great deal of gold there in Carib and Matinino. Then the Admiral sent them to land well pleased. The Admiral says further, that the caravels were leaking badly at the keel and he complains a great deal of the calkers who calked them very badly in Palos and says that when they saw that the Admiral had noticed their poor work, and desired to constrain them to mend it, they fled. But notwithstanding the great quantity of water which the caravels were taking, he confides in our Lord who brought him there to lead him back in his pity and mercy, for his High Majesty well knew how much controversy he had before he was able to start from Castile as no other was favourable to him except God because He knew his heart, and after God their Highnesses favoured him, and all the others had opposed him without any reason whatever. And he says further as follows: “And they have been the cause that the Royal Crown of your Highnesses does not possess one hundred millions more revenue than it has. since I came to serve them, which is now seven years ago, the 20th day of January this very month and furthermore the accumulation which would have been the natural increase. But that powerful God will remedy everything.” These are his words. TUESDAY, JANUARY 15.
He says that he wishes to depart because nothing is gained by remaining here
now on account of the disagreements which have taken place. He must mean the trouble with the Indians. He says also that to-day he has learned that all the bulk of the gold was in the vicinity of the Villa de la Navidad of their Highnesses, and that on the island of Carib there was a great deal of copper and in Matinino, although it would be difficult to obtain it in Carib because he says the people eat human flesh: and he says the island of the Caribs appeared from where he was and that he had determined to go there, since it is on his course and to the island of Matinino which he says was all inhabited by women without men, and he says he wished to see both these islands and to take some of the inhabitants. The Admiral sent the boat to land and the king of that country had not come because he says the village was a long way off, but he sent his crown of gold as he had promised and many other men came with cotton and with bread and “ajes,” all with their bows and arrows. After they had traded everything with the Indians he says there came four youths to the caravel and they appeared to the Admiral to give such good account of all those islands which lay toward the east on the same course that the Admiral had to follow, that he determined to take them to Castile with him: He says they had no iron or other metal there which could be seen, although in a few days much cannot be learned in regard to a country both on account of the difficulty of the language which he understood only by intuition and as the Indians did not learn what was asked of them in a short time. The bows of these people he says were as large as those of France and England: the arrows are just the same as the spears of the other peoples he had seen up to that time, which are made from the stalks of the canes when they go to seed, which are very straight and a yard and a half or two yards long, and then they put in the end a piece of sharp stick, a palm and a half long, and at the end of this little stick some insert a fish's tooth and most of them place there an herb, and they do not shoot as in other places, but in a certain manner which cannot do much harm. There was a great deal of cotton there, very fine and long and there is a great deal of mastic and it appeared to him that the bows were of yew-trees and that there is gold and copper: also there is a great deal of “aji,” which is their pepper, which is worth more than our pepper, and none of the people eat without it as it is found to be very salutary. Fifty caravels can be loaded with it each year on that island of Espanola. He says that he found a great deal of grass in that bay the same as they found in the gulf when they came to make the discovery, on which account be believed there were islands to the east in a straight line from where he began to find them; because he is certain that that grass grows in shallow water near the land and he says that if it is so, these Indies were very near the islands of Canary: and for this reason he believed that they were distant less than four hundred leagues. WEDNESDAY, JANUARY 16.
Three hours before day he started from the gulf which he called the Golfo de
las Flechas, with a land breeze, then with a west wind, turning his prow to the east quarter north-east, to go, he says, to the Isla de Carib where were the
people whom all the inhabitants of all those islands and countries feared so greatly; because, he says, they cross all those seas in their canoes without number and he says they eat the men they are able to capture. He says one of the four Indians he had taken yesterday in the Puerto de las Flechas had showed him the course. After having gone, in his opinion, sixty-four miles, the Indians indicated to him that the island lay to the south-east. He wished to follow that course and ordered the sails trimmed, and after they had gone two leagues the wind again blew, very favourably to go to Spain. He noted that the people began to grow sad on account of departing from the straight course, as both caravels were taking a great deal of water and they had no help save in God. He was obliged to leave the course which he believed was taking him to the island and he returned to the direct course for Spain–north-east quarter east, and he went thus until sunset forty-four miles, which are twelve leagues. The Indians told him that on that course he would find the island of Matinino, which he says was inhabited by women without men, and the Admiral says he would much like to carry five or six of them to the Sovereigns. But he doubted whether the Indians knew the course well or not, and he was not able to delay on account of the danger from the water which the caravels were taking. But he says he was certain there was such an island, and that at a certain time of year the men came to these women from the said Isla de Carib, which he says was ten or twelve leagues from them, and if they gave birth to a boy they sent him to the island of the men and if to a girl they kept her with them, The Admiral says that those two islands could not have been distant from where he had started, fifteen or twenty leagues, and he believed they were to the south- east, and that the Indians did not know how to point out the course. After losing from sight the cape which he called San Theramo, on the island of Espanola, which lay sixteen leagues to the west, he went twelve leagues to the east, quarter north-east. Very good weather prevailed.
THURSDAY, JANUARY 17.
Yesterday at sunset the wind calmed some. He went during fourteen ampolletas {sand glasses}, which are each a half hour or a little less, until the passing of the first quarter, at the rate of about four miles an hour, which are twenty-eight miles. Then the wind revived, and he went thus during all that quarter which are ten “ampolletas” and then another six until sunrise, at the rate of eight miles per hour, and so he went in all about eighty-four miles which are twenty-one leagues to the north-east quarter east, and until sunset he went more than forty-four miles to the east, which are eleven leagues. Here a pelican came to the caravel and then another, and he saw a great deal of grass of the kind which is in the sea.
FRIDAY, JANUARY 18.
He navigated with little wind this night to the east quarter south-east forty miles, which are ten leagues: and then to the south-east quarter east thirty miles, which are seven and one-half leagues, until sunrise. After sunrise he navigated all day with little wind east-north-east and north-east and east more
and less, turning the prow sometimes to the north and sometimes to the quarter of the north-east and to the north-north-east, and thus counting both he believed he went about sixty miles, which are fifteen leagues. Little grass appeared in the sea: but he says that yesterday and to-day the sea appeared coagulated with tunny-fish and the Admiral believed that from there they must go to the tunny-fisheries of the Duke of Conil and Caliz. A fishing-bird which is called the frigate-pelican which went around the caravel and then went away to the south-south-east, caused the Admiral to believe that there were some islands near there. And he said that the island of Carib and the island of Matinino and many other islands, lay to the east-south-east of the island of Espanola.
SATURDAY, JANUARY 19.
He went this night fifty-six miles to the north, quarter north-east, and sixty- four to the north-east, quarter north. After sunrise he navigated to the north- east with a strong wind east-south-east and then to the quarter of the North, and he went about eighty-four miles which are twenty-one leagues. He saw the sea coagulated with small tunny-fish. There were pelicans, ring-tails, and frigate-pelicans.
SUNDAY, JANUARY 20.
The wind calmed this night and at intervals gusts of wind blew, and he went in all about twenty miles to the north-east. After sunset he went about eleven miles to the south-east, then to the north-north-east thirty-six miles which are nine leagues. He saw an infinite number of small tunny-fish. The breezes he says were very soft and sweet the same as in Seville in April or May, and the sea, he says, God be given many thanks, was very calm all the time. Frigate- pelicans and “petrels” and many other birds appeared.
MONDAY, JANUARY 21.
Yesterday after sunset he navigated to the north quarter north-east, with the wind east and north-east. He went about eight miles an hour until midnight which would be fifty-six miles. Then he went to the north-north-east at the rate of eight miles an hour, and this would be in all the night one hundred and four miles, which are twenty-six leagues, to the quarter of the north inclining to the north-east. After sunrise he navigated to the north-north-east with the same east wind, and at times to the quarter of the north-east and he went about eighty-eight miles in eleven hours which was the duration of the day, which make twenty-one leagues, deducting one which he lost because he fell off to the leeward toward the caravel Pinta, to speak her. He found the winds cooler, and he expected, he says, to find them more so each day the more he went to the north, and also because the nights were longer on account of the narrowing of the sphere. Many ring-tails and “petrels” appeared, and other birds; but not as many fish, {he says} because the water was colder. He saw a great deal of grass.
TUESDAY, JANUARY 22.
Yesterday after sunset he navigated to the north-north-east with the wind east
and veering to the south-east. He went eight miles an hour during five “ampolletas” and during three before the watch commenced, which were eight ampolletas: and thus he must have gone seventy-two miles, which are eighteen leagues. Then he went to the quarter of the north-east to the north six ampolletas which would be another eighteen miles. Then he went during four ampolletas of the second watch to the north-east, six miles an hour, which are three leagues to the north-east. Then until sunrise he went to the east-north-east during eleven ampolletas, six leagues an hour, which are seven leagues. Then to the east-north-east until eleven o'clock in the day, thirty-two miles. And then the wind calmed and be went no farther that day. The Indians swam. They saw ring-tails and a great deal of grass. WEDNESDAY, JANUARY 23.
This night he experienced many changes in the winds, and having been on the alert for everything and having taken the precautions which good sailors are accustomed to take and must take, he says he went this night to the north- east quarter north about eighty-four miles, which are twenty-one leagues. He waited many times for the caravel Pinta which was sailing badly close to the wind because the mizzen helped her little, the mast not being good: and he says that if her captain, who is Martin Alonso Pinzon, had taken as much pains to provide himself with a good mast in the Indies, where there are so many and such good ones, as he did to separate himself from him thinking to fill the ship with gold, he would have made it good. Many ring-tails appeared and much grass: the sky was all disturbed these days: but it had not rained and the sea was very calm all the time as in a river, many thanks be given to God. After sunrise he went about thirty miles for a certain part of the day straight to the north-east, which are seven leagues and a half, and then the rest of the day he went to the east-north-east another thirty miles, which are seven and a half leagues.
THURSDAY, JANUARY 24.
He went during all this night, many changes which the wind made to the north-east considered, about forty-four miles, which were eleven leagues. From sunrise until sunset, he went to the east-north-east about fourteen leagues.
FRIDAY, JANUARY 25.
He navigated this night to the east-north-east, a part of the night which were thirteen ampolletas, nine leagues and a half: then he went to the north-north- east another six miles. The sun having risen, during all the day, as the wind calmed, he went to the east-north-east about twenty-eight miles, which are seven leagues. The sailors killed a tunny-fish tonina and a very large shark and he says that they were very necessary to him because he did not then have anything to eat except bread and wine and “ajes” from the Indies. SATURDAY, JANUARY 26.
This night he went to the east, quarter south-east, fifty-six miles, which are fourteen leagues. After sunset he navigated at times to the east-south-east and
at times to the south-east; he went about forty miles up to eleven o'clock in the daytime. Then he made another tack and then went “a la relinga,” and until night he went toward the north twenty-four miles, which are six leagues.
SUNDAY, JANUARY 27.
Yesterday after sunset he went to the north-east and to the north and to the north quarter north-east, anti he went about five miles an hour and in thirteen hours that would be sixty-five miles, which are sixteen and one half leagues. From sunset until mid-day he went toward the north-east twenty-four miles, which are six leagues. and from that time until sunset he went about three leagues to the east-north-east.
MONDAY, JANUARY 28.
All this night he navigated to the east-north-east, and went about thirty-six miles, which are nine leagues. From sunrise until sunset he went to the east- north-east twenty miles, which are five leagues. He found the winds temperate and soft. He saw ring-tails and “petrels” and much grass.
TUESDAY, JANUARY 29.
He navigated to the east-north-east and went during the night with the wind south and south-west about thirty-nine miles, which are nine and one half leagues. In all the day he went about eight leagues. The winds were very temperate as they are in Castile in the month of April: the sea was very calm. Fish which they call dorados came to the side of the ship.
WEDNESDAY, JANUARY 30.
During all this night he went seven leagues to the east-north-east. During the day he ran to the south quarter south-east, a distance of thirteen and a half leagues. He saw ring-tails and much grass and many tunny-fish {toninas}. THURSDAY, JANUARY 31.
He navigated this night to the north, quarter north-east a distance of thirty miles and then to the north-east thirty-five miles, which are sixteen {sic} leagues. From sunrise until night he went to the east-north-east thirteen and a half leagues. They saw ring-tails and petrels.
FRIDAY, FEBRUARY 1.
He went this night to the east-north-east a distance of sixteen leagues and a half. During the day he ran on the same course a distance of twenty nine leagues and a quarter. The sea was very calm, thanks be to God. SATURDAY, FEBRUARY 2.
He went this night to the east-north-east forty miles, which are ten leagues. To-day with the same wind in the stern he ran seven miles an hour: so that in eleven hours he went seventy-seven miles which are nineteen leagues and a quarter. The sea was very calm, thanks to God, and the winds very soft. They saw the sea so thickly covered with grasses that if they had not seen it, they would have feared it was shoals. They saw petrels.
SUNDAY, FEBRUARY 3.
This night going with the wind astern and the sea very calm, thanks be to
God, they went about twenty-nine leagues. The North Star appeared to him very high, the same as on the Cape San Vicente: he could not take the latitude with the astrolabe or quadrant, because the waves would not permit it. During the day he navigated on his course to the east-north-east, and went about ten miles an hour, and thus in eleven hours he went twenty-seven leagues. MONDAY, FEBRUARY 4.
This night he navigated to the east quarter north-east, part of the time twelve miles an hour and part ten miles, and thus he went one hundred and thirty miles which are thirty-two leagues and a halt. The sky was very tempestuous and rainy, and it was somewhat cold, on which account {he says} he knew that he had not reached the islands of the Azores. After the sun rose, he changed his course and went to the east. He went during all the day seventy-seven miles, which are nineteen leagues and a quarter.
TUESDAY, FEBRUARY 5.
This night he navigated to the east and he went in all fifty-four miles. which are fourteen leagues less a half. During the day he ran ten miles an hour, and so in eleven hours he went one hundred and ten miles, which are twenty-seven leagues and a half. They saw petrels and some little sticks which was a sign that they were near land.
WEDNESDAY, FEBRUARY 6.
He navigated this night to the east, and went about eleven miles an hour: in thirteen hours of the night he went about one hundred and forty-three miles, which are thirty-five leagues and a quarter. They saw many birds and petrels. During the day he ran fourteen miles an hour, and so be went during that day one hundred and fifty-four miles, which are thirty-eight leagues and a half: so that they went between day and night seventy-four leagues, a little more or less. Vicente Anes said that to-day in the morning the island of Flores lay to the north, and the island of Madeira to the east. Roldan said that the island of Fayal or of San Gregorio lay to the north-north-east, and Puerto Santo to the east. Much grass appeared.
THURSDAY, FEBRUARY 7.
He navigated this night to the east: he went about ten miles an hour, and so in thirteen hours he went one hundred and thirty miles, which are thirty-two leagues and a half: during the day he went eight miles an hour, in eleven hours eighty-eight miles, which are twenty-two leagues. On this morning the Admiral was seventy-five leagues to the south of the island of Flores: and the pilot Pedro Alonso going to the north, passed between Tercera and Santa Maria: and in going to the east. he passed to the windward of the island of Madeira, at a distance of twelve leagues on the north. The sailors saw grass of a different kind than that they had passed, of which there is a great deal in the Azores Islands. Then they saw the same kind they had seen before.
FRIDAY, FEBRUARY 8.
He went this night three miles an hour to the east, for a short time, and then went to the quarter of the south-east: he went during all the night twelve
leagues. From sunrise until mid-day he ran twenty-seven miles: then until sunset as many more, which are thirteen leagues to the south-south-east. SATURDAY, FEBRUARY 9.
For a short time during this night he went about three leagues to the south- south-east, and then to the south, quarter south-east: then to the north-east until ten o'clock in the day a distance of another five leagues, and then until night he went nine leagues to the cast.
SUNDAY, FEBRUARY 10.
After sunset he navigated to the east during all the night a distance of one hundred and thirty miles, which are thirty-two leagues and a half; from sunset until night he went nine miles an hour, and thus he went in eleven hours ninety-nine miles, which are twenty-four leagues and a half and a quarter. On the caravel of the Admiral, Vicente Yanes and the two pilots Sancho Ruiz and Pedro Alonso Nino and Roldan shaped the course and they all passed much beyond the islands of the Azores to the east, according to their charts, and navigating to the north no one of them located the island of Santa Maria, which is the last of all the Azores islands: rather they would be five leagues beyond it and in the vicinity of the island of Madeira or in that of Puerto Santo. But the Admiral reckoned himself much out of his course, finding his position a long way behind that reckoned by the others, because this night the island of Flores lay to the north of him and he was going to the east toward Nafe in Africa, and he passed to the windward of the island of Madeira on the northern side {lacuna} leagues. Thus these pilots according to their reckoning were one hundred and fifty leagues nearer to Castile than the Admiral. He says that the grace of God permitting, as soon as land is seen it will be known who is calculating the surest. He says here also that on the voyage west be went two hundred and sixty-three leagues from the island of Hierro before he saw the first grass.
MONDAY, FEBRUARY 11.
He went on his course this night twelve miles an hour, and so in all the night he counted thirty-nine leagues, and during all the day he ran sixteen leagues and a half. He saw many birds and on this account he believed he was near land.
TUESDAY, FEBRUARY 12.
He navigated to the east six miles an hour during this night, and went until day a distance of seventy-three miles, which are eighteen leagues and a quarter. Here he began to encounter a high sea and tempest: and if the caravel had not been very good and well equipped, he says he would have feared to be lost. During the day he ran about eleven or twelve leagues with much difficulty and danger.
WEDNESDAY, FEBRUARY 13.
From sunset until day he experienced great difficulty from the wind and from
the high and stormy sea: it lightened toward the north-north-east three times, which he said was a sign that a great tempest was to come from that direction
or from the direction contrary to his course. He went under bare masts most of the night: then he raised a little sail and went about fifty-two miles, which are thirteen leagues. This day the wind abated a little; but then it increased, and the sea became terrible and the waves crossed each other which racked the ships. He went about fifty-five miles, which are thirteen and a half leagues. THURSDAY, FEBRUARY 14.
This night the wind increased and the waves were frightful, coming in contrary directions. They crossed and obstructed the ship which could not go forward or get out from between them and they broke on her: he carried the “papahigo” very low simply that it might keep him above the waves: he went in this way during three hours, and made about twenty miles. The wind and the sea increased greatly and seeing the great danger he began to run before the wind, where the wind took him, because there was no other remedy. Then the caravel Pinta, on which was Martin Alonso, commenced to run also, and disappeared, although all the night the Admiral showed lights and the other ship responded; until it appeared that the latter was not able to do so any longer on account of the force of the tempest, and because she found herself very much out of the course of the Admiral. The Admiral went this night to the north-east, quarter east, a distance of fifty-four miles, which are thirteen leagues. After sunrise the wind became stronger and the cross sea more terrible: he carried only the “papahigo” low, that the ship might get out of the waves which broke across her and not sink. He went on a course to the east- north-east and then on the quarter as far as the north-east: he went about six hours thus and during that time made seven and a half leagues. He ordered that a pilgrimage should be vowed to go to Santa Maria de Guadaloupe and a wax candle weighing five pounds should be carried and that every one should vow that whoever was elected by chance should fulfil the pilgrimage. For this purpose he ordered as many peas brought as there were persons on the ship and one was marked by a knife with the sign of the cross, and they were well shaken and placed in a cap. The first to put in his hand was the Admiral and he took out the pea marked with the sign of the cross, and thus he was selected by chance, and from that time he considered himself obliged to fulfil the vow and make the pilgrimage. Lots were again drawn to make a pilgrimage to Santa Maria de Loreto, which is in the province of Ancona, the land of the Pope, which is the house where Our Lady has performed and performs many great miracles, and chance selected a sailor from the port of Santa Maria, who was called Pedro de Villa, and the Admiral promised to give him money for the expenses of the pilgrimage. He decided that another pilgrim should be sent to watch one night in Santa Clara de Moguer and say a mass, and for this purpose lots were again drawn with the peas marked with a cross, and the choice fell to the Admiral himself. Then the Admiral and all the people made a vow that the first land they reached they would all go in their shirts in procession to pray in a church under the invocation of Our Lady. Besides the general or common vows each one had made his vow in especial,
because none of them expected to escape, all considering themselves lost through the terrible tempest they were experiencing. The danger was increased by the fact that the ship was short of ballast as the load had been lightened by the consumption of the provisions, water and wine: the Admiral had not provided these in sufficient quantity, as he hoped for the favourable weather be experienced among the islands, and proposed to order the ship ballasted on the islands of the Mugeres where he intended to go. The remedy he found for this necessity was when he was able to do it, to fill the pipes which were empty of water and wine with sea-water, and by this means the evil was remedied.
The Admiral here writes the causes which made him fear that our Lord willed that he should perish in that place, and the other causes which gave him hope that God would lead him in safety, in order that such news as he was carrying to the Sovereigns might not perish. It appeared to him that the great desire he had to carry this wonderful news and to show that he had been proved truthful in what he had said and volunteered to discover, caused him to feel the greatest fear that he would not succeed in doing so, and he says that it seemed to him that each gnat could disturb and impede it. He attributed this to his little faith and lack of confidence in the Divine Providence. He was comforted on the other hand by the favours which God had shown him by giving him such a victory, in discovering what he had discovered: and God had fulfilled for him all his desires, as after he had experienced in Castile so many adversities and contradictions, everything had been brought about as he desired. And as before, he had directed his purpose to God and had conducted his enterprise for Him, and he had heard him and given him all that be had asked, it was to be believed that God would fulfil what was commenced and deliver him in safety. Especially since he had delivered him on his departure when be had greater reason to fear on account of the difficulties he had with the sailors and people who were with him, who all with one voice determined to return and to rebel against him, making protestations, and the eternal God gave him strength and courage against them all; and because of many other wonderful things which God had manifested in him and by him on that journey, besides those which their Highnesses knew from the persons of their house. So that he says he ought not to fear the said tempest. But his weakness and anxiety he says would not allow his mind to become reassured. He says moreover, that he also felt great anxiety on account of the two sons whom he had in Cordova at school, as he had left them orphaned of father and mother in a foreign land, and the Sovereigns did not know of the services which he had rendered them on the voyage be had made and the very favourable news he was taking them, on account of which they would be moved to succour his sons. For this reason, and that their Highnesses might know how our Lord had given him the victory in everything which be desired about the Indies, and that they might know there were no tempests in those regions, which be says may be known by the fact that the grass and trees bring up and grow almost
into the sea, and that if he should be lost in that tempest the Sovereigns might have information about his voyage, he took a parchment and wrote upon it all that he was able in regard to everything which he had found, earnestly beseeching whomsoever might find it to carry it to the Sovereigns. He enveloped this parchment in a waxed cloth, tied it very securely, and ordered a large wooden barrel brought, and placed the parchment in the barrel without any person knowing what it was, as they all thought it was some act of devotion, and thus he ordered it thrown into the sea. Then with showers and disturbances the wind changed to the west, and he sailed thus before the wind with only the foresail for about five hours; the sea was very rough and he went a distance of about two and a half leagues to the north-east. He had taken down the “papahigo” from the mainsail, for fear that some wave of the sea would carry it all away.
FRIDAY, FEBRUARY 15.
Yesterday after sunset the skies commenced to clear toward the west, and indicated that the wind was about to blow from that direction. He had the bonnet placed on the mainsail: the sea was yet very high, although it was subsiding a little. He went to the east-north-east at the rate of four miles an hour and in the thirteen hours of the night they went thirteen leagues. After sunrise they saw land: it appeared to them at the prow to the east-north-east. Some said that it was the island of Madeira, others that it was the Rock of Cintra in Portugal, near Lisbon. The wind changed and blew ahead from the east-north-east and the sea came very high from the west: the caravel must have been five leagues from land. The Admiral, according to his navigation brought himself to be off the Azores Islands, and believed that the land they saw was one of them: the pilots and sailors believed that they were already off Castile.
SATURDAY, FEBRUARY 16.
All this night he beat against the wind in order to gain the land, which he already recognised as an island, at times going to the north-east, at others to the north-north-east, until sunrise, when he directed his course to the south in order to reach the island which they no longer saw because of the very murky weather, and he saw at the stern another island which was distant about eight leagues. From sunrise until night he tacked about to reach land, in spite of the strong wind and high sea which it raised. At the hour of Salve which is at the beginning of the night, Some saw light to the leeward, and it appeared that it must be the island which they first saw yesterday: and all night he continued beating about and drawing as near as he was able to see if at sunset he could distinguish any of the islands. This night the Admiral rested a little, because he had not slept nor had been able to sleep since Wednesday, and his legs had become very much crippled from being always exposed to the cold and water and from having had little nourishment. At sunrise he navigated to the south- south-west and at night he reached the island and on account of the very dark and cloudy weather he could not recognise what island it was.
MONDAY, FEBRUARY 18.
Yesterday after sunset he went around the island to see where he could anchor and get tidings: he anchored with one anchor and afterwards lost the anchor: he set sail again and heat about all the night. After sunrise he again approached the northern part of the island and cast anchor where it appeared best to him, and sent the boat to land: and they had speech with the people of the island and learned that it was the island of Santa Maria, one of the Azores; and the inhabitants indicated to them the harbour where they could enter with the caravel and they said they had never seen such a tempest as that which had prevailed during the past fifteen days, and that they wondered how they had escaped: they offered many thanks to God {he says} and rejoiced greatly on account of the news they heard of the Admiral's having discovered the Indies. The Admiral says that his navigation had been very true and that he had steered well, for which many thanks should be given to our Lord, although he made them a little beyond their true situation; but he had considered it sure that he was in the region of the Azores Islands, and that this island was one of them. And he says he pretended to have gone a longer distance to confound the pilots and sailors who steered, and to remain Master of the course to the Indies, as he had done, because no one of them all was certain of his course, so that none could be sure of his course to the Indies. TUESDAY, FEBRUARY 19.
After sunset three men came to the shore of the island and called. He sent them the boat in which they came to the ship and brought fowls and fresh bread, and it was a Carnival Day: and they brought other things which the captain of the island sent, who was called Juan de Castaneda, saying that he knew the Admiral very well and that he did not come to see him on account of its being night: but that at dawn he would come and bring him more refreshment, and bring with him three men from the caravel who remained there, and that he did not send them back on account of the great pleasure he had with them, hearing about their voyage. The Admiral ordered that the messengers should be paid much honour and ordered beds to be given them in which to sleep that night, because it was late and the village was distant. And as on the Thursday past, when they were in the midst of the anxiety occasioned by the tempest, they made the vow and vows aforesaid, and the vow that on the first land where there was a house of Our Lady they would go in shirts, etc., he decided that half of the people should go to fulfil it at a small house which was near the sea, like a hermitage, and he would go afterward with the other half. Seeing that the country was safe, and confiding in the offers of the Captain and in the peace reigning between Portugal and Castile, he begged the three men to go to the village and send a priest to say a mass for them. Half of the people went in their shirts, in fulfilment of their vow, and being at their prayers, they were attacked by all the villagers on horseback and on foot with the Captain, who captured them all. Then the Admiral remained unsuspectingly until eleven o'clock in the day, expecting the boat, in
order to go himself with the other people and fulfil his vow, and seeing that the people did not come, he suspected that they were detained or that the boat was wrecked, because all the island is surrounded by very high rocks. The Admiral could not see this affair, because the hermitage was behind a point. He raised anchor and set sail directly toward the hermitage and he saw many horsemen who alighted and entered the boat armed, and came to the caravel to take the Admiral. The Captain arose in the boat and asked for his personal safety from the Admiral and he said that it was assured to him. But: why was it that he saw none of his people in the boat? And the Admiral added that if he would come and enter the caravel that he would do all that he wished. And the Admiral tried with smooth words to get him to come so that he could take him to recover his people, not believing that he violated faith in giving him security, since he, having offered him peace and security, had broken his promise. He says that as the Captain had a bad purpose he did not trust himself to enter. Having seen that the Captain did not approach the caravel, the Admiral begged him to tell him the cause for his detaining his people, and said that it would annoy the King of Portugal and that in the land of the Sovereigns of Castile the Portuguese receive great honour and they enter it and are as safe as in Lisbon: and that the Sovereigns had given them letters of recommendation for all the Princes and Lords and men in the world, which he would show the Captain if he would approach and that he was their Admiral of the Ocean-sea and Viceroy of the Indies, which now belonged to their Highnesses, the provisions for which, signed with their signatures and sealed with their seals, he would show him and which he did show him at a distance: and that the Sovereigns felt much love and friendship for the King of Portugal and had ordered him to pay all the honour he was able to the ships of Portugal which he might encounter: and that even if he would not give him his people, he would not give up going to Castile, since he had sufficient people to navigate to Seville, and the Captain and his people would be well punished for offering them that insult. Then the Captain and the others replied that they did not know a King and Queen of Castile here, nor their letters, neither were they afraid, and rather they would have them know that it was Portugal,– almost menacing them. When the Admiral heard this he felt great resentment and he says he thought some differences had taken place between the Kingdoms after his departure, and he could not suffer that they should not reply to the Portuguese, which was right.
Then that Captain again rose at a distance he says and told the Admiral to go away with the caravel to the harbour and that all he was doing and had done, the King his Lord had sent him orders to do. The Admiral called on those who were in the caravel to witness this and the Admiral again called to the Captain and to them all and gave them his faith, and promised, by right of his authority, not to descend from or leave the caravel until he had taken a hundred Portuguese to Castile, and had depopulated all the island. And so he anchored again in the harbour where he was first, as the weather and wind
were very unfavourable for anything else. WEDNESDAY, FEBRUARY 20.
He ordered the ship repaired and the pipes filled with sea-water for ballast, because he was in a very bad harbour and he feared his cables might be cut, and it was so. For this reason he set sail toward the island of San Miguel, although in none of the Azores islands is there a good harbour for the weather which prevailed then, and he had no other safety than to put out to sea. THURSDAY, FEBRUARY 21.
He started yesterday from that island of Santa Maria for the island of San Miguel to see if he could find a harbour in which to endure such bad weather as prevailed, with a great deal of wind and a high sea and he went until night without being able to see either one land or the other on account of the extreme darkness and obscurity which the wind and sea caused. The Admiral says that it was with little pleasure because he had only three sailors who knew the sea, as the most of those who were there knew nothing of the sea. He beat about all this night in a very great tempest and in great danger and difficulty; and that in which the Lord was merciful to him was that the sea or the waves, only came from one direction, because if there had been a cross-sea as in the past, he would have undergone very serious injury. After sunrise, having found that he did not see the island of San Miguel, he decided to return to Santa Maria to see if he could recover his people and the boat and the cables and anchors he left there.
He says he was astonished at such bad weather as there was in those islands and regions, because in the Indies he navigated all that winter without anchoring and it was good weather all the time, and that, for one hour alone he did not see the sea so that he could not navigate well, and in these islands he had experienced such a serious tempest and the same happened to him on his departure as far as the Canary Islands: but having passed them, he always found the winds and the sea very temperate. In conclusion the Admiral says that the sacred theologians and learned philosophers well said that the earthly Paradise is at the end of the Orient, because it is a most temperate place. So that, those lands which he had now discovered, are {he says} the end of the Orient.
FRIDAY, FEBRUARY 22.
Yesterday he anchored at the island of Santa Maria in the harbour or port where he had first anchored, and then a man came and called from some rocks which were facing them, telling them not to go away from there. Then the boat came with five sailors and two priests and an escribano {notary}. They asked for guarantee of security, and the Admiral having given it, they mounted upon the caravel and as it was night they slept there, and the Admiral paid them what honours he was able. In the morning they required him to show them the authority from the Sovereigns of Castile, in order to prove to them that he had made that voyage by authority of the Sovereigns. The Admiral felt that they did that in order to make it appear that they had not done wrong
before, but that they were right, as they had not been able to take the person of the Admiral which they must have intended to get into their hands when, they came armed in the boat; but they saw that the game did not turn out favourably to them and they feared what the Admiral had said and threatened, which he intended to do and believed that he could carry out successfully. Finally in order to obtain the people they had, he was obliged to show them the general letter from the Sovereigns for all the Princes and Lords of High Degree, and the other provisions; and he gave them what he had and they went to land satisfied and then they let all the people go with the boat, from whom he learned that if they had taken the Admiral they would never have allowed him to go free, because the Captain said that the King, his Lord, had commanded him to do as he did.
SATURDAY, FEBRUARY 23.
Yesterday the weather commenced to show signs of becoming better, and he raised the anchors and went around the island in search of a good anchorage where he could take wood and stone for ballast, and he could not find an anchorage until the hour of “completas.”
SUNDAY, FEBRUARY 24.
He anchored yesterday in the afternoon to take wood and stone, and as the sea was very high the boat could not reach land and at the passing of the first night watch the wind commenced to blow west and south-west. He ordered the sails raised on account of the great danger there is in those islands from remaining at anchor with a south wind, and a south-west wind easily shifts till it blows south. And having seen that it was good weather to go to Castile, he abandoned his purpose of taking wood and stone and ordered the course steered to the east, and he went until sunrise, which would be six hours and a half, at the rate of about seven miles an hour, which are forty-five miles and a half. From sunrise until sunset he went six miles an hour, which in seven hours was sixty-six miles and with the forty-five and a half travelled in the night, it made one hundred and eleven and a half, and consequently twenty- eight leagues.
MONDAY FEBRUARY 25.
Yesterday after sunset he navigated to the east upon his course, five miles an hour: in thirteen hours of this night he went about sixty-five miles which are sixteen leagues and a quarter. From sunrise until sunset he went another sixteen leagues and a half with the sea calm, thanks be to God. A very large bird came to the caravel which appeared to be an eagle.
TUESDAY, FEBRUARY 26.
Yesterday after sunset he navigated on his course to the east, the sea calm, thanks be to God: the most of the night he went about eight miles an hour, which was one hundred miles or twenty-five leagues. After sunrise there was little wind: there were showers, and he went a matter of eight leagues to the east-north-east.
WEDNESDAY, FEBRUARY 27.
This night and day he went out of his course on account of the contrary winds and the great waves and high sea and he found himself one hundred and twenty-five leagues from the Cape of St. Vincent and eighty from the island of Madeira and one hundred and six from the island of Santa Maria. He was very much troubled with such tempests, now that he was so near the end of his journey.
THURSDAY, FEBRUARY 28.
He went in the same manner this night with diverse winds, to the south and to the south-east and to one side and the other and to the north-east and to the east-north-east, and in this manner he went all this day.
FRIDAY, MARCH 1.
He went this night to the east quarter of the north-east, twelve leagues: by day he ran to the east quarter north-east, twenty-three leagues and a half. SATURDAY, MARCH 2.
He went this night on his course to the east, quarter north-east, twenty-eight leagues, and in the day he ran twenty leagues.
SUNDAY, MARCH 3
After sunset he navigated on his route to the east. A hurricane came upon him which split all his sails, and he saw himself in great danger, but God willed that they should be delivered from it. They drew lots to send a pilgrim {he says} to Santa Maria de la Cinta in Huelva, who was to go in his shirt, and the lot fell to the Admiral. They all made a vow also to fast the first Saturday after, on bread and water. He went about sixty miles before the sails were split. Then they went with bare masts on account of the great tempest of wind and sea which rolled over them from two directions. They saw indications of being near to land, and found themselves quite near to Lisbon.
MONDAY, MARCH 4.
Last night they experienced a terrible tempest, and they thought they would be lost from the seas which came from two directions, and the winds which it appeared would raise the caravel in the air, and the water from the sky and the lightnings from many directions. It pleased our Lord to sustain them and they went thus until the first watch when our Lord showed them land, the sailors seeing it: and then in order not to approach the land until they might know it and see if there was any harbour or place to save themselves, he raised the “papahigo” as there was no other remedy and they sailed some distance although with great danger, putting to sea, and thus God guarded them until day, and he says that it was with infinite labour and fright. Day having come he recognised the land, which was the Rock of Cintra, which is near the river of Lisbon, where he determined to enter as he was not able to do anything else: so terrible was the tempest which prevailed in the village of Cascaes, which is at the entrance of the river. He says the people of the village were offering prayers for them all the morning and after he was inside the river the people came to see him, through wonder as to how they had escaped. and thus at the hour of tercia he came to stop at Rastelo, inside the river of Lisbon,
where he learned from the sea-faring people, that there was never a winter with so many tempests, and that twenty-five ships had been lost in flanders, and others were there which had not been able to go out for four months. Then the Admiral wrote to the King of Portugal, who was nine leagues from there, that the Sovereigns of Castile had ordered him not to fail to enter the harbours of his Highness to ask what he might need in return for his money: and he asked the King to give him authority to go with the caravel to the city of Lisbon, as some dishonest persons thinking that he carried a great deal of gold and he being in a depopulated despoblado harbour, might undertake to commit some dishonest action: and also that his Highness might know that he did not come from Guinea but from the Indies.
TUESDAY, MARCH 5.
To-day Bartholomew Diaz of Lisbon, the Patron of the large ship of the King of Portugal which was also anchored in Rastelo and which was better furnished with artillery and arms {the Admiral says} than any ship he ever saw, came with a small vessel armed to the caravel, and told the Admiral to enter the small vessel in order to go and give account to the factors of the King and to the Captain of the said ship. The Admiral replied that he was the Admiral of the Sovereigns of Castile, and that he did not render such accounts to such persons, nor would he get off from the ships or vessels where he was, unless he was obliged to by force of arms. The Patron replied that he might send the Master of the Caravel: the Admiral replied that he would neither send the Master nor any other person unless it was by force, because he considered it the same to allow a person to go as to go himself, and this was the custom of the Admirals of the Sovereigns of Castile to die rather than to give up their people. The Patron moderated his demands, and said that since he had formed that determination that it should be as he wished; but that he begged him to order the letters from the Sovereigns of Castile shown to him, if he had them. It pleased the Admiral to show them to him and then the Patron returned to the ship and related the matter to the Captain, who was called Alvaro Dama, who came to the caravel in great state with kettle-drums and trumpets and pipes, making a great display: and he talked with the Admiral and offered to do everything that he ordered him to do.
WEDNESDAY, MARCH 6.
Having learned that the Admiral came from the Indies so many people came from the city of Lisbon to-day, to see him and to see the Indians, that it was a wonderful thing to see them and the way they all marvelled giving thanks to our Lord and saying that through the great faith of which the Sovereigns of Castile possessed and their desire to serve God, his High Majesty had given them all this.
THURSDAY, MARCH 7.
To-day an exceedingly large number of people came to the caravel and many
knights, among them the factors of the King, and they all offered infinite thanks to our Lord for such great good and increase of Christianity, which our
Lord had given to the Sovereigns of Castile, which he says they attributed to the fact that their Highnesses labored and applied themselves for the increase of the Religion of Christ.
FRIDAY, MARCH 8.
To-day the Admiral received a letter from the King of Portugal by Don Martin de Norona, in which letter the King begged him to come where he was, since the weather was not suitable for the departure of the caravel: and he did so in order to avoid Suspicion, although he did not wish to go and he went to sleep at Sacanben: the King ordered his factors to give the Admiral and his people everything they needed for the caravel without money, and that everything should be done as the Admiral wished.
SATURDAY, MARCH 9.
To-day he left Sacanben, to go where the King was, which was at the valley of Paraiso, nine leagues from Lisbon: as it rained he was not able to reach there until night. The King ordered that he should he received with great honour by the principal persons of his house, and the King also received him with great honour, and showed him much favour, and ordered him to be seated and talked with him very well, and told him that he would order everything done which would be of use to the Sovereigns of Castile and to their service, and more fully than as if it were for his own service. And he showed that he felt great pleasure that the voyage had terminated favourably, and that it had been made; although he understood that in the capitulation between the Sovereigns and himself, that this conquest belonged to him. The Admiral replied to this that he had not seen the capitulation and did not know anything other than that the Sovereigns had commanded him not to go to the Mine nor to any part of Guinea, and that this had been proclaimed in all the ports of Andalusia before he started on the voyage. The King graciously responded that he was certain that mediators would not be necessary in this matter. He gave him as a host the Prior of Clato, who was the most important person who was there, from whom the Admiral received many honours and favours.
SUNDAY, MARCH 10.
To-day after mass the King repeated to the Admiral that if he needed anything it would be given to him at once: and he talked with the Admiral a great deal about his voyage, and always ordered him to he seated and paid him great honour.
MONDAY, MARCH 11.
To-day the Admiral took leave of the King. who told him some things to say to the Sovereigns on his part, showing great kindness toward him all the time. The Admiral departed after eating and the King sent Don Martin de Norona with him, and all those cavaliers came to accompany him, and paid him honours for quite a length of time. Then he came to a monastery of San Antonio, which is near a place which is called Villafranca, where the Queen was staying; and he went to present his homage to her and to kiss her hands, because she had sent to say that he must not go away until she saw him: and
with her was the Duke and the Marquis, and the Admiral received great honour. The Admiral took leave of her at night and went to sleep at Llandra. TUESDAY, MARCH 12.
To-day as he was about to start from Llandra for the caravel, a squire from the King arrived, who offered him on the part of the King, if he wished to go to Castile by land, to go with him, and procure lodgings and beasts of travel for him and everything he might need. When the Admiral parted from this squire, the squire sent him a mule for himself and another for his pilot, whom he had with him, and he says he learned that the squire had ordered that twenty small short swords {espadines} should be given to the pilot; and he says that it was said that this was all done that the Sovereigns might learn of it. He reached the caravel in the night.
WEDNESDAY, MARCH 13.
To-day at 8 o'clock in a high sea and with the wind north-north- west, he raised the anchors and set sail to go to Seville.
THURSDAY, MARCH 14.
Yesterday after sunset, he pursued his course to the south and before sunrise he found himself off the Cape of San Vincent, which is in Portugal. Then he navigated to the east to go to Saltes, and he went all day with a light wind until the present, when he is off Furon.
FRIDAY, MARCH 15.
Yesterday after sunset he navigated on his course until day, with a light wind, and at sunrise he was off Saltes, and at the hour of mid-day with the tide rising, he entered by the bar of Saltes until he was inside the harbour from which he had departed August 3 of the past year; and thus he says that this writing is now finished, excepting that he intended to go by sea to Barcelona in which city he was informed that their Highnesses were staying and this was in order to make them a relation of all his voyage which our Lord had permitted him to make, and for which He had inspired him. For certainly besides that, he knew and held to it firmly and strongly without scruple, that His Exalted Majesty does all good things, and that everything is good except sin and that nothing can be estimated or thought which is not with His consent. “This voyage I know says the Admiral has miraculously proved it to be so, as can be learned from this writing by the many remarkable miracles which have been shown on the voyage and for me, who have been stick a long time in the Court of Your Highnesses, with the opposition and against the advice of so many of the principal persons of your house, who were all against me, treating this matter as a hoax. I hope in our Lord that it will be the greatest honour for Christianity, although it has been accomplished with such ease {que asi ligeramente haya jamas aparecido}.” These are the final words of the Admiral Don Christopher Columbus in regard to his first voyage to the Indies, and his discovery of them.
The Unknown History of Latino Lynchings
(Warning: this article contains images that some may find disturbing. Viewer discretion is advised.)
The following is a summary & analysis of Harvard Civil Rights-Civil Liberties Law Review article, Law of the Noose: A History of Latino Lynching by Richard Delgado.
SUMMARY
Delgado attempts to shed light on a largely unknown history of Latinos, particularly Mexican-Americans in the Southwest U.S., who were lynched between the years of 1846 and 1925. This is roughly the same time that many Blacks were lynched in the U.S., as well. While many know of the ominous and horrific fate that Blacks and African-Americans saw in the U.S., few know of the lynchings that Latinos were met with. Delgado challenges scholars and institutions by trying to unveil the truth on this shameful past, while exploring the history of these lynchings and explaining that English-only movements are a present-day form of lynchings.
Although research on Latino lynchings is relatively new, circa 2006-2009, lynchings have a deep rooted history. Such acts can be described as mob violence where person(s) are murdered/hanged for an alleged offense usually without a trial. Through reviewing of anthropological research, storytelling, and other internal & external interactions, there is believed to have been roughly 600 lynchings of Mexicans and Mexican-Americans beginning with the aftermath of the 1848 Treaty of Guadalupe-Hidalgo (this document essentially ended the Mexican-American war, where Mexico surrendered half of its land to the U.S.). This grim fate of Blacks & Mexicans in the U.S. was intertwined; both groups were lynched by Anglos for reasons such as acting uppity, taking jobs away from Anglos, making advances toward Anglo women, cheating at cards, practicing Witchcraft, and refusing to leave land that Whites coveted. Additionally, Mexicans were lynched for acting too Mexican; for example, if Mexicans were speaking Spanish too loudly or showcasing aspects of their culture too defiantly, they were lynched. Mexican women may also been lynched if they resisted the sexual advances of Anglo men. Many of these lynchings occurred with active participation of law enforcement. In fact the article reiterates that the Texas Rangers had a special animus towards persons of Mexican descent. Considering that Mexicans had little to no political power or social standing in a new nation, they had no recourse from such corrupt organizations. Popular opinion was to eradicate the Southwest of Mexicans.
Many of these lynchings were treated as a public spectacle; Anglos celebrated each of these killings as if the acts were in accordance with community wishes, re-solidifying society and reinforcing civic virtue. Ringleaders of such lynchings often mutilated bodies of Mexicans, by shooting the bodies after individuals were already dead, cutting off body parts, then leaving the remains on display perhaps in hung trees or in burning flames.
These lynchings took place in the Southwest U.S., in present-day Texas, California, Arizona, New Mexico, Colorado, and Nevada, amongst other states. The killings were carried out by vigilantes or other masked-men, as a form of street justice. These killings became so bad that the Mexican government lodged official complaints to the U.S. counsel in Mexico. Given that this region of the U.S. was at one time Mexican land, and it was shared with Indian/Indios, Mexicans, and Anglos, protests against the lynchings emerged. As legend has it, Joaquin Murrieta took matters into his own hands by murdering the Anglos responsible for the death of mythical figures Juan Cortina and Gregorio Cortes. Such acts were short-lived and perpetuated the conflict between Mexicans and Anglos.
Delgado goes on to cite that only some U.S. historians have written about these Latino lynchings and have pointed out that they occurred due to racial prejudice, protection of turf, and Yankee nationalism left over from the Mexican-American War. However, it has been concluded that such lynchings are a relatively unknown history due to a global pattern of shaping discourse as to avoid embarrassment of the dominant group. Those in power often have the ability to edit official records.
Further exploration reveals that these lynchings were not only edited & minimized outright, but were also ignored or misrepresented due to primary accounts in community newspapers being written in Spanish. Since very few mainstream historians read Spanish or consulted with these records, they were left to flounder. Also, many Latinos knew of these lynchings; their accounts were maintained, shared, and solidified as Mexican lore through ritualistically songs (corridos, actos, and cantares). Many oral cultures have equivalences of such interpretations. Today, Latino scholars are not surprised by history’s ignoring of such events; postcolonial theory describes how colonial societies almost always circulate accounts of their invasions that flatter and depicts them as the bearers of justice, science, and humanism. Conversely, the natives were depicted as primitive, bestial, and unintelligent. Subsequently, colonialists must civilize the natives, use the land & its resources in a better fashion, and enact a higher form of justice. The official history is written by the conquerors, thus showing them in the best possible light.
Delgado questions whether such remnants of Latino lynchings may still be present in society today. This can best be exemplified through movements to make English the official language of the U.S., forcing immigrants to assimilate to the dominant Anglo culture. Such actions can be illustrated in movements to end bilingual school opportunities and enforce English-only speaking at jobs, businesses, etc. Postcolonial scholars argue that such movements facilitate children to reject their own culture, acquire English, and forget their native language. These actions have far dire [documentable] consequence, like social distress, depression, and crime. As such, Delgado ventures to say that these actions are an implicit form of lynching.
Delgado ends the piece by saying that hidden histories of aggression, unprovoked war, lynchings, and segregation are corroborated/proliferated today by the mass media and entertainment industry. These groups, along with other scholars, have the opportunity to redress this history and reject further practices against Latinos. Otherwise, marginalized groups find themselves in a position where they are alienated from their family/identity/culture, co-opted, and unable to resist further oppression.
ANALYSIS
Such history is imperative to the framework of Americana and for acknowledgement purposes, not only because it is a matter of fact, but because this history is relevant to the ancestors of the land. History has always been exploited to benefit those who are in power, so to maintain their structures. However, today, I would argue that current powerbrokers would gain more respect & credibility by being honest with themselves and the actual history. Continuing to deny or ignore the history does an injustice to all. Current Chicanos, Mexican-Americans, and Americans alike would most benefit from this restoration for a few reasons.
First, a corrected version of history helps the people better understand themselves. Americans, Mexicans, the fusion of the two, in addition to people of the world, would recognize a better sense of their true identity & culture. The exploration of such history can perhaps allow for analysis of current rates of depression, crime/incarceration, and socioeconomic status(es). If we, the people, want to understand ourselves, we need to know the truth.
Secondly, if we want to understand why things are the way they are today, we can look to history. This shameful past can assist us in the interpretation of Mexican/American relations. Additionally, I believe that this understanding will help both groups reach a common ground with current relations. Since the year 2000 alone, the FBI has reported over 2,500 hate crimes against Latinos based on race and ethnicity. The U.S. is marred with a nasty & stalled immigration battle that is masked for hatred against Mexicans. In 2014, there is a continued, on-going crisis at the Southwest border affecting many children and families. With the history of these lynchings, it is now time for the greatest country in the world to make the wrong things right.
Again, we know that history can repeat itself, but only if we let it. Thus, the entire world needs to be educated on the true history of these lynchings. The more we are educated on such atrocities, the less likely we will allow them to happen again. Attacking the access of this knowledge is the third reason to explore this history. Ignoring the disastrous past does not make the history go away. With the knowledge of the truth, the Latino people can empower themselves to conquer stereotypes and achieve further greatness. Most Chicano/Latino studies programs in schools allow students to learn about their past while achieving higher marks. But in states like Arizona, educational officials have banned Chicano/Latino Studies in schools, and as a result have not allowed students to know the true history of the land they currently inhabit. This is not only a further atrocity, but it reaffirms Delgado’s point that current lynchings, lynchings of the mind, are happening today. This is blatant lying and it is unacceptable; when we lie to our government, we go to prison. When our government lies to us, it’s no big deal.
Furthermore, for those who are tired of people of color in the U.S. raising points of contention about racial issues in this country, you now see the justification. This is why we won’t be quiet about racism, racial prejudice, discrimination, etc. This is why well march in the streets for the Trayvonn Martin’s, reject the school to prison pipeline, and continue to spread awareness until administrative action is taken on a grand scale. Today’s generation is a bi-product and reflection of this history; not only are these lynchings continuing to happen, but the masterplan has worked. In order to achieve our full capabilities, we need to reject a fragmented history and seek a personal revolution, which starts with ourselves. And we can achieve this revolution through education & knowledge.
Be empowered.
Maximo Anguiano is a scholar, actor, and creative. Follow him on Twitter or Facebook.
REFERENCES
The Law of the Noose: A History of Latino Lynching. R. Delgado (2009). Harvard Civil Rights-Civil Liberties Law Review, 44, 297-312.
The Man Who Stole Puerto Rico
“Porto Ricans are a heterogenous mass of mongrels incapable of self-government… savages addicted to head-hunting and cannibalism.”
– Senator William B. Bate (D-Tennessee)
“The whole hemisphere will be ours in fact. By virtue of our superiority of race, it already is ours morally.”
– President William Howard Taft
On May 12, 1898, twelve US Navy ships bombarded San Juan for three hours. The sky turned black with cannon smoke. Homes were hit. Streets were torn. El Morro lighthouse and La Iglesia de San José, a 16thcentury church, were shelled repeatedly. Thirty thousand people fled the town in abject terror.
A few weeks later, planting his flag in the Ponce town square, US commander Gen. Nelson A. Miles, declared that:
“The chief object of the American military forces will be…to give to the people of your beautiful island the largest measure of liberties consistent with military occupation.
We have not come to make war against a people of a country that for centuries has been oppressed, but on the contrary, to bring you protection, to promote your prosperity, to bestow upon you the immunities and blessings of the liberal institutions of our government…and to give the advantages and blessings of enlightened civilization.”
The “blessings” and “advantages” were few. Instead, immediately after the US invasion of 1898, a wave of carpetbaggers swarmed over the island like a plague of locusts. Within forty years, they picked her clean of her natural resources. Any Puerto Rican who opposed this too vigorously was shot, imprisoned, or simply “disappeared.”
Every few years, the US government sent four men to ensure this colonial relationship: the Chief Auditor of the island, the Treasurer, the Chief of Police, and the Governor.
The Governor had the greatest authority, since he could hire and fire the other three.
Let us examine two of those governors.
CHARLES HERBERT ALLEN – the sugar king (1900-01)
Charles Herbert Allen was the first civilian governor of Puerto Rico (1900-1901). Though he never served in the military, he loved to dress in military regalia and have people address him as “Colonel.”
Allen arrived on the island like a Roman conqueror with a naval cannon salute, the Eleventh United States Infantry Band blaring in front of him, and hundreds of armed men marching behind him.
It was a rainy, nebulous day – unusually dark for the island of Puerto Rico.
An assistant held an umbrella over Allen’s head, as he marched through the heart of San Juan, and into the governor’s mansion.
The mansion was gift-wrapped. Allen delivered his inaugural address behind the largest, most imperial flags that Puerto Ricans had ever seen.
Gov. Allen wasted no time. He immediately created a budget for the entire island – within a matter of weeks, and with little consultation or oversight. This “dark room budget” had its uses.
By raising property taxes, withholding municipal and agricultural loans, and freezing all building repair and school construction funds, Allen raided the island treasury and re-directed its budget to subsidies for U.S.-owned farm syndicates, no-bid contracts for U.S. businessmen, and roads built by agents from his father’s Massachusetts lumber business (Otis Allen Lumber), at double the old costs.
Through his dark room budget, Allen also created new agencies, offices and salary lines – all filled by U.S. bureaucrats. By the time Allen left in 1901, nearly all of the governor’s 11-member Executive Council were U.S. expatriates and half the appointive offices in the government of Puerto Rico had been given to visiting Americans, 626 of them at top salaries.
But Allen developed a larger plan. Throughout his “First Annual Report” to U.S. President McKinley, there are clear indications of where Allen was headed:
“The soil of this island is remarkably productive…as rich as the delta of the Mississippi or the valley of the Nile.”
“With American capital and American energies, the labor of the natives can be utilized to the lasting benefit of all parties.”
“Porto Rico is really the ‘rich gate’ to future wealth… by that indomitable thrift and industry which have always marked the pathway of the Anglo-Saxon.”
“The yield of sugar per acre is greater than in any other country in the world.”
“A large acreage of lands, which are now devoted to pasturage, could be devoted to the culture of sugar cane.”
“The cost of sugar production is $10 per ton cheaper than in Java, $11 cheaper than in Hawaii, $12 cheaper than in Cuba, $17 cheaper than in Egypt, $19 cheaper than in the British West Indies, and $47 cheaper than in Louisiana and Texas.”
This was no mere “First Annual Report” to the President. It was a business plan for a sugar empire, and Allen quickly staked his claim. A few weeks after handing in this report, on September 15, 1901, Allen resigned as governor and headed straight to Wall Street, where he joined the House of Morgan as vice-president of both the Morgan Trust Company, and the Guaranty Trust Company of New York.
Allen built the largest sugar syndicate in the world, and his hundreds of political appointees in Puerto Rico provided him with land grants, tax subsidies, water rights, railroad easements, foreclosure sales and favorable tariffs.
Sugar cane railroad, owned by U.S. banking syndicates
By 1907 Allen’s syndicate, the American Sugar Refining Company, owned or controlled 98% of the sugar processing capacity in the United States and was known as the Sugar Trust. By 1910 Allen was Treasurer of the American Sugar Refining Company, by 1913 he was its President, and by 1915 he sat on its Board of Directors.
By 1930, 45 percent of all the arable land in Puerto Rico had been converted into sugar plantations owned by Charles Herbert Allen and US banking syndicates. These syndicates also owned the insular postal system, the entire coastal railroad, and the San Juan international seaport.
To put it plainly: as the first civilian governor of Puerto Rico, Charles H. Allen used his governorship to acquire an international sugar empire, and a controlling interest over the entire Puerto Rican economy.
You may have heard of Charles Allen’s sugar empire. Today, it is known as Domino Sugar.
GENERAL BLANTON WINSHIP – the enforcer (1934-39)
Within a few years, Puerto Ricans began to question the benevolence of their neighbor from the north. They began to wonder how they’d lost ownership of their own land, to giant sugar canecentrales that were wholly owned by US banking interests. They questioned how they could work 12 hours a day, 60 hours a week, and yet their families were still starving.
In 1929, one writer stated it very clearly:
“Puerto Rico has become a land of beggars and millionaires, of flattering statistics and distressing realities. More and more it becomes a factory worked by peons, fought over by lawyers, bossed by absent industrialists, and clerked by politicians. It is now Uncle Sam’s second-largest sweatshop.”
The situation became so desperate that, in 1934, the entire island went on a massive agricultural strike. The workers all refused to work 12 hours a day, for the starvation wages of 4 cents per hour, 45 cents per day.
Sugar cane workers on strike in Yabucoa
The US corporations became so alarmed that they formed the Citizens Committee of One Thousand for the Preservation of Peace and Order, and cabled President Roosevelt that “A state of actual anarchy exists. Towns in state of siege, police impotent, business paralyzed.” Roosevelt responded by appointing a US Army general from Macon, Georgia as the next governor of Puerto Rico: General Blanton Winship.
A MILITARIZED POLICE FORCE
From the moment he arrived, General Winship proceeded to militarize the entire island. He urged the building of a $4 million naval air base on the island, whose cost ultimately ballooned to $112,570,000. He created new, vigorous police training camps and spent his weekends touring them, along with every US military installation.
General Winship reviews U.S. Navy troops in Puerto Rico
He added hundreds of men to the insular police force, equipping each unit with machine guns, tear gas, and riot control equipment. He also established a Tommy gun training program for members of the Insular Police force.
Policeman with a tommy gun, issued by Gov. Winship
The General did not know much about economics or legislative procedure – in fact, his only major legislative proposals were more gardens throughout Puerto Rico, and the death penalty for Puerto Ricans.
But Winship understood power, force and fear. This was the man that Franklin Delano Roosevelt sent to solve “the Puerto Rican problem.” He was not sent to negotiate. He was sent to crush labor strikes, subdue Nationalists, and kill them if necessary. It didn’t take long for this to happen.
THE RIO PIEDRAS MASSACRE
On October 24, 1935, General Winship’s police surrounded the University of Puerto Rico campus in Rio Piedras to ensure a “peaceful” student meeting – but instead of maintaining “peace,” they shot and killed three Nationalists. They also killed a man named Juan Muñoz Jiménez, who was out buying a lottery ticket.
Four days after the massacre, Winship’s Chief of Police declared to several island newspapers that, if the political agitation continued, he was ready to wage:
“war to the death against all Puerto Ricans.”
ELIAS BEAUCHAMP and HIRAM ROSADO
On February 23, 1936, two Nationalists named Hiram Rosado and Elias Beauchamp were arrested, dragged into the San Juan District Station, and shot within one hour.
Elias Beauchamp offers a salute, en route to death
A photo of Hiram Rosado, dead in the police station, appeared in the newspapers.
According to these papers, when Gov. Winship’s policemen drew their guns to execute him, Rosado stated, “Disparen pare que vean como muere un hombre.” (“Go ahead and shoot. Then you’ll see how a man dies.”)
Hiram Rosado, killed in the police station
On that same night of February 23rd two more Nationalists, Angel Mario Martinez and Pedro Crespo, were shot and killed by police in the town of Utuado.
The next day, from all over the island, thousands of mourners flocked into San Juan in a massive outpouring of grief and support. Winship tried to stop the marchers, but there were simply too many of them.
At the funeral services for Rosado and Beauchamp, Nationalist Party President Albizu Campos declared:
“The murder at Rio Piedras was his work… General Blanton Winship, who occupies La Fortaleza. Cold-blooded murder, to perpetuate murder as a method of government, is being carried out by the entire police force.”
POLICE RAIDS
Immediately after the assassination of the four Nationalists (Beauchamp, Rosado, Martinez and Crespo) General Winship unleashed a reign of terror throughout the island. On February 25, 1936, he convened a press conference and demanded the death penalty in Puerto Rico.
“I have recommended the passage of a death penalty to the legislature of Puerto Rico. This is absolutely necessary, in order to combat the wave of criminality on this island… I will enforce law and order in Puerto Rico no matter what the cost.”
Winship grew bolder. He prohibited all public demonstrations, including speeches at funerals. He declared martial law in random areas – the police would lay siege to those areas, conduct warrantless searches, break into people’s homes, and prevent other residents from entering or leaving the zone.
Despite this police repression, or perhaps because of it, groups of students began to lower the American flag from public schools, and to raise the Puerto Rican flag instead. At the Central High School in San Juan, the police arrested four students “standing guard” over their island’s flag.
With the appointment of Gen. Blanton Winship as governor of Puerto Rico, President Roosevelt had gotten his expected result: the complete militarization of Puerto Rico, and the establishment of a police state.
Then came the Ponce Massacre.
THE PONCE MASSACRE
The Ponce Massacre occurred on Palm Sunday in 1937. Here is a diagram of the event.
Winship’s policemen clearly encircled the unarmed men, women and children. In the upper right of the photo, we see the machine gunners marching down Calle Marina. In the bottom half of the photo, policemen block the entire street. From left to right the police are all drawing, pointing or firing their weapons. In the lower left civilians are trying to run away, with policemen right behind them. A cloud of gun smoke billows over their heads.
Within minutes, the street was filled with broken bodies and blood – 17 men, women and children murdered in broad daylight. Dozens maimed for life. Over 200 wounded. These policemen were all acting under the orders of Police Chief, who reported directly to General Blanton Winship.
To add insult to injury, Winship then tried to frame the victims; he forced the Ponce District Attorney to create false evidence and testimony, so that the Nationalists could be imprisoned for murdering…themselves.
If it weren’t for the photo you’ve just seen, General Winship would have gotten away with it.
A TIME TO CELEBRATE
One year after the Ponce Massacre, Winship decided to stage a massive military demonstration – precisely in Ponce, the town where he’d orchestrated the Ponce Massacre. The reviewing stand was in Plaza Degetau, just two blocks from the site of the massacre, where the bullet holes still pockmarked the battered buildings. Winship chose this location to “send a message” to Puerto Ricans, regardless of the personal anguish it might inflict.
Reviewing stand, two blocks from the Ponce Massacre. Winship is second from right.
Finally on May 11, 1939, Congressman Vito Marcantonio shouted a speech on the floor of the U.S. House of Representatives which listed, in great detail:
“The tyrannical acts of the Governor in depriving the people of Puerto Rico of their civil rights, the corruption and rackets that existed and were made possible only by the indulgence of the Governor, and the extraordinary waste of the people’s money.”
The very next day, FDR removed Winship from the governorship of Puerto Rico.
A PARTING GIFT TO THE ISLAND
Immediately after leaving the governor’s mansion, Winship became a lobbyist for the US corporations and sugar syndicates that owned the economy of Puerto Rico. His job was to persuade the US Congress to exempt Puerto Rico from the 1938 Fair Labor Standards Act; and he was performing brilliantly until Congressman Marcantonio fired another fusillade in the U.S. House:
“(I)n keeping with his five years of terror in Puerto Rico, he acted the part of the slimy lobbyist, and fought by means fair and foul to have the wage-and-hour law amended so that the sugar companies could pay 12 ½ cents instead of 25 cents an hour, and thereby gain $5,000,000 a year…so that the system of abysmal wage slavery could be perpetuated in Puerto Rico. Up to the very closing days of Congress this kicked-out Governor fought to have Puerto Rican workers removed from the protection of the wage-and-hour law.”
Winship was defeated. The workers got their 25 cents an hour – but the general was never indicted for his deadly actions in Puerto Rico. He was given a comfortable command during World War II, and finished his career as the oldest active soldier in the US military. He even prosecuted Nazi war criminals at the
Nuremberg Trials, for their crimes against humanity.
Winship was walking tall, waving documents, pointing fingers, trying other people for their crimes against humanity. This was ethical and righteous…because his crimes were committed in Puerto Rico, and therefore they didn’t count.
Nazi saboteur commission, Washington D.C. Commissioner Winship sits third from right.
The hypocrisy of sending Blanton Winship to prosecute Nazi war criminals, was a fitting coda to the symphony of sleaze and slaughter that the US bestowed on Puerto Rico in the name of good government.
Charles Herbert Allen wired the Puerto Rican economy.
Blanton Winship terrorized any Puerto Ricans who complained about it.
Other governors sent by the US were nearly as disastrous – E. Montgomery Reily, Robert Gore, Regis Post – a cavalcade of carpetbaggers, all treating Puerto Rico like the wild, wild west: a place to get rich quick, shoot the natives if necessary, then hurry back to Christian civilization.
The formula worked for many decades. As Calvin Coolidge said, the business of America is business.
For a blow-by-blow description of how these governors ruled over the island, and lined their pockets while doing it, please read…
Moors In America | Moorish Americans
Ancient Moors in America | We Didn’t Land On Plymouth Rock Because We Were Already Here
I originally wrote this on my personal Facebook page as a note but it’s very much applicable to this site so I thought I’d share it here as well. There is another article on here that talks about this subject and has a 400 year old book that talks about how America is the original Egypt. This was written in the 1600s by European explorers mind you. Here is the link to that article.
You know one of the biggest lies perpetrated is that we were all brought over here on slave ships from Africa. Seriously, it is a huge deal. Everything is hidden in plain sight too. They always act like the Native Americans are almost extinct, like they are less than 1% of the population.
When Christopher Columbus landed in the West Indies, he described the people on the islands as dark skin people like the Ethiopians. California was populated by black people as well. Europeans who sailed to America described and drew pictures of the people of America as a dark skin and copper colored with Afros, long hair, or wavy hair.
Black Californians |
Black people lived in North, Central, South America, and the Caribbean, before any slave ships ever arrived here which is why Columbus described the dark skin natives as looking like Ethiopians. Don’t fall for the fake outrage at people like Pharell Williams for embracing his Native American roots.
It’s ridiculous that white people masquerading as the true natives are able to do this. The last thing they need are so-called African Americans realizing who we are and getting some of the billions of dollars generated by the casino gaming industry.
There already are some black people that claim their roots and have been able to get into this lucrative industry and it pisses the fake Indians off. I’ll speak more on that in a different article but this runs deep. Trust me this is possibly the biggest lie perpetrated by this government and the lie is beginning to crumble down.
The Numbers Simply Don’t Add Up!!!
According to "Slave Statistics" by Hugh Thomas published in 1997 by Simon and Schuster somewhere around 500,000 Africans were transported to North America between 1619-1865. But because of the horrible conditions the Africans were packed in on the slave ships half of them died during the journey.
This means that the actual amount of Africans that made it to North America alive was between 250,000-300,000 over a period of 240 years. If so few Africans were brought over to North America why are there so many African Americans living here today? In 2013 US Census Bureau estimated 45 million African Americans in the United States. No other group in the US had a growth rate this high!
Statistics state less than 1% of all Indigenous people of North and South America are in existence as a result of European conquests. Ninety-five (95%) percent were massacred by Columbus and his European crews shortly after 1492. That quickly huh???
Around 1900, it was thought Native Americans were on the brink of extinction with only 250,000 left. Yet, there is actual physical evidence in the form of artifacts of dark skinned, curly hair texture natives. There are written accounts of the Native Americans being called Ethiopians by the European explorers and described as having the same features of the modern-day African American.
And as stated before, there are over 45 million people openly classified as African American according to the US Census Bureau. Let me paint a picture for you of what really happened.
What Really Happened
Notice his clothing, not only was he a free man but he was also skilled, educated, and played the violin.
Instead of physically killing off the Native Americans, they kidnapped them a-la 12 Years A Slave and sold them into bondage to other parts of the country. This is actually referred to as the internal slave trade. It was a very lucrative business that broke up families and severed generational ties that went back farther than any of the European colonists.
The children were split up and told that they came from some far away land called Africa (which is a continent and not a country by the way). This further disconnected them from any nation or root culturally. The slave traders lied about the slaves origins and sent them across state lines, all over the country.
The work was put in early to start changing the image of who/what was native to this land called America. By the late 1800s all eyewitness accounts of dark copper skin-toned people with curly or wavy hair had been downplayed or hidden in the vaults.
White people that had married into the tribe or been adopted into tribes were being given official recognition by the government as Indian tribes and by the time the Indian Bureau of Affairs was established you pretty much had to be white or damn near white to sit on the council.
From 1836 to 1914, over 30 million Europeans migrated to the United States. Many of these European immigrants were not what is now considered "white" and the only reason that the government opened up the doors of immigration to all of these people was to change the racial makeup of the growing country.
Fast forward to the present-day and we now have a large and growing (estimated population of over 70 million by 2060) population of African Americans that don’t even realize they are indigenous to this land.
Who Are The Real Native Americans
From IPOAA site (Indigenous Peoples of Africa and America)
Black African-Americans are composed of two main groups of Blacks, those who were in the US and the rest of the Americas before Columbus and were enslaved due to the Church Edict of the 1440’s, and those who were enslaved and brought from Africa after 1492.
This picture is of one of the original Black nations of California, the Black Californians or Black Mojave who lived in the hot parts of California. There were also other Black tribes and nations in California, including those who had a trading relationship with people in the Pacific Ocean.
The Black Californians fought with the Spanish, the Mexican Spanish and the Anglo-Americans up to the mid 1800’s. Some were enslaved by the Californios and freed after slavery was abolished in California. Many others contined fighting and they were pacified. Many of the Black Californians went to live in the Cities among other Blacks while some went to Mexico.
Today, California’s Black population is an indigenoius Black population in the same way that the Mexican populaton is indigenous. However, the Negro/Black population is also Aboriginal to California and the South West and since the Black race is basically as distinct as they were one thousand years ago to a greater extent than other peoples in California, one will not be able to tell who is of Black California ancestry and who is not. Both African-Americans and Black Californians are Africoid peoples.
This is one of the rare pictures (many are no doubt hidden of a Black Californian at a mission with a cowbell in one hand and a cross in the other (not shown). This pictures shows the Black Californian wearing a necklace similar to that of the picture with the Black Californian warrior with bow and arrows.
The region from Ohio to Mississippi and from California to Florida had a prehistoric and preColumbian Black population. There are many clues and pieces of evidence that show this to be true, including the fact that the descendants of one such group, the Washitaw Nation is recognized as a distinct Black nation and is said to have once controled a significant amount of land in the Mississippi Valley.
In Samuel Morton George’s essay, "An Inquiry Into the Distinctive Characteristics of the Aboriginal Race of America", he states that all indigenous Americans except the Eskimos "are one race, and that this race is peculiar , and distinct from all others" (pg. 12). Canada, North America, Mexico, Central and South America the physical characteristics of the natives had "All possess the long, lank, black hair, the brown and cinnamon colored skin, the heavy brow, the dull and sleepy eye, the full and compressed lips, and the salient butt dilated nose" (pg. 12).
I need to see my Uncle Odell’s research again because the stuff that he showed me years ago went back generations, we had cowboys and indian ancestors. They were black but noone was from Africa.
Self Explanatory |
We are indigenous to America, always have been here I bet. Black people have been all over the world for a long time. We didn’t need the Europeans that we taught science and navigation to bring us to a continent that they just found out about 500 years ago.
We are the ones that told them that the world wasn’t flat. Columbus had Moorish sailors on his ships with him. (A black navigator, Pedro Alonso Niño, a moor from Spain, traveled with Christopher Columbus’s first expedition to the New World. Look it up) We told them about the Americas and we were here to greet them at the shores.
We built pyramids and giant statues that looked just like us.
Don’t believe me. Check out what this white dude wrote about the indigenous Americans back in the 1800’s…
BOOKS LETTERS AND NOTES ON THE NORTH AMERICAN INDIGENOUS PEOPLE OF AMERICA, by George Catlin 1841
"All primitive tribes known in America are dark, coppered color with jet black hair, while most possess curls in the extreme, and every level of wavy hair in between. The texture of the hair is generally fine, soft or silk or course or harsh. The hair of the men, falling down to their hams and sometimes to the ground, is divided into plaits or slabs two inches wide and filled with a profusion of glue and earth, which become very hard and remains unchanged from year to year."
Today this form of hair is called dreadlocks
Nothing against Africa but this is my Motherland! My Great-Grandfather was Blackfoot Indian.
Dictionary 1828 Dictionary Definition of American
AMER’ICAN, n. A native of America; originally applied to the aboriginals, or copper-colored races, found here by the Europeans; but now applied to the descendants of Europeans born in America.
Slave Trade Was Real But Miss-represented
Slavery was definitely real. The thing is Native Americans were being kidnapped and sold into slavery and disconnected from their land. The amount of Africans transported to the Americas was greatly exaggerated.
The following information from the Stewart Synopsis further hammers this truth home.
In 1993, the United Nations Center for Human Rights, recognized the Washitaw de Dugdahmoundyah Muur Empire as the Oldest Indigenous group of people on Earth. The registered Project # 215/93 ensued. Just read this. 12,000,000 slaves arrived in the Americas between 1540 and 1850 over—a 310-year period (according to US History books). If you look at the following facts of published material, we are living under another ideological part of American Revisionist History. Also, the following undermines the whole breadth and depth of what is written in American history books. By using simple calculations, the following information can be ascertained:
Over a period of 310 years, is it fair to say that 64,000 slaves were transported annually to the Americas or has the transportation of slaves at the extent to which was claimed to the Americas one big myth? 12 million (12,000,000) Slaves were transported to the Americas (North, Central, South). Statistics state the 13 Colonies had a total of 600,000 slaves. (The first colony was Virginia 1585 – 1776–191 years). Between 1770 through 1860, there were 4 million slaves in the United States The largest seagoing vessel carried 400 slaves but not all of the ships were that large. Time of passage was 3 – 4 months. That means 200 vessels/ships per year would have to travel carrying 300 people. One ship could make 3 passages per year. The Trans-Atlantic Slave Trade Database says there were 1100 – 1400 voyages made over that 300 year period. If that is the case and each ship carried 400 people, the total number would be 560,000 Africans were transported. That number is close to the claim in Item 3 that says there were 600,000 slaves in the 13 colonies, (The chart shows 500,000) but that still does not add up. Because of the way humans were tightly packed one-half of them died inroute. In Item 4, there were 4 million slaves in the US in 1860. After the Civil War 3.5 million slaves were freed. Did Native American tribes help slaves escape or were Americans with African ancestry already part of the Native American Nations that existed before Columbus arrived on the scene? We know Native Americans were enslaved, and Native Americans also enslaved people, but were these people who were enslaved Native Americans of African ancestry? We already know that over 83% of all Americans with African ancestry have Native American blood, but a recent study claims that is not true. According to the study, only 4% of all Americans with African ancestry have Native American blood even though Genomic (chromosome) evidence indicates the Amerindian Gene B, C, and D are descended from African females before they migrated out of Africa 40,000 years ago.According to the figures above, many more slaving companies would have to be in the business of human trafficking annually to come up with the numbers of actually transported, but the published material lists only three (3) major companies that dealt in the slave trade and were given a 31 year monopoly by the British Government.The Royal Adventurer later was named the Royal African Company, so it was one in the same company. Independent companies engaged in slave trade, but there were only three (3) main companies engaged in human trafficking. The Guinea Company–at its height–had 15 ships from 1618 – 1650. The Guinea Company also dealt in gold, dyes, and other things other than just the human trafficking of slaves. British, French, Dutch, and Danish participated in human trafficking.Statistics have not taken into consideration the Portuguese ships that sailed at the time, but from what is out there, the Portuguese and Spanish transported 81,000 slaves to the Americas. We may never know how many people were transported by slave ship.Following is a table from "Slave Statistics" by Hugh Thomas published in 1997 by Simon and Schuster.After 20 years the Royal Adventurer–with its 15 ships had transported between 90,000 and 100,000 slaves. That is a long ways from 12,000,000 million slaves who were supposedly brought to the Americas. That is a lot of slaves not accounted for. Or is/was the Black/Brown birthrate that more accelerated than the White birthrate? The calculated median of 12 million. Divide it by 400 people—the largest slave vessels. That comes out to 30,000 trips. Records exist for 35,000 voyages.The statistics state only .05% or 1/2 of 1% of all Indigenous people of North and South America are in existence as a result of Christopher Columbus and his European travelers’ conquests. Ninety-five (95%) percent were massacred by Columbus and his European crews shortly after 1492.
It’s Time For The Truth To Come Out
Around 1900, it was thought Native Americans were on the brink of extinction with only 250,000 left.The United Nations recognizes the Washitaw Muurs Nation within the United States along with the other Indigenous people of America. The Declaration On Rights Of Indigenous People includes the Washitaw Nation, a nation that is made up of Black People who have the archaeological and historical evidence to prove that the original inhabitants of North and South America (so called "Indians") were Black People who came here from Africa.Have you been to a Powwow? I have been and was astonished at all of the Black Native Americans. The powwows I have attended were in Michigan and Ohio. Those Native Americans did not harbor runaway slaves which led me to believe the following: Black Indians are not solely a result of African slaves mixing with so-called Red Indians who were fleeing from slavery as many documented sources would have you to believe.Black Indians are indigenous to America—North, South, and Central before the so-called Red Man, before the Europeans, before the so-called Bering Strait crossings. The Olmecs, Washitaw, Moors, Yamasee, Mound Builders planted the seed of civilization in the Americas—Black Indians!"Over 200,000 ancient pyramids and huge mounds of the Earth in the shape of cones, animals and geometric designs can still be found from the southern coast of America to Canada. These structures were built by people known as "The Mound Builders." They were dark-skinned woolly-haired Blacks who were indigenous (native) to North America and kin to the Olmecs of South America.During Pangea, the Afrikan and American continents were joined. The Black Mound Builders were the Washitaw-Muurs (Ouachita-Moors), the ORIGINAL inhabitants of North and South America. Columbus was not entirely wrong in calling these people "Indians"! The true meaning of word "Indian" is ("INDI" meaning black, as in INDIa ink, hINDu and INDIgo the darkest color of the color spectrum). The massive remains of this ancient BLACK civilization /empire still stand in both North and South America.
Black people are indigenous to the Americas. Black Native Americans are not a result of the so called “red Indian” mixing with slaves. The so called “red Indian” comes from mixing with the European colonist.
Stewart Synopsis lists these black Native tribes:
The Washitaw of the Louisiana/Midwest
The Yamasee of the South East
The Iroquois
The Cherokee Indians
The Blackfoot Indians
The Pequot and Mohegans of Connecticut
The Black Californians (Calafians) (CAL in CALifornia literally means BLAK, after the name of the Great Mamma KALi / Queen KALifa)
The Olmecs of Mexico
The Darienite of Panama
Ask yourself, why is this information not taught in the classrooms and why are the Native Americans portrayed as “red” and not as black people when evidence shows otherwise?
Notes:
BOOKS LETTERS AND NOTES ON THE NORTH AMERICAN INDIGENOUS PEOPLE OF AMERICA, by George Catlin 1841
http://en.wikipedia.org/wiki/Immigration_to_the_United_States
http://en.wikipedia.org/wiki/Slavery_in_the_United_States
courtesy of The Final Call Newspaper
Yesterday, an interesting thing happened to me. I was told I am not Black.
The kicker for me was when my friend stated that the island of Puerto Rico was not a part of the African Diaspora. I wanted to go back to the old skool playground days and yell: “You said what about my momma?!” But after speaking to several friends, I found out that many Black Americans and Latinos agree with him. The miseducation of the Negro is still in effect!
I am so tired of having to prove to others that I am Black, that my peoples are from the Motherland, that Puerto Rico, along with Cuba, Panama and the Dominican Republic, are part of the African Diaspora. Do we forget that the slave ships dropped off our people all over the world, hence the word Diaspora?
The Atlantic slave trade brought Africans to Puerto Rico in the early 1500s. Some of the first slave rebellions took place on the island of Puerto Rico. Until 1846, Africanos on the island had to carry a libreta to move around the island, like the passbook system in apartheid South Africa. In Puerto Rico, you will find large communities of descendants of the Yoruba, Bambara, Wolof and Mandingo people. Puerto Rican culture is inherently African culture.
There are hundreds of books that will inform you, but I do not need to read book after book to legitimize this thesis. All I need to do is go to Puerto Rico and look all around me. Damn, all I really have to do is look in the mirror every day.
I am often asked what I am—usually by Blacks who are lighter than me and by Latinos/as who are darker than me. To answer the $64,000 question, I am a Black Boricua, Black Rican, Puertorique’a! Almost always I am questioned about why I choose to call myself Black over Latina, Spanish, Hispanic. Let me break it down.
I am not Spanish. Spanish is just another language I speak. I am not a Hispanic. My ancestors are not descendants of Spain, but descendants of Africa. I define my existence by race and land. (Borinken is the indigenous name of the island of Puerto Rico.)
Being Latino is not a cultural identity but rather a political one. Being Puerto Rican is not a racial identity, but rather a cultural and national one. Being Black is my racial identity. Why do I have to consistently explain this to those who are so-called conscious? Is it because they have a problem with their identity? Why is it so bad to assert who I am, for me to big-up my Africanness?
My Blackness is one of the greatest powers I have. We live in a society that devalues Blackness all the time. I will not be devalued as a human being, as a child of the Supreme Creator.
Although many of us in activist circles are enlightened, many of us have baggage that we must deal with. So many times I am asked why many Boricuas refuse to affirm their Blackness. I attribute this denial to the ever-rampant anti-Black sentiment in America and throughout the world, but I will not use this as an excuse. Often Puerto Ricans who assert our Blackness are not only outcast by Latinos who identify more with their Spanish Conqueror than their African ancestors, but we are also shunned by Black Americans who do not see us as Black.
Nelly Fuller, a great Black sociologist, stated: “Until one understands the system of White supremacy, anything and everything else will confuse you.” Divide and conquer still applies.
Listen people: Being Black is not just skin color, nor is it synonymous with Black Americans. To assert who I am is the most liberating and revolutionary thing I can ever do. Being a Black Puerto Rican encompasses me racially, ethically and most importantly, gives me a homeland to refer to.
So I have come to this conclusion: I am whatever I say I am! (Thank you, Rakim.)
(Rosa Clemente is the youth organizer for the F.R.E.E. Youth Empowerment Program of Central Brooklyn Partnership. She is also an organizer with Malcolm X Grassroots Movement and the co-host of WBAI’s “Where We Live” public affairs program.)
courtesy of The Final Call Newspaper
This month is Hispanic Heritage Month, a celebration to recognize the lives and contributions of people from Latin America and Spanish-speaking Caribbean countries in the U.S. This is an important month but how it is celebrated in the U.S. leaves many African-Americans not fully understanding the important stake we have in this month. That is because so often celebrations of this month very rarely highlight the important, vibrant Afro-Latino population living and working in every Latin American country. Every country—yes, even Mexico and Argentina.
Without a doubt, the experiences of some communities, including Afro-descendants and Indigenous, have historically gone unrecognized. The inclusion of Afro-descendants in mainstream conversation rarely happens but it is necessary in order to understand the truth of history and the present. African-Americans have a stake in ensuring that these conversations recognize the commonalities within our experiences and in highlighting race as a factor in Latin America.
Working in Latin America with women’s groups, youth and political organizations, I am heartened by numerous cultural similarities between African-Americans and Afro-Latinos. In culture, style and experiences we are in many ways the same people. I have said many times before our ancestors didn’t get to choose whether the slave ships stopped in Charleston, South Carolina, or in Rio de Janiero; it is only geography and language that separates us.
U.S. policymakers focused on Latin America, rarely focus or even acknowledge race as a major factor in Latin America. Unsurprisingly, both predominately White institutions and many Latin American governments reinforce each other’s apathy and ideological perspectives. Afro-Latinos, however, have not waited for policy wonks or their government to change on their own. They are changing their societies from within.
The numbers of people of African descent in Latin America are astounding. There are 150 million Afro-descendants in the Western Hemisphere. Brazil has more people of African descent than any country in Africa except Nigeria, making Afro-Brazilians the second largest population of Afro-descendants on the planet. The U.S. has the second largest population in the Hemisphere but it is quickly followed by Colombia, a country embroiled in a civil war with severe racial dimensions.
Rarely do we hear about the racial aspects of the war in Colombia on the evening news. Countries like Cuba and the Dominican Republic have formidable Afro-descendant populations but so does El Salvador, Honduras, Bolivia and Venezuela. Shockingly, anytime these countries are in the news, the coverage seems to “whitewash” the population implying this notion that racism is just an American construct.
These images rarely reflect the reality of racial diversity within these countries and give little space for heterogeneity of these communities. The few times we do see Afro-Latinos represented they are exoticized or regulated to the same stereotypical roles that African Americans have been struggling against.
Our own immigration debate in the U.S. is a very important area where Afro-Latinos have been rendered invisible. Immigration from Latin America is not a Black-Brown conflict. It is a result of unfair economic and political practices on both sides of the border. These practices disfranchise both African Americans and our brothers and sisters in the whole hemisphere. While immigration discussions explicate issues of alienation, race is rarely directly addressed as a factor in the movement of poor people into the U.S.
One thing that remains apparent is the similarity within our experiences. Regardless of country, we know that Afro-descendants throughout the Americas have less access to quality education, health care, housing and job security. Unfortunately, racism remains a reality throughout the world and Afro-descendant issues and priorities remain marginalized among U.S. foreign interests in Latin America.
I applaud U.S. policymakers who are prioritizing these conversations. During this year’s Congressional Black Caucus conference, Congressman Donald Payne led a panel to discuss and address these issues that face Afro-Latinos. We need to take those unique dialogues to challenge not only our own knowledge but the media and our policymakers to give voice to a population that is 150 million strong but so often go uncounted.
(Nicole C. Lee is the executive director of TransAfrica Forum.)
courtesy of The Final Call Newspaper
CAMPINHO DA INDEPENDENCIA, Brazil (IPS) – A Black community in the southern Brazilian state of Rio de Janeiro is trying to maintain its cultural heritage on nearly 600 acres granted to it by the government in 1999 as part of reparations to the descendants of slaves.
“I would define ‘quilombos’ as resistance by Black people, as their essence,” Vagner do Nascimento, president of the Association of Residents of Campinho da Independencia, tells IPS.
Afro-Brazilian girls during a Candomblé ceremony. Photo: WikiMedia Commons
November 20 was National Black Awareness Day in Brazil, in commemoration of the Nov. 20, 1695 death of the leader of Black resistance in Brazil, Zumbi dos Palmares. In some Brazilian states, including Rio de Janeiro and Sao Paulo, Nov. 20 is a holiday aimed at ‘reflection on the insertion of Blacks in Brazilian society.’
Situated to the southwest of the city of Rio de Janeiro, less than 20 miles from the town of Paraty in the middle of lush jungle that forms part of the Mata Atlântica (Atlantic forest), Campinho—as it is referred to by the people who live here—is one of the 3,524 quilombos distributed throughout Brazil, according to the Culture Ministry’s Palmares Cultural Foundation.
However, independent sources say there are 1,500 more quilombos—which were originally remote villages or collections of villages founded by runaway slaves, often hidden in the jungle.
In the quilombos, escaped slaves kept alive the cultures and lifestyles brought over from Africa. They also became bastions in the struggle for freedom.
After slavery was abolished on May 13, 1888, many quilombos became villages, where people depended on subsistence agriculture and small-scale trade.
“For us, the ‘quilombolas,’ as the people living in these places were known, are the synonym, you could say, of a society that did well for itself.”
Zumbi dos Palmares was a famous colonial period quilombo located in the Serra da Barriga mountains in what is today the northern state of Alagoas.
Palmares, which defended its freedom for over a century and at one point was home to as many as 50,000 escaped slaves, became a symbol in the fight against slavery in Brazil.
“People there lived and worked together, and consolidated their own values. That’s why Palmares is a really strong reference point for us, because here in Campinho the land is collectively owned, and we have collective forms of producing, of generating culture, of working,” says Mr. Nascimento.
Campinho has a unique history. Its 80 or so families descend from just three slave women: Antonia, Marcelina and Luiza. And according to the history that was orally transmitted from generation to generation, they weren’t just “ordinary” slaves, but came from the “Big House” and had culture and education.
As the story goes, shortly after the abolition of slavery, the landowners of the three haciendas in the region distributed the property to their former slaves and left.
Antonia, Marcelina and Luiza “gathered all the dispersed slaves together and brought them here with them,” says a member of the fifth generation of descendants, Laura María dos Santos, Campinho’s head of educational and cultural projects.
Ms. dos Santos, two young women named Daniele and Silvia, and the elderly Albertina do Nascimento head IPS’s welcoming committee—three generations of women who represent the strength of those who founded their community.
“This heritage is transmitted to our girls, who become women who know what their role is,” says Ms. dos Santos. She goes on to tell an anecdote: “When a man made a sexist remark, his niece, a girl from our community, said ‘uncle, in a woman’s land, the woman never dies’.”
Nor do the women in this community want their cultural heritage to die. The local residents association led by Ms. Nascimento is carrying out projects for the recuperation of the historical memory, craftsmaking, ethnic tourism, and the revival and sustainable production of traditional crops like cassava, rice, beans and corn.
Campinho was the first quilombo in the state of Rio de Janeiro to obtain a formal collective land ownership title, on March 21, 1999, after a struggle that began in the 1960s.
On one hand, the creation of the Bocaína National Park kept them from hunting and collecting fruits in the forest—activities they depended on for a living.
In addition, the construction of the Rio de Janeiro-to-Santos stretch of the BR-101 highway, between 1970 and 1973, drove up land prices and led to property speculation in the area.
The entire Paraty region became the target of interest on the part of large tourism ventures, and many people began to sell and leave their lands.
Those who stayed, like the community of Campinho, eventually won their battle. But other battles emerged, like the struggle for coexistence with a new touristy world of “rich people,” and the effort to preserve the local culture, says Ms. dos Santos.
“It’s a question of continuing to fight for our ethnic and traditional identity, while at the same time incorporating the technology to which young people have a right,” she adds.
On the other hand, as “Auntie Albertina” adds, there are other problems, like the fact that many of the local families have ended up working in nearby tourist condominiums.
“Soon, no one is going to want to work the land anymore,” laments the old woman, who says she would never give up her land, where she grows beans and rice, makes cachaça—a Brazilian liquor made from distilled sugar cane juice—and is her own boss.
The haciendas in the region produced homemade cachaça since the time of the three original slave women.
Referring to the women working outside the community, Silvia says “they see the rich women with their styles and want to imitate them. They have a nice house, but when they see their bosses home, they start to suffer, because they want one just like it.”
Another challenge is adopting new technologies, to which the children and young people in Campinho have access, generally in internet cafés, without forgetting their culture and traditional values.
According to Silvia, “there’s no formula for how to do that,” other than raising awareness in the community about the importance of keeping the culture alive.
The women see access to technologies like the Internet, community radio stations and video cameras as important, to be able to record their history and culture.
But the challenge is “to dominate technology, and not let technology dominate us.”
“We teach our youngsters that the worst sin is to let themselves be enslaved by anything,” she says.
Silvia moved away from the community when she was a little girl, and later became a community leader in a favela in Rio de Janeiro, where she went to live, like so many other quilombolas.
Her fear is that the quilombos will go down the road followed by the favelas and become mere shantytowns without proper infrastructure or sanitation, due to a lack of space to expand. As the local families grow, and the land is increasingly subdivided, the houses are more and more crowded together.
She recalls that many of the crowded favelas surrounding Rio and other cities today used to be areas similar to the quilombos, with gardens, open areas and natural water sources.
That is why she wants the government to grant more land to the descendants of the original escaped slaves, who argue that they have a right to the property.
“The houses have to be spaced out, so that if a woman fights with her husband, no one can hear,” Silvia jokes.
Campinho is also involved in ecological projects. “Although some environmentalists say the opposite, the best-preserved areas are the ones where the quilombolas live,” she argues.
The projects include the sustainable production of palm hearts and agroforestry. “First we feed the community, and later, we sell what’s left over, outside,” says Daniele.
“Auntie Albertina,” who the younger people in the community listen to with respect, speaks up again.
“On my plot of land I don’t let anyone kill even a little bird,” she says, recalling that in the past, her ancestors even ate toucans to survive, but pointing out that the birds have made a comeback in the surrounding jungle, which she calls “a great achievement.”
The people of Campinho have other collective subsistence activities, such as the sale of traditional crafts in tourist areas of Paraty, and a restaurant that specializes in typical Afro-Brazilian dishes, like “feijoada,” a stew of black beans, pork and beef, which was traditionally made with what was left over after the master’s family was served.
The community also has an ethnic tourism project, giving tours of the community that include visits to the old “senzala” or slave compound, the cassava flour production areas, and the community garden, as well as hikes in the jungle and cultural activities like traditional dance recitals.
November 20 was National Black Awareness Day in Brazil, in commemoration of the Nov. 20, 1695 death of the leader of Black resistance in Brazil, Zumbi dos Palmares
In some Brazilian states, including Rio de Janeiro and Sao Paulo, Nov. 20 is a holiday aimed at “reflection on the insertion of Blacks in Brazilian society.”
With Blacks officially making up half of the population of Brazil, the country has the second largest Black population in the world, after Nigeria.
For Vagner do Nascimento, the leader of the community, there is no doubt: the question is to “survive with dignity. That is the essence of Black people in Brazil today, whose ancestors were brought over from Africa.”
courtesy of The Final Call Newspaper
Indigenous people from all parts of Mexican state of Oaxaca, wearing traditional clothes and artifacts, in a celebration known as Guelaguetza. Photo: Wikipedia.org
Late last night, my father and I talked about how the ethnic term Latino mislabels Indigenous and mixed-Indigenous people from Mexico, Ecuador, Puerto Rico, etc. For a long time, we believed Latino and Hispanic correctly defined the Spanish-speaking mixed-Indigenous and Indigenous people in Latin America.
As we crossed the George Washington Bridge, I wondered, Why is this so? I mean it’s true. We do speak Spanish and we practice Spanish culture. But we also come from a land that is still governed by our Indigenous relatives. I thought hard about how to politely counter argue his belief. His opinion. His Latino identity.
“So I guess this means Filipinos are Hispanics or Latinos, too, right?” I said. “Think about it, they have Spanish names. They speak Spanish. They probably dance to Spanish music, too.”
He laughed at me. He said, “They are Asians, though. You can’t confuse their race with Spanish.”
“Exactly, so why are we the only ones considered Latino or Hispanic? Some of us are Indigenous, right? Think about it, papa. We are Guayakos and Manabítas. We come from family clans that stretch back for thousands of years of Indigenous tradition.”
“Well..” he stammers, “I would say, we’re Ecuatorianos.”
Latino or Hispanic is a term coined by the United States to identify Spanish-speaking people coming from south of Mexico. The reality is Spanish-speaking people from Latin America come from a variety of racial and cultural backgrounds. We are like a rainbow.
However, since 2011, Latinos or Hispanics now start to identify as Native American, the Census shows. Even the New York Times features their article on the cultural change and perspective of Indigenous identity among mestizos, mulattos, and Indigenous people.
Also, Latino comes from the root word Latin which corresponds to the nations that used to form the Roman Empire: Spain, Portugal, Romania, Italy, and France. According to El Boricua, “The word Hispania thus refers to the people and culture of the Iberian peninsula, Spain in particular. The term Hispano (Hispanic) later was used in referring to Spain and its subsequent New World – New Spain, conquered territories which covers most of Latino America.” The White-mestizo society or descendants of Spanish relatives can claim these labels to themselves.
But Latino is not a person who only looks Mexican and speaks Spanish. Many of us come from mixed-Indigenous heritage and some of us are Indigenous, too. For example, Ecuador is home to 30-plus Indigenous nations and a home to 8 million descendants of the Quitu-Shyri and Spanish ancestry. It’s also home to 1 million Euro-Ecuadorians and 1.3 million Afro-Ecuadorians. However, the 8 million Ecuadorian mestizos form part of the rainbow colors of the Indigenous race mixed with the Spanish and the African cultures. In Ecuador, we say “tenemos la pinta ecuatoriana” (we have the Ecuadorian look) because some of us are brown, have black hair, and some, more than others, inherit the Atahualpa face, our last Tawantinsuyu King in 1535. We also dance to merengue and reggaeton, but we blast Indian music and do the round dance, stomp the floor, swing the skirts, and chirp like the Curiquingue and Quinde birds.
Ecuadorians make up the majority of mixed-Indigenous and Indigenous population, among other groups like Afro-Ecuadorians and Euro-Ecuadorians, who re-invent a fusion of all cultures, languages, and religions, yet preserve their Indigenous ethnicity, traditions, and roots simultaneously.
The Idle No More Movement is an excellent example of how Indigenous people in North America unite to stand up and fight for their culture, land, and identity against a people who think it’s okay to walk over Indigenous people with mascot names and Halloween Indian costumes. I also think the Idle No More Movement should include Indigenous people and mixed-Indigenous people from Spanish-speaking nations as an effort to collaborate, unite, and support one Indigenous people across both continents.
Do we call an African-American a Britannic because he or she speaks English? Do we call an Arab an Amish because he or she looks White? Why don’t we call Euro-Americans “mixed” or “mestizos” because they also have Irish, Italian, German, African, and Indigenous blood, some more than others? However, there is no debate about our differences. We come from different nations, backgrounds, religions, cultures, and so forth. But the key point is to co-exist in peace and respect each other. The principle is to not step on people’s sacred space without asking their permission. The Indigenous space has been repeatedly trespassed and disrespected in the Americas.
I can only speak of what I‘ve seen in Ecuador. In Ecuador, the label Mestizo provides an opportunity for Indigenous people to climb the social ladder. In order for them to not be hated, insulted, harmed, put down, ashamed, physically assaulted, and to some extent, massacred in ethnic and cultural genocides, the ethnic label “mestizo” provides a convenient strategy to avoid all of the aforementioned complications. However, Indigenous people should not feel obliged to make the switch from Indigenous to Mestizo because of the shame with their Indigenous identity. Their culture is as beautiful as that of the African-American, European-American and Asian-American.
In Santa Elena, Ecuador, we identify as Indigenous people. We go by “cholo comunero,” and some, more than others, by “Wankavilka” to emphasize their ethnicity. The Ecuadorian government sends us a census that provides three options: White, Black, and Mestizo. We are forced to put mestizo even though in our hearts we know we are Indigenous to our ancestral lands and cultures, but this mislabel affects new generations of youth who start to distance themselves from their Indigenous heritage and encourage outsiders to expropriate our lands because we do not “voluntarily” identify as Indigenous (Original Source in Spanish). Therefore, in this case, the mestizo concept does not equally glorify two cultures, but only the dominant European one. It serves to disenfranchise Indigenous people in Latin America. In a parallel comparison, there are Latinos, (Indigenous Spanish-speaking people from tribal nations in Latin America who migrate to the United States), who do not want to identify as Latinos and Mestizos but are forced to because it’s the only option.
Appropriating a local tribe that is not yours is also NOT the respectful manner to go about this either. However the U.S. census should provide an ethnic label that speaks for Mexican, Central, and South American Indigenous people. This also gives an opportunity for mixed-Indigenous people to learn from their culture via Indigenous groups in United States settings. Because as mixed-Indigenous people from Spanish-speaking nations, we have a right to learn about our Indigenous past that includes everything before 1492. Our nations started way before the colonial contact.
Imagine what would happen if mixed-Indigenous or Indigenous Ecuadorians, Mexicans, Guatemalans, Salvadorans, Peruvians, Bolivians, among other Spanish-speaking nations re-identify with their Indigenous roots. How would that cause a chain reaction in Latin America and how would that redefine our culture, our history, and our thought process?
Santy Quinde Baidal, blogger of The Quinde Journey / Wankavilka Nation (www.squinde.wordpress.com), speaks about his experience of re-identifying with his Wankavilka Comunero Indigenous identity as an Ecuadorian-American citizen in the United States. Thanks to oral tradition and extensive independent research, Mr. Baidal learns about his Indigenous culture, identity, and traditions that stretches back to 12,000 years, to the first people of Santa Elena, Ecuador.
courtesy of The Final Call Newspaper
One-Drop Classification: one people forever united against oppression
Colonial Mexico had the highest numbers of African slaves. Of the over one million casualties during the Mexican war of independence, most of them were Afro-Mexicans. Mexico’s commitment to harbor Black fugitive slaves triggered the Mexican-American war; she lost nearly 50 percent of her territory. After the war, Mexico undeterred, included in her constitution and continued her commitment to harbor fugitive slaves.
Not long ago, Mexican-American TV host and comedian George Lopez was handed his DNA ancestry results by Mariah Carey – after the question was posed as to whether he would fall under the proverbial one-drop (African) racial classifi cation. Lopez’s results showed a 4 percent African blood.
“Texican” actress Eva Longoria’s 3 percent African ancestry surfaced in DNA taken by PBS series Faces of America (Henry Louis Gates, Jr.). And National Geographic’s Genographic Mexican-American reference population attributes a 4 percent African contribution to the “La Raza” pool. The “Mestizo” – the proverbial “La Raza” Mexicano – customarily extols his Indian roots, and laments and or praises his Spanish roots – but rarely is the African part acknowledged.
The period of African slavery in Mexico began following devastation brought about by the inherent diseases of the Europeans, which infected and almost completely wiped out indigenous Mexicans. Having no natural immunity against smallpox, measles, typhoid, venereal diseases and other infectious maladies, natives were victims of ferocious epidemics in 1520, 1548, 1576-1579, and 1595-1596.
It is estimated that when Hernan Cortes arrived in Mexico in 1519, the indigenous population was about 27.6 million inhabitants. By 1605 only 1.7 million indigenous people had survived, a population decrease mulattoes; 15,000 Spaniards, and 80,000 Indians. Gemelli Careri, in his 1698 visit, concluded, “Mexico City contains about 100,00 inhabitants, but the greatest part of them are Blacks and Mulattoes by reason of the vast number of slaves that has been cessation of the slave trade the enslaved population steadily declined. However, the numbers of free Blacks grew and by 1810 comprised 10 percent of the population or roughly 624,000 people.
The African population had a 3 male to 1 female ratio and since children born from Indigenous mothers carried their “free” status, African men married Native women to ensure that their descendants would be born free. According to the Mexican caste system imposed by Spain, the Indigenous population was considered citizens and could not be made slaves. At the bottom of the caste system were the Black slaves. Escaped slaves resorted to establishing settlements or palenques in Mexico’s inaccessible mountains to preserve their freedom.
In 1591 Viceroy Don Luis de Velasco reported the existence of a group of cimarrones (Maroons) who had resided for the previous 30 years on a mountain called Coyula who “live as if they were actually in Guinea.” He referred to the famous case of Yanga, the Muslim maroon leader, who after fi ghting 30 years against the Spanish crown signed a peace accord and founded San Lorenzo de Los Negros, establishing the fi rst “freedom enclave” in Mexico.
Mule driving, one of the lowest and frowned upon occupations, was almost completely carried out by Blacks and Afro-Indians. Mule drivers were plentiful in Mexico, thanks in part to the lack of roads for carts and carriages. Although considered unpleasant rowdies by the rich, Muleteers were welcomed in rural villages for bringing the latest news, songs and the hottest jokes about authority fi gures; moreover, mule trains traditionally carried contraband. From this occupation came many a fi ghter for Mexico in the war with Spain, including Vicente Guerrero, the Afro-Indian who became the second President of Mexico. Guerrero was a descendant of enslaved Africans brought to Mexico during colonial times. He was raised in the mountain town of Tixtla and spoke many indigenous languages.
It is estimated that by the end of the Spanish domination, the Mestizo population was 40 percent, which included a large number of Afro-Mestizos.
Who is the Mestizo?
One scholar declared the Mestizos were the “revolutionary class.” McLaughlin and Rodriguez in “Forging of the Cosmic Race” identifi ed the mestizo as the “arch-typical Mexican.” These statements, however, really fail to defi ne the Mestizo. The word Mestizo is applied to mixed races, people who are darker than White.
During the war of independence 1810- 1821, about 30 to 40 percent of mixed race Mexicans had African in their mix and were more likely to be militant. The Afro-Mestizo was placed between a rock and a hard place—and his inclination toward militancy came from the racist laws limiting jobs, places of residence, and marriage that set Blacks apart. Moreover, slavery was reserved for Africans only, be they mixed or pure. Census data reveal that “from Southern Talisco to Southern Michoacán and through the sugar plantations near Cuautla in Morelos 37% of the population was Afro-Mexican in 1810. The Huasteca uphill region behind the port of Tampico, census data shows the Tampico coast as much as 78 percent Afro Mexican, and in the highlands only 17 percent, the other 83 percent was comprised of Huasteca Indians. West of the Cuautla Valley, 50 percent of the population was Afro Mexican” and it was there that the longest battle of the independence war was fought.
Emiliano Zapata, the Afro-Indian revolutionary hails from the Cuautla Valley. Rarely seen or acknowledged today, the current estimated Afro-Mexican population in Mexico is 450,000.
Another indication of the importance of the Afro-Mexican during the war of independence is the decree abolishing slavery by priest Miguel Hidalgo, Mexico’s Founding Father, as enticement to attract Afro-Mexicans to the fighting ranks. Likewise, the vital importance of the Afro-Mexican soldier was evident in an incident that took place when Blacks were disgruntled because Jose Maria Morelos, a mestizo himself and Founding Father of Mexico, refused to recognize General Rayon’s appointment on their behalf. “Disappointed and despondent, they retired to El Veladero and made plans to incite the Negroes in Morelos’s army to slaughter the Whites. When Morelos heard about this activity, he struck hard and fast. Taking a small escort with him, he rushed southward to ‘remove the cancer,’ crushed the revolt before it could be launched, and caught and shot the leaders.”
The Afro-Mestizo was predominant in Morelos’ independence army, which was another reason for targeting, otherwise Morelos would not have viewed this threat as a cancer.
The Mexican war of independence claimed as many as one million lives, many of them Afro-Mexicans. The tragic massacre that took place during Mexico’s war of independence is vividly recounted by one scholar: “The Creole officers, faithful to their gachipin (Spaniard) generals, were willing to massacre the insurgents, and the mestizos and mulattos who formed the rank and file of the army were blindly obedient … when they met the Spaniards in battle, some of them tried to put the Spanish cannon out of action by throwing sombreros over their mouths.”
Where is the Afro-Mexican? Hundreds of thousands died in the war of independence fertilizing Mexican soil, the rest has been absorbed in the genetic pool of the Mexican mestizo.
By 1827 hardly any “Negro” slaves were left in Mexico. The whole slavery issue would have been history were it not for the fact that Texas, in the Northern part of Mexico, was being encroached upon by slave holding Anglos who brought slaves with them to settle unoccupied areas of Texas.
Mexico’s effort to end slavery throughout her territory met with opposition and by the fall of 1825 almost one out of five persons in Texas was a “Negro” slave.
Since Mexico was hospitable to any fugitive slave, and hundreds had fled to Mexican territories, the U.S. proposed a Treaty of Amity, Commerce and Navigation between Mexico and the United States to stop the trend. Both parties signed the treaty on July 10, 1826 – however it had to be ratified by the Mexican Congress and was met with staunch opposition. The Committee of Foreign Relations of the Mexican Chamber of Deputies, had a major problem with Article 33 of the proposed treaty, which dealt with fugitive slaves. The Committee ultimately recommended its rejection.
After the Mexican American War wherein Mexico lost nearly 50 percent of its territory, fugitive slaves still crossed the border seeking refuge from the merciless oppression of their masters. Mexico once more reaffirmed her protection of fugitive slaves recommitting in the Constitution of 1857 to freedom for all fugitive slaves who set foot on Mexican soil.
Emiliano Zapata appears in this undated photo. Zapata is widely renowned as the voice of the Mexican Revolution, which began in 1910 because peasants were angry with the government for stealing their land. Photo: AP/Wide World photos
Mexico also constitutionally banned any intentional extradition treaty-covering individuals who had been slaves.
When in 1857 James Frisby, a “Negro” seaman jumped ship in Veracruz and claimed to have been a slave in New Orleans “whose master had signed him on board the Metacomet as crew;” the port captain refused to turn him over. U.S. Representative in Mexico John Forsyth resorted to arm-twisting Mexico even to the point of declaring that Mexico extended a privilege to the seaman because of the “ebony color of his skin.” Forsyth berated Mexico for letting a Black get away with what those of “pure white blood … the master blood of the earth … blood which has conquered and civilized and Christianized the world.” Forsyth in his rage declared, “If Mexico is so deeply imbued with the mania of negrophilism [love of “Negroes”] … imprisoning our White Citizens and making free our Slaves, as fast as they put foot on Mexican soil, cannot long endure consistently with peace and harmony between the two countries.” Forsyth failed to intimidate Mexico, and she remained adamant in her defense and protection of fugitive Black slaves.
Despite all threats and the loss of 50 percent of its territory, Mexicans continued to extend a helping hand to escaping Black slaves from the United States, the imperialist power to the North.
Continuing that tradition, this new millennium shall witness the Unity and Oneness of Blacks and Mexicans in order to strengthen our common goal towards freedom, justice and equality under the Creator of the heavens and the earth, our true and common origin.
(Diogenes Muhammad is a “Latino” Muslim pioneer and a contributing writer for The Final Call and its forerunner Muhammad Speaks.)
[Ratified: November 18, 1865 by 3/4 of the Several States]
THE THIRTEENTH AMENDMENT
TO
CONSTITUTION OF THE UNITED STATES
[Ratified: November 18, 1865 by 3/4 of the Several States]
The Following is the Language
“The Ordinance of 1787”
Thus referred to:
“Article 6 – There shall be neither Slavery nor Involuntary Servitude in the said Territory, otherwise
than in the punishment of crimes, where of the part shall have been duly convicted”.
The Thirteenth Amendment
Of
The COnstitution of the United States
Ratified: November 18, 1865 by 3/4 of the Several States
SECTION 1 – All persons shall have the right peaceably to assemble and Worship God according to the dictates of their own conscience.
SECTION 2 – The use of the Public Press shall not be obstructed; but criminal publication made in one State against the lawful institutions of another State shall not be allowed.
SECTION 3 – The right of citizens to free and lawful speech in public Assemblies shall not be denied. Access of citizens to the ballot box shall not be Obstructed either by Civil or Military Power. The Military shall always be subordinate to the existing Judicial authority over citizens. The privilege of the writ of Habeas Corpus shall never be suspended in the presence of the judicial Authority.
SECTION 4 – The Militia of a State or of the United States shall not be Employed to invade the lawful rights of the people of any of the several States; but the United States shall not be hereby deprived of the right and power to defend and protect its property and rights within the limits of any of the States.
SECTION 5 — Persons held to Service or Labor for life, in any State under the Laws thereof, may be taken finto any Territory of the United States south of north latitude 36 degrees 30′, and the right to such Service or Labor shall not be incipaired therelby, and the Territorial Legislatura thereof shall have the exclusive right to make and shall make all needful rules and regulations for the protection of such right and also for the protection of such Persons; but Congress or any Territorial Legislatura shall not have power to impair or abolish such right of Service in the Said Territory while in a Terri-torial conditionwithout the consent of all the States, south of Said Latitude, which maintain such Ser-vice.
SECTION 6 — Involuntaty Servitude, except for exime, shall not be permanently established within the District set apart for the Seat of Government of the United States; but the right of sojourn in such District, with Persons held to Service or Labor for life, shall not be denied.
SECTION 7 — When any territory of the United States south of north latitude 36 degrees 30′ shall have a population equal to the Ratio of Representation for one Member of Congress, and the people thereof shall have formad a Constitution for a Republican Form of Govermnent, it shall be adniitted as a State hato the Union, on an equal footing with the other States; and the people may, in such Con-stitution, either prohiba or sustain the right to Invohmtary Labor or Service, and alter or amend the Com titution at their wilL
SECTION 8 — The present right of representation in Section 2, Article 1, of this Constitution, shall not be altered without the consent of all the States maintaining the right to Involuntary Service or Labor south of Latitude 36 degrees 30′, but nothing in this Constitution or its Amendments shall be construed to deprive any State south of Said Latitude 36 degrees 301 of the right of Abolishing Involuntary Servitude at its will.
SECTION 9 — The regulation and control of the right to Labor or Service in any of the States south of Latitude 36 degrees 30′ is hereby recognized to be eiclusively the right of each State within its own fimits; and this Constitution shall not be altered or amended to impair this right of each State without its consent; Provided, This Article shall not be construed to absolve the United States from vende ring assistance to suppress 1nsurrections or Dornestic Violence, when called upon by any State, as provided in section 4, Article 4, of this Constitution.
SECTION 10 — No State shall pass any law in any way interfe ring with or obstructing the recover of Fugitives from Justice, or from Labor or Service, or any Law of Congress made under Article 4, Section 2, of this Constitution; and all laws in violation of this Section may, on complaint made by any person or State, be declared void by the Supreme Court of the United States.
SECTION 11 — As a right of conity between the several States south of latitude 36 degrees 30′ the right of transit with Persons heId to Involuntary Labor or Service from one State to another shall not be obstructed, but such Persons shall not be brought into the States north of said Latitude.
SECTION 12 — The traffic im Slaves with Africa is hereby forever prohibited on pain of death and the forfeiture of al the rights and property of pe rsons engaged therein; and the descendants of Afri-caras shall not be citizens.
SECTION 13 — Aiieged Fugitives from Labor or Service, on request, shall have a Trial by Jury be-fore being retrimed.
SECTION 14 — All alleged Fugitives charged with exime comnitted in violation of the law of a State shall have 11w right of Trial by Jury, and if such Pe rs on claims to be a citizen of another State, shall have a right of appeal or of a writ of error to the Supreme Court of the United States.
SECTION 15 — All acts of any inhabitant of the United States tending to incite Persons held to Ser-vice or Labor to Insurrection or acts of Domes tic Violence, or to abscond, are hereby prohibited and declared to be a penal offense; and all the Courts of the United States shall be open to suppress and punish such offenses at the suit of any citizen of the United States or the suit of any “State”.
SECTION 16 — All conspiracies in any State to intelfere with lawful rights in any other State, or against the United Miles, shall be suppressed; and no State, or the people thereof shall withdraw from ibis Union without the consent of three-fourth,s of all the States, expressed by an Atnendment proposed and ratified in the manner provided in Article 5 °filie Constitution.
SECTION 17 — Whenever any State wherein Involuntary Servitude is recognized or allowed shall pro-pose lo abolish such Servitude, and shall apply for Pecuniary assistance therein, the Congress may, in its discretion, grant such relief not exceeding one hundred dollars for each person liberated Bul, Con-gress shall not propose such Abolishment or relief to any State.
Congress may assist Free Persons of African decent to ernigraie and coionize Africa.
SECTION 18 — Duties on Imports may be imposed for Revenue; but shall not be excessive or pro-hibitory in amount.
SECTION 19 — When all of the several States shall have Abolished Slavery, then and thenafter Slavery or Involuntary Servitude, except as a punishment for crin te, shall never be established or tolerated in any o f the States or Territories of the United States, and they Atan be forever Free.
SECTION 20 — The provisions of this Article relating to Involuntary Labor or Servitude shall not be altered without the consent of all the States maintaining such Servitude.
Submitted by:mail@sultanatesofmurakush.com
1178 CE Muslims Sail to America
A Chinese source known as the Sung Document records that Muslim sailors journeyed to a land known as Mu-Lan-Pi, which some Muslims identify as the American continent. This document is mentioned in the publication The Khotan Amirs, 1933.
1300s CE African Muslims to the New World
According to some scholars, Abu Bakari, a king of the Muslim state of Mali in West Africa, initiated a series of sea voyages to North America beginning in the early 1300s. About the same time, Mandingo Muslims from Mali and other parts of West Africa are said to have arrived in the Gulf of Mexico and traveled up the Mississippi River to explore the interior of the North American continent.
1530 CE African Slaves Begin to Arrive
During three centuries of slave trade, over 10 million Africans were forcibly brought to the shores of Cuba, Mexico, South and North America. Most were taken from West African peoples known as Fulas, Fula Jallon, Fula Toro, and Massina. Scholars estimate that 10-50 percent of these slaves were Muslim, although most were prevented from practicing their religion.
1539 CE Spanish Explorers and Spanish Refugees
Estevanico of Azamor, a Moroccan Muslim, arrived in Florida with the expedition of Panfilo de Narvaez in 1527. He stayed in America and joined expeditions across the continent to Arizona and New Mexico. By the late 1700s, historical records indicated the presence of Spanish “Moors” living in South Carolina, many of whom were expelled from their homeland by edict of the Spanish Crown.
1807 CE Omar Ibn Said Arrives as a Slave in Charleston
Omar ibn Said was brought to Charleston, South Carolina, as a slave in 1807. He ran away to escape the hard labor, but was caught and imprisoned in North Carolina. Writing in unreadable script and speaking a language no one understood, he was branded a lunatic. Governor John Owen bought him and gave him minimal work, granting him a small house on the Owen estate and treating him more like a friend of the family. Said wrote an autobiography and maintained contact with other Muslims in the area.
1807 CE Freed Muslim Slave Remains in America
Yarrow Mamout, an African Muslim slave, was set free in Washington, D.C. He remained in the United States and became an early shareholder in the Columbia bank, the second chartered bank in the country. Today, portraits of Mamout hang in the Historical Society of Pennsylvania and the Georgetown Public Library in Washington. He is said to have lived to be 128 years old.
1856 CE Muslim Trains Camels for U.S. Army
The United States cavalry hired a Muslim named Hajji Ali (nicknamed “Hi Jolly” in a mispronunciation) to experiment with raising camels in the Arizona desert.
1893 CE American Islamic Propaganda Movement Founded
Mohammed Alexander Russell Webb, one of the first Americans to embrace Islam, founded the American Islamic Propaganda Movement. At the 1893 Parliament of the World’s Religions in Chicago, he lectured on “The Spirit of Islam” and “The Influence of Islam on Social Conditions.”
1900 CE First Recorded Muslim Prayers Held
Muslims of Arab descent in Ross, North Dakota, gathered in homes for the first recorded communal prayers held by American Muslims.
1908 CE Muslim Immigrants from the Ottoman Empire
Turks, Albanians, Kurds and Arabs from the provinces of Syria, Lebanon, Jordan and other areas of the Ottoman Empire began to settle in North America in significant numbers.
1913 CE Moorish Science Temple of America
Timothy Drew (Noble Drew Ali), reportedly commissioned by the sultan of Morocco to teach Islam to African-Americans, established a Moorish Science Temple in Newark, New Jersey. He traveled around the country, encouraging African Americans to explore the Asiatic (Moorish) roots of African culture, to respect all divine prophets, to live virtuously and to work for racial equality.
1915 CE Albanian Muslim Mosque in Maine
Albanian Muslims built a mosque in Biddeford, Maine and established an Islamic association. In 1919, they established another mosque in Waterbury, Connecticut. These were among the first Islamic associations in America.
1920 CE Mosque Built in Ross, North Dakota
The small Muslim community in Ross, North Dakota built a mosque for prayer gatherings. Due to the rapid assimilation of this small community, by 1948 the building was abandoned and later demolished.
1920 CE Red Crescent Society in Detroit
Muslims in Detroit established The Red Crescent Society, a Muslim charity modeled after the International Red Cross.
1921 CE Ahmadiyya Movement in Islam Comes to America
Dr. Mufti Muhammad Sadiq founded a branch of the Ahmadiyya Movement in Islam in Chicago, Illinois. Preaching racial equality, this missionary movement was most successful in leading many African Americans to this sectarian form of Islam, until the ideology of the Nation of Islam began to exert more influence. Sadiq published a periodical called Moslem Sunrise.
1922 CE Tatars Build Mosque
Polish-speaking Tatar Muslims formed a congregation in 1917. It was led by Sam Rafelowich, son of a Polish imam. In 1922 the community built a mosque in Brooklyn; this mosque is still in use. The Tatars formed an association in New York called the American Mohammedan Society.
1923 CE A Mosque in Highland Park, Michigan
An Arabic-speaking employee of the Ford Motor Company built a mosque in Highland Park, Michigan. The mosque closed a few years later.
1925 CE A Mosque in Michigan City, Indiana
Records indicate the establishment of a mosque in Michigan City, Indiana.
1926 CE Universal Islamic Society in Detroit
Duse Muhammad Ali established an organization called the Universal Islamic Society in Detroit, Michigan. Its motto was “One God, One Aim, One Destiny.”Ali had significant influence on Marcus Garvey and his movement of African unity.
1928 CE Moorish Science Temple of America
The Moorish Science movement of Noble Drew Ali became an incorporated religious organization in Chicago, Illinois. Members convened the first Moorish National Convention to encourage the economic independence of African-American businesses, participation in politics and the development of programs for poor inner-city youth.
1929 CE Noble Drew Ali Dies
Prior to the death of Noble Drew Ali, members of the Moorish Science Temple were involved in small confrontations with the white community as well as an internal leadership dispute. One challenger to the leadership of Noble Drew Ali was killed, and the police arrested and later released Ali. Ali died mysteriously a few weeks later, and members of the community were divided as to whether his successor would be considered a reincarnation of the fallen leader or not. Mainstream leadership passed to C. Kirkman Bey.
1930 CE The First Muslim Mosque in Pittsburgh
African-American Muslims establish the First Muslim Mosque in Pittsburgh, Pennsylvania.
1933 CE The Nation of Islam
Wallace Ford (Fard Muhammad), the mystical figure who introduced the philosophy of the Nation of Islam disappeared in 1933 and was succeeded by Elijah Poole (Elijah Muhammad). Under Elijah Muhammad, the movement developed into a strong ethnic organization combatting white racism and converting African-Americans to a lifestyle influenced by Islam. A high percentage of African-American Muslims today were first exposed to Islam through the Nation. The activist Al Hajj Malik al-Shabazz (Malcolm X) and the boxer Muhammad Ali were two early adherents of this movement who later embraced orthodox Islam.
1934 CE The Mother Mosque of America
The Lebanese community in Cedar Rapids, Iowa opened its first mosque. This community claims its place of worship to be the oldest U.S. mosque, designed and built for Muslim worship, still in use today.
1939 CE The Islamic Mission Society
Sheikh Dawood Ahmed Faisal, a Muslim from the West Indies, founded the Islamic Mission Society in New York and began publication of a magazine, Muslim Sunrise.
1947 CE The Muslim Mosque of Sacramento
The oldest mosque on the West Coast, the Muslim Mosque of Sacramento, was established by Muslims from the Indian subcontinent in the same year that their homeland was partitioned. Many of these immigrant Muslims originally came via ship to the port cities of Vancouver and San Francisco in the early 1900s, and later migrated to the Sacramento Valley in search of farming opportunities. Today, the Muslim Mosque of Sacramento is one of a number of thriving mosques in the city, with a diverse membership.
1948 CE Ahmadiyya National Convention
The Ahmadiyya Movement in Islam gathered delegates from its major mission centers in Chicago, Cleveland, Kansas City, Washington, D.C., and Pittsburgh and from smaller communities to elect national secretaries, set up educational and social work programs and organize for the propagation of the faith.
1950 CE Ahmadiyya Headquarters Moves to Washington
Khalil Nasir, national leader of the Ahmadiyya Movement in Islam, moved the headquarters of the organization to the American Fazl Mosque on Leroy Place in NW Washington, DC. In 1994, it relocated to its present headquarters in Masjid Bait ur-Rahman in Silver Spring, Maryland.
1952 CE U.S. Military Recognizes Islam
Muslims in the Armed Services successfully sued to be allowed to identify themselves as “Muslim.” They had previously been denied this right because Islam was not recognized as a legitimate religion by the U.S. Military.
1953 CE The Federation of Islamic Associations
The first national Muslim conference was held in Cedar Rapids, Iowa, in 1952, with four hundred Muslims from around North America in attendance. This conferenece laid the groundwork for the Federation of Islamic Associations of the United States and Canada (FIA) which was founded in July of 1953. The federation’s leaders were American-born, educated, professionally successful and military veterans: Abdullah Igram of the Cedar Rapids community served as the first President. The FIA emphasized education and public relations for the Muslim communities and provided a sense of identity and community for American Muslims.
c. 1955 CE State Street Masjid
Sheikh Dawood Ahmed Faisal established the State Street Masjid in New York City to serve the African-American Muslim community. The Dar ul-Islam movement was born from this masjid, and it is still an active Muslim center today.
1957 CE President Eisenhower Dedicates Islamic Center
The Islamic Center of Washington, D.C., was conceived and built by Abraham Joseph Essa Howar, an immigrant from Jerusalem, with significant assistance from the local diplomatic community. Several predominantly Muslim countries contributed to the effort. President Dwight D. Eisenhower dedicated the Center, citing the “strong bond of friendship with Islamic nations” the United States has enjoyed and the multitude of Muslim contributions to American society.
1962 CE Muhammad Speaks
The newspaper Muhammad Speaks became the largest minority weekly publication in the country, reaching 800,000 readers at its peak. It began as the voice of the Nation of Islam, but as a part of the transition away from the Nation, the newspaper changed names, first to Bilalian News, later to The A.M. Journal. This publication is now known as The Muslim Journal.
1962 CE Islam is Constitutionally Protected “Religion”
In the case of Fulwood v. Clemmer, concerning religious services for Muslims in prison, the U.S. District Court for the District of Columbia determined that Islam qualifies for constitutional protection since it meets the court’s definition of religion as “theistic” (involving a belief in a supreme being) and of “ultimate concern” to the believer’s life. In its decision, the court ordered prisons to provide facilities for religious services to Muslims just as to Protestant, Catholic, and Jewish inmates.
1963 CE First Dar ul-Islam Movement
African-American converts to Islam sought to create an alternative Islamic community in New York City where they could live out their ideals and participate in the militant black challenge to the white establishment. This first attempt broke apart after 1965, but was reorganized in 1967.
1963 CE The Islamic Center of America in Detroit, Michigan
The Shi’i community of Dearborn, Michigan, built the first Shi’i mosque in North America, the Islamic Center of America, on Joy Road in Detroit. The shaykh, Imam Mohammad Jawad Chirri, solicited funds from Jamal Abdul Nasser, then president of Egypt and a Sunni Muslim, for the mosque’s construction. Previously, this community had worshipped in Sunni mosques and had maintained a separate identity through social functions.
1963 CE Muslim Students Association
The Muslim Students Association (MSA) was organized to assist foreign Muslim students in American colleges. The MSA now has branches at more than 100 colleges nationwide. As the generations of students graduated and settled in the U.S. the MSA gave birth to the Islamic Medical Association (IMA) and the Association of Muslim Social Scientists (AMSS) in the 1970s, and to the Islamic Society of North America in 1982.
1964 CE The Islamic Center of New England
The immigrant Muslim community that had grown up for two generations around the Fore River Shipyard in Quincy, Massachusetts, built the first mosque in New England. The Islamic Center of New England continues to be a focal point for Muslim life in the region, providing leadership in a regional association of the dozens of Islamic centers established since.
1965 CE Assassination of Malcolm X
Malcolm X, who had spoken out against the racial teachings of the Nation of Islam and embraced the broader multiethnic teachings of orthodox Islam, was killed as he delivered a speech in Harlem. At the time of his death, he was known as Al Hajj Malik al-Shabazz.
1965 CE Immigration and Nationality Act
This act ended the quota system, enacted in 1924, which had virtually halted immigration from Asia to the United States for over forty years, and placed significant limitations on immigrants from non-European countries. Following 1965, growing numbers of immigrants settled in America; many were Muslim.
1967 CE Indian Muslims Organize
Immigrant Muslims from India organized the Consultative Committee of Indian Muslims in order to make the American public aware of the plight of Muslims in India. The Committee was active within the MSA for several years, before its main functions were assumed by ICNA and relief committees of ISNA.
1967 CE Dar ul-Islam Movement Begins Again
African-American Muslims broke away from the State Street Mosque and established their own center in Brooklyn, under the leadership of Imam Yahya Abdul-Kareem. After a clash with FBI officials who desecrated the mosque, the brotherhood committed itself to building a national Dar ul-Islam federation of Sunni Muslim family communities.
1968 CE Formation of Hanafi Movement
The Hanafi Madhhab Center was founded in New York by Hamas Abdul Khaalis, and later moved to Washington, D.C. At one point, the movement had over 1,000 members. In 1977, Khaalis and some followers seized three buildings in Washington and held hostages for more than a day. Khaalis is now in prison. This violent outbreak marked a crisis in American Muslim history.
1968 CE First North American Jamat Khana
Immigrant Nizari Ismailis established the first Jamat Khana (house of congregation) in the United States.
1970 CE Formation of Ansaru Allah
Isa Muhammad, a former member of the Nation of Islam dissatisfied with the leadership of Elijah Muhammad and with Noble Drew Ali’s Moorish Science Temple, created a new black religious sect called Ansaru Allah (“helpers of God”) in Brooklyn, New York.
c. 1970 CE Dar ul-Islam Begins Expansion
After moving to the new Ya-Sin mosque in Brooklyn, the Dar ul-Islam movement organized ministries of Propagation, Defense, Information, Culture, Education, Health and Welfare, and Protocol. By the mid-1970s, over 31 mosque-based communities were joined by a contract of allegiance; they encouraged the practice of traditional Islam among African Americans in the United States. In the early 1980s, Imam Yahya Abdul-Kareem declared that the Dar ul-Islam would now be part of an international Sufi community under the leadership of Shaykh Mubarik Ali Jilani Hashmi; those who follow Jilani are now Sufis.
1971 CE Islamic Circle of North America
A group of South Asian immigrant Muslims created the Islamic Circle of North America in order to propagate Islam in the United States. ICNA produces educational materials and organizes annual conferences to discuss issues facing the American Muslim community.
1971 CE Bawa Muhaiyaddeen Fellowship
Sri Lankan Sufi teacher Bawa Muhaiyaddeen established the Bawa Muhaiyaddeen Fellowship in Philadelphia. His followers, from a variety of religious and non-religious, American and immigrant backgrounds, initially did not identify themselves as a “Muslim” community. The Fellowship has since developed into a thriving community with a stronger Islamic orientation.
1970s CE Muslim Professional Associations
The Association of Muslim Scientists and Engineers was formed in 1971, and the Association of Muslim Social Scientists in 1972.
1973 CE Shi’ah Mission to Georgia
Yasin al-Jibouri established the Islamic Society of Georgia, which grew primarily through the conversion of African Americans. The Society distributed literature from Iran, East Africa, India and Pakistan which presented Islamic doctrine from a Shi’i perspective.
1975 CE Elijah Muhammad Dies
Elijah Muhammad, leader of the Nation of Islam movement, dies and is succeeded by his son, Warith Deen Mohammed. Warith Deen disbanded the Nation of Islam as an organization and led a majority of its followers toward more universal and orthodox Islam. Imam W. Deen Mohammed is now considered one of the most influential Muslims in the United States.
1977 CE Islamic Coordinating Council of North America
The Muslim World League, an organization established in Makkah in 1962 to foster the cause of Islam around the world, has provided dozens of trained imams for mosques in the United States. The League sponsored the first Islamic Conference of North America in Newark, New Jersey, drawing Muslim representatives from around the United States, who then organized the Islamic Coordinating Council of North America. This Council encourages cooperation and coordination between various communities and national organizations of Muslims.
1977 CE Farrakhan Begins Reorganization of the Nation of Islam
Two years after the death of Elijah Muhammad, Minister Louis Farrakhan officially declared his intention to reestablish the Nation of Islam “on the platform of the Honorable Elijah Muhammad.” Farrakhan rejected the reforms of Warith Deen Mohammed, reaffirming the leadership of Elijah Muhammad as Prophet and insisting that continuing white racism still required the strength of an African-American Islam.
1977 CE Chicago Muslims Initiate Educational Publications Project
The Muslim Community Center of Chicago received support from King Abdulaziz University to develop a full educational curriculum in Islamic studies, including graded levels of textbooks, workbooks, activities, teachers manuals and other aids. Kazi Publications distributes these materials to Islamic centers around the country.
1981 CE International Institute of Islamic Thought
This independent research institute was founded to revive and promote Islamic scholarship. The Institute publishes college-level books offering Islamic perspectives on various academic disciplines, conducts seminars, workshops and conventions and raises funds for fellowships in Islamic studies research.
1982 CE International Islamic Society of Virginia
Yasin al-Jibouri, who initiated the Shi’i mission in Georgia, established the International Islamic Society of Virginia. The organization’s goal is to provide with reading materials about Islam.
1982 CE United Muslims of America
Muslims in the San Francisco Bay Area formed an organization called United Muslims of America, said to be the first American Muslim organization designed specifically for political action. Chapters later grew in Sacramento and Los Angeles.
1982 CE Islamic Society of North America
The Islamic Society of North America (ISNA) was established in Plainfield, Indiana, by the leaders of Islamic student and professional organizations. ISNA is an umbrella organization for many active Islamic groups, including educational, youth, professional, community and relief organizations.
c. 1985 CE All-American Political Action Committee
The Islamic Society of Greater Houston formed the All-American Political Action Committee (AAMPAC) in order to encourage Muslims to speak out on political issues of concern to them. By 1987, AAMPAC reported 2,000 members in Houston and Dallas.
1986 CE Moorish Americans Celebrate Centennial
Members of the Moorish Science Temple celebrated the centennial of the birth of Noble Drew Ali. On this occasion, the governors of several states issued official proclamations recognizing the spiritual and ethical contributions of the Moorish community and its promotion of good citizenship.
1986 CE Bawa Muhaiyaddeen Dies
When Shaykh Bawa Muhaiyaddeen died, he did not designate a new shaykh for the Bawa Muhaiyaddeen Fellowship but left two imams in charge of Friday prayers. The Fellowship maintained its organizational structure and conduct. Books and videotaped discourses of the Shaykh are important to the community; classes in the Qur’an and Arabic and the practice of Islamic rituals serve to sustain those who affirm a Muslim identity.
1988 CE Muslim Public Affairs Council
The Islamic Center of Southern California formed the Muslim Political Action Committee, later named the Muslim Public Affairs Council. The Council’s aim is to articulate Muslim perspectives on political issues, to inform legislators about Islam, to speak out against discrimination, and to encourage greater political participation by Muslims in the American system.
1989 CE Georgia Jamat Khana Opens
The Ismaili community opened a major religious and cultural center in Atlanta, Georgia.
1990 CE American Muslim Council
Muslims organized a conference called “Muslims Against Apartheid” for Muslims in the United States to discuss their opposition to apartheid in South Africa. Out of this conference grew the American Muslim Council, based in Washington, D.C., which seeks to raise the political consciousness of the Muslim community and to speak out against instances of discrimination against Muslims.
1990 CE Murder of Rashad Khalifa
Rashad Khalifa, an Egyptian-born scientist who served as imam of Masjid Tucson for eleven years, was murdered in the mosque before morning prayers. Khalifa was a controversial author who used computer analysis of the Qur’an to establish its miraculous character, to determine the date of the end of the world, and to prove he was the messenger of God to the New World. He condemned Muslims who followed the Hadith and Sunnah and practiced what he considered the “worship of Muhammad.” Khalifa’s followers are known as United Submitters International, who publish a journal called Submitters Perspective.
1990 CE Proclamation of the City of Savannah, Georgia
The city council of Savannah, Georgia, issued a proclamation in recognition of Islam and support for the Muslim community, stating, “Al-Islam has been a vital part of the development of the United States of America, and the City of Savannah, Georgia, by promoting obedience to the established laws of the land and by encouraging abstinence from all that is wrong.” It concluded by proclaiming that: “The religion of Al-Islam be given equal acknowledgment and recognition as the other religious bodies of our great city. ”
1991 CE The Islamic Cultural Center of New York
Sponsored by diplomatic delegations from a number of predominantly Muslim countries, the Islamic Cultural Center of New York has become a monumental sign of the Muslim presence in New York City. Designed by Skidmore, Owings and Merrill, this house of worship “for the 21st century” sits at the corner of Third Ave. and 96th St. on Manhattan’s Upper East Side.
1991 CE Muslim Prayer in the U.S. House of Representatives
On June 25, 1991 Imam Siraj Wahhaj, spiritual leader of the Masjid al-Taqwa community in Brooklyn, New York, offered the opening prayer in the United States House of Representatives, becoming the first Muslim ever to do so.
1991 CE Islamic Prison Foundation
Several Muslim organizations joined together to form an educational foundation for prisoners. This Foundation provides information about Islam to inmates in the nation’s prisons upon request.
1991 CE Muslim Members of the Military
The Muslim Members of the Military (MMM) held their first “Unity in Uniform” conference to address the absence of Muslim chaplains in the armed services. There are over 5,000 Muslims currently on active duty in the United States military.
1991 CE Muslim Mayor Elected in Texas
Charles Bilal became the first Muslim mayor in the United States when he was elected to govern the town of Kountze, Texas.
1992 CE Muslim Prayer in the U.S. Senate
Imam W. Deen Mohammed, African-American spiritual leader and respected Islamic spokesperson, opened the U.S. Senate with a prayer for guidance on February 6, 1992. This was the first time the invocation at the opening of Senate business was offered by a Muslim.
1992 CE Muslims Offer Invocations in California Legislature
On April 2, 1992, California recognized the significant presence of Muslims in the state by inviting two Muslim imams to lead the opening prayers. Imam Dawud Abdus Salaam delivered the invocation for the Senate and Imam Enrique A. Rasheed did the same for the State Assembly.
1993 CE Muslim Organizations Coordinate Ramadan Observances
The Islamic Shura Council of North America, composed of ISNA, ICNA, the Ministry of Imam W. Deen Mohammed, and the community under the leadership of Imam Jamil al-Amin, agreed on procedures for the sighting of the moon which begins and ends the holy month of Ramadan. This was an important step in American Muslim unity, as many ethnic Islamic centers still look to authorities in their home countries for official guidance on such matters.
1995 CE First Jamat Khana Built in the United States
Groundbreaking Ceremonies for the first Jamat Khana built as such in the United States were held in Dallas, Texas. Gary Blanscet, Mayor of Carrolton, was in attendance.
1996 CE Breaking of the Fast on Capitol Hill
On the evening of February 13, 1996, during the month of Ramadan, the daily fast was broken in the Hart Senate Office Building. This observance was followed by prayers. Muslims from around the U.S. were in attendance, as were four members of Congress. Among those in attendance was Connecticut Senator Joseph Lieberman, an Orthodox Jew.
1996 CE First Eid at White House
On February 20, 1996, Hillary Rodham Clinton greeted an American Muslim delegation at the White House on the occasion of the feast of Eid al-Fitr at the end of the month of Ramadan.
2001 CE World Trade Center & Pentagon Attacks
On September 11, 2001, terrorists attacked the World Trade Center and Pentagon in the United States, claiming to act in the name of Islam. The attack, for which the militant organization Al Qaeda, under the leadership of Osama bin Laden, took responsibility, sparked enormous change and challenges for relations between Muslims and non-Muslims within the U.S. and throughout the globe. The events of 9/11 forced all Americans, Muslim and non-Muslim alike, to consider Islam in global and local contexts, challenging and questioning what it meant to be Muslim when the faith had been so loudly and violently usurped by a small minority of Muslims whose views are considered by most Muslims to be extreme, and for many, un-Islamic. The 9/11 attacks caused many non-Muslim Americans to be suddenly suspicious of all Muslims, causing reactions that targeted Muslims – from hate crimes that targeted Muslims and mosques, to increased surveillance of Muslim communities by federal authorities. In turn, American Muslims began to actively and collectively reach out to fellow Americans to correct misperceptions about Islam that were instigated by the 9/11 attacks, opening the doors of their mosques and cultural centers to all to show to Americans the peace-loving understanding of Islam to which a vast majority of Muslims worldwide adhere.
2003 CE The Buffalo Six
Six Yemeni-Americans in Buffalo, NY, known as the “Buffalo Six” and “Lackawanna Six,” were convicted of supporting al-Qaeda materially. They were all American citizens who had received training by Al Qaeda in Afghanistan in 2001. All six eventually pleaded guilty to “providing material support to a […] terrorist organization” and received prison sentences, the longest of which was for ten years.
2006 CE Keith Ellison becomes first Muslim elected to Congress
In 2006, Keith Ellison of Minnesota became the first Muslim elected to Congress. He was sworn into the U.S. House of Representatives on the Qur’an that was owned by Thomas Jefferson. Ellison was re-elected in 2010.
2008 CE Film: “Obsession: Radical Islam’s War Against the West”
Millions of copies of this 2005 film, which depicts a perceived threat of radical Islam to the West, were distributed for free prior to 2008 presidential elections, targeting swing states in particular. While the controversial film itself was criticized for construing Islam in a monolithically negative manner, many questioned the political implications of its wide and intentional distribution.
2008 CE America’s First Muslim Liberal Arts College Opens
Zaytuna College opened its doors in Berkley, CA, to encourage deeper engagement between Muslims and scholars of Islam and a traditional liberal arts education. Operating under the motto “Where Islam meets America,” the school follows a precedent already set by Christian and Jewish colleges to foster a multidisciplinary approach to education while simultaneously maintaining a discourse rooted in religious tradition.
2010 CE Opposition to Park51, an Islamic Cultural Center in Lower Manhattan
Plans to construct an Islamic cultural center in Lower Manhattan caused great controversy and much protest throughout the United States. Dubbed by misinformed media as the “Ground Zero Mosque”, opponents of the center’s construction claimed that the site for the Muslim cultural center and worship space would be too close to Ground Zero, claiming it would be “insensitive” to do so. Despite continued challenges to the project, both internally and externally, plans for the construction of the center, in that location, continued to move forward.
2010 – 2012 CE Murfreesboro Islamic Center Controversy
In 2009, the Islamic Center of Murfreesboro, in Tennessee, made plans to construct a larger cultural center due to support the growing Muslim community in the area. Despite initial approval by the town planning commission, vocal and even violent opponents protested, going so far as to claim that Islam was not a religion and that the center could pose a Constitutional threat. After two years of court disputes and vandalism and arsenal attacks on the property, members of the Murfreesboro Islamic Center were finally granted official permission again to occupy their property.
2010 CE Anti-Shariah Legislation Proposed
In 2010, Oklahoma residents voted overwhelmingly for a ballot measure that would amend the state constitution to explicitly ban Shariah, or, loosely, “Islamic law”, from state courts. CAIR, the Council on American-Islamic Relations, took the proposed amendment to court, which resulted in a January 2012 ruling that it was unconstitutional to ban Shariah. Oklahoma is one of two dozen states that have considered anti-Shariah legislation, which some attribute to an Islamophobic movement financed by a group of right-wing conservatives, including through the controversial Center for Security Policy that disseminated a report on the perceived threat of Shariah.
2010 – 2011 CE Qur’an “Put on Trial” in Florida
Pastor Terry Jones of the Christian Dove World Outreach Center based in Gainsville, FL, announced his plan to burn two hundred copies of the Qur’an on the ninth anniversary of the 9/11 attacks, garnering much media attention and causing international outrage that caused massive and fatal protests throughout the world. While he called off his plan to burn the Muslim holy book on September 11th of that year, due to national security concerns that his threat caused, he “put the Qur’an on trial” in 2011, claiming to find the scripture guilty of “crimes against humanity” and subsequently burning it in his church. Jones’ behavior has been widely perceived as hateful and bigoted and has been condemned by American and global leaders, including President Obama.
2011 CE American Muslim Congressional Hearings
As Chairman of the Homeland Security Committee for the House of Representatives, Peter King called for and held Congressional hearings that questioned the extent to which American Muslims were cooperating in efforts to eradicate homegrown terrorism. Opposition to the hearings, which came from fellow congressmen as well groups like the Muslim Public Affairs Council (MPAC), Amnesty International, and the Sikh Coalition, claimed that such targeted generalization of Muslims was divisive and wrong.
2011 CE “All-American Muslim” on TLC
This television series depicting daily lives of American Muslims in Dearborn, MI, broadcast for one season on The Learning Channel (TLC), emphasizing on mainstream television the common routines shared by Muslim and non-Muslim Americans alike.
2012 CE Film: “The Innocence of Muslims”
A provocative and anti-Muslim film trailer, which denigrates the Prophet Muhammad, was launched on YouTube with Arabic dubbing, sparking anti-American protests around the world. The film prompted debate about Internet censorship and freedom of expression domestically and globally.
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What does it mean for a religion to be woven into American history?
The presence of Muslims in the early United States is well known to scholars — historians have put their population in the tens of thousands — yet when President Obama noted last month that “Islam has been woven into the fabric of our country since its founding,” he was greeted with incredulous outrage.
There was controversial Christian historian David Barton scoffing that Islam’s influence could be seen mainly in the role followers of Muhammad played in the slave trade and the Barbary Wars, while South Carolina Congressman Jeff Duncan wondered if the president’s “Jakarta elementary education” might be responsible for his view of the past.
An editor of a Catholic newspaper put doubts about the president’s historical literacy plainly when he asked, “Is he high?”
But it’s not up for argument that this majority Christian nation has a spiritual history much more diverse than usually supposed.
As Obama’s critics have noted, there were, of course, no Muslims among the Founding Fathers. Thomas Jefferson and John Adams both owned copies of the Quran, but they may have been as unaware of Muslims living in the young United States as David Barton and Jeff Duncan are today.
Muslims’ presence here is affirmed in documents dated more than a century before religious liberty became the law of the land, as in a Virginia statute of 1682 which referred to “negroes, moores, molatoes, and others, born of and in heathenish, idollatrous, pagan, and Mahometan parentage and country” who “heretofore and hereafter may be purchased, procured, or otherwise obteigned, as slaves.”
The number of Muslims brought to this predominantly Christian land would have equalled the populations of many religious groups in 18h century America. In fact, men and women with connections to Islam in the newly independent United States would have rivaled the memberships of Methodist or Roman Catholic churches, and far exceeded the number of Jews.
No one would challenge the notion that these other faiths “have been woven into the fabric of our country,” so why has the presence of Muslims in early America been forgotten? In part because the role of religion in the origins of slavery has been replaced in popular memory with later distinctions made according to race.
Some of the original slavery laws actually were more concerned with the content of forced laborers’ beliefs than with the color of their skin. From the perspective of Europeans of the time, the reason for this was clear: Belief could spread in a way that color could not.
Even in 1685, a Spanish law stated, “The introduction of Mohammedan slaves into America is forbidden on account of the danger which lies in their intercourse with the Indians.” Religious difference was regarded as highly contagious, and thus dangerous.
In the English colonies of North America to which we more often trace our nation’s history, slave owners originally assumed Christians should not be slaves. Christian servants might work for a predetermined period under slave-like indenture, but the duration of their servitude was limited by definition. Non-Christians, on the other hand, could be trapped in bondage for life.
This arrangement soon proved untenable, however. If slavery was defined in relation to belief, conversion would become a potential path to freedom. Only after a Virginia law of 1667 guaranteed that baptism would not “alter the condition of the person as to his bondage or freedom,” did English settlers declare that all enslaved men and women “brought or imported into this country, either by sea or land, whether Negroes, Moors, Mollattoes or Indians… shall be converted to the Christian faith.”
The motivation for this was as much a matter of control as a genuine desire to spread the gospel. Praising the “beneficial effects of religious instruction” on the enslaved, one slaveholder later wrote, “those who have grown up under such instruction are more honest, truthful, moral… and devoted to their owners’ interests than those who have not enjoyed the same advantages.”
Given this history, it’s no surprise that the place of Islam in the nation’s past should make so many so uncomfortable. It was actively eradicated and replaced by the religious tradition with which the majority of Americans identify today.
Muslims were indeed here from the beginning, but the beliefs and practices they brought with them only rarely endured. Their experiences serve as a reminder that every faith woven into the fabric of our country has been made up of strands both light and dark.
Image: Portrait of the enslaved Muslim Yarrow Mamout by Charles Willson Peale (1819), via Wikimedia.
Follow Peter Manseau on Twitter: www.twitter.com/petermanseau
When Thomas Jefferson crafted the Declaration of Independence, he pointed to “certain unalienable rights” with which we were endowed by our “Creator.”
What did he mean when he wrote the phrase “unalienable rights,” and what rights are “unalienable”?
Jefferson understood “unalienable rights” as fixed rights given to us by our Creator rather than by government. The emphasis on our Creator is crucial, because it shows that the rights are permanent just as the Creator is permanent.
Jefferson’s thought on the source of these rights was impacted by Oxford’s William Blackstone, who described “unalienable rights” as “absolute” rights–showing that they were absolute because they came from him who is absolute, and that they were, are, and always will be, because the Giver of those rights–Jefferson’s “Creator”–was, and is, and always be.
Moreover, because we are “endowed” with them, the rights are inseparable from us: they are part of our humanity.
In a word, the government did not give them and therefore cannot take them away, but the government still strains at ways to suppress them.
To protect fundamental, individual rights, James Madison helped include the Bill of Rights in the Constitution. The intent was to remove them from government’s reach.
The “unalienable rights” explicitly protected by the Bill of Rights include, but are not limited to, the rights of free speech and religion, the right to keep and bear arms, self-determination with regard to one’s own property, the right to be secure in one’s own property, the right to a trial by a jury of one’s peers, protection from cruel and unusual punishment, and so forth.
Among the “unalienable rights” implicitly protected in the Bill of Rights are freedom of conscience–how can one have freedom of speech or religion without freedom of conscience?–and the right to self-defense. As Associate Justice Samuel Alito wrote in the majority decision for McDonald v. Chicago (2010): “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in [District of Columbia v. Heller (2008)], we held that individual self-defense is a central component of the Second Amendment right.”
“Unalienable rights” are ours to keep, by virtue of our Creator. So said Thomas Jefferson through the Declaration of Independence, and he was seconded by James Madison through the Bill of Rights.
A “central component” of our “unalienable rights” is the right to keep and bear arms.
Follow AWR Hawkins on Twitter @AWRHawkins.
The definition of the word post originally meant “any of a number of riders or runners posted at intervals to carry mail or messages in relays along a route; postrider or courier” (Webster’s New World Dictionary, Third College Edition, 1988, page 1054). People, thousands of years ago, didn’t write letters to one another like we do nowadays. They didn’t even have paper, everything was done on clay tablets and papyrus (but that was a very expensive thing to engage in). And therefore, the posts were really set up for governmental purposes, between different rulers in their own country as well as neighboring countries. The government set it up originally.
But there was another entity, known as the general post-office, which was not for commercial purposes and it was strictly for fellowship between the brothers, and they did it amongst themselves. Paul’s letters were not delivered by Caesar’s men, but by brothers in Christ, and that is the general post-office. And throughout history, there’s always been the general post-office and the governmental post office; and they’re different. One’s done strictly for fellowship, the other’s done for commercial purposes.
The current postal system, which is known as the United States Postal Service, is commercial, but it still retains the non-commercial aspect. It’s based on the original general post-office, It does not exist without tracing its root to the original general post-office. And as with everything, the created cannot do away with the creator. Therefore, that original creation by the brothers fellowshipping amongst each other is still in existence, they’ve never done away with it. In all their statutes, every time they come up with a new statutory entity, they never do away with the general post-office, therefore it is still there.
The general-post-office is not mentioned in the Domestic Mail Manual because the Domestic Mail Manual denotes commerce. If you’ve got a problem, that’s what the postal service employees and managers will refer to, but that’s because everyone’s presumed to be in commerce. But it’s only a presumption, and that’s where you have to come in and rebut that presumption. You rebut it by not engaging in commercial activity and not receiving your mail at an address, etc. Most people don’t realize that when you receive mail at an address, or even at a P.O. Box, you’re receiving a free benefit from Caesar. The postage you put on the envelope only covers the cost to deliver it from post office to post office, it does not cover any delivery beyond the post office (and the price for a P.O. Box covers the cost to rent the box itself, not for the cost of delivery). That’s called free delivery, which was instituted during the Civil War, on July 1st, 1863. It was basically an act of war by Abraham Lincoln. Even though they did have free mail delivery service prior to that, it was strictly for commercial businesses. But then, in 1863, they spread it to everyone. Up to that time, nobody had an address on their house. The numbers were brought in on the houses strictly so the postman would know where to deliver the mail. Before 1863, people would collect their mail by going to the local post office and asking for it.
The U.S.Postal Service was established in 1971. This was preceded by the Post Office Department, which was established in 1872. And before the Post Office Department, the general post-office preceded that. In the early 1800’s, they started referring to the general post office as the Post Office Department. However, it did not officially become the Post Office Department until 1872. Previous to that it was known as the general post-office.
There was actually two different general post-offices. The Post Master General today wears about seven hats; there are about seven different entities to the postal system. He wears the original hat as a caretaker of the original general post-office. He’s also the caretaker of the general post-office that was created on February 20, 1792, which was for governmental business. And then in 1872 they created the Post Office Department.
In 1639, the original foundation for the post office was given in Massachusetts to Richard Fairbanks, the owner of Fairbanks Tavern in Boston. He was the first Postal officer in the history of the United States.
The General Court of Massachusetts
November 5, 1639:
“For preventing the miscarriage of letters, it is ordered, that notice be given that Richard Fairbanks’s house in Boston is the place appointed for all letters which are brought from beyond the seas, or are to be sent thither,’to be brought unto; and he is to take care that they be delivered or sent according to their directions; and he is allowed for every such letter one penny, and must answer all miscarriages through his own neglect in this kind; provided that no man shall be compelled to bring his letters thither, except he please.”
Following the adoption of the Constitution in May 1789, the Act of September 22, 1789 (1 Stat. 70), temporarily established a post office:
NINETEENTH ACT of CONGRESS
An ACT for the temporary establishment of the POST OFFICE. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be appointed a Post-Master General; his powers and salary and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the Post-Office shall be the same as they last were under the resolutions and ordinances of the late Congress. The Post-Master General to be subject to the direction of the President of the United States in performing the duties of his office, and in forming contracts for the transportation of the mail. Be it further enacted, That this act shall continue in force until the end of the next session of Congress, and no longer. Approved, September 22nd, 1789.
The post office was temporarily continued by the Act of August 4, 1790 (1 Stat. 178), and the Act of March 3, 1791 (1 Stat. 218). The Act of February 20, 1792 made detailed provisions for the post office, and also established a separate general post office for governmental purposes:
Chapter VIII – An Act to establish the Post Office and Post Roads within the United States.
Section 3. And it be further enacted, That there shall be established, at the seat of the government of the United States, a general post-office.
Note that this one page statutory creation by Congress established that general post-office for governmental business at the seat of the government of the United States in Washington D.C. The general post-office, which already existed, was never designated as being repealed in this Act. Therefore, it still remains in existence, separate from the governmental business’ set up by this Act. There’s nothing in that whole act which repeals the original general post-office. There’s nothing in the act of 1872, when they created the Post Office Department, which did away with the original general post-office. So it’s still there. There’s nothing in the act of July 1, 1971, which created the Postal Service. The creation cannot do away with the creator, they cannot abolish the creator. Otherwise it has no foundation. And that’s why the current Postmaster General wears about seven hats, because he has all of those different things that were created all the way through there.
In the early 1800’s, the general post-office began to be referred to as “the Post-office department,” but was not officially created until June 8, 1872:
Chapter CCCXXXV. – An Act to revise, consolidate, and amend the Statutes relating to the Post-office Department. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there shall be established, at the seat of government of the United States of America, a department to be known as the Post-office Department.
And again, the general post-office was not repealed in this statute. It is for this cause that the re-organized service and its employees have no authority over the general post-office – it precedes their creation and has its Source and Origin in God through His Lawful assembly. The Post Office Department of the Confederate States of America was established on February 21, 1861, by an Act of the Provisional Congress of the Confederate States. The resumption of the federal mail service in the southern states took place gradually as the war came to an end.
Then the Post Office Department was replaced by the United States Postal Service on July 1, 1971. Title 39, the Postal Reorganization Act, details this change as well.
Scripture Passages
The general post office has its beginnings in scripture.
Jeremiah 51:31, “One post shall run to meet another, and one messenger to meet another, to shew the king of Babylon that his city is taken at one end…”
A “post” is another name for a courier:
2 Chronicles 30:6, “So the posts went with the letters from the king and his princes throughout all Israel and Judah,”
Esther 3:13, “And the letters were sent by posts into all the king’s provinces…”
Scripture records messages being sent “by the hands of messengers” (1 Samuel 11:7) from as far back as the book of Job, which is the oldest book in the bible:
Job 1:14, “And there came a messenger unto Job, and said, the oxen were plowing, and the asses feeding beside them:”
These messages were delivered using the current means of movement at the time:
Esther 8:10,14, “And he wrote in the king Ahasuerus’ name, and sealed it with the king’s ring, and sent letters by posts on horseback, and riders on mules, camels, and young dromedaries: So the posts that rode upon mules and camels went out…”
And sending messages refreshes the soul:
Proverbs 25:13, KJV, “As the cold of snow in the time of harvest, so is a faithful messenger to them that send him: for he refresheth the soul of his masters.”
Proverbs 25:13, Septuagint, “As a fall of snow in the time of harvest is good against heat, so a faithful messenger refreshes those that sent him: for he helps the souls of his masters.”
In times passed, people sent messages to others by posting their letters on a “post” in the middle of town, with the name of the one who it’s intended for. People would go to this “post” and look for letters with their name on it, and if they saw their name on a letter they would take it down from the post and read it. However, due to theft of messages, an office was built around the post to prevent people from stealing messages. This office became known as the general post-office. People would then go to the general post-office to pick up their messages.
<Today, the stamp on an envelope pays for delivery of that envelope from the sender’s post-office to the receiver’s post-office. It does not pay for the costs when that envelope leaves the area behind the clerk’s desk and gets delivered to the receiver’s address, mailbox, post office box, mail slot, etc. This is a “free” service. The alternative to free mail delivery is to receive all Postal Matter either in general delivery, or through the general post office./p>
Margaret D. Stock (Margaret Stock is an attorney with the firm of Lane Powell LLC in Anchorage, Alaska, and a Member of the American Bar Association Commission on Immigration.)
The Declaration of Independence famously asserted that “all men are created equal,” but this assertion did not become an American constitutional reality until the Fourteenth Amendment was ratified in 1868. The Fourteenth Amendment’s Citizenship Clause—intended to overturn the infamous U.S. Supreme Court decision in the Dred Scott (1857) case—states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Traditionally, the clause has been interpreted to confer U.S. citizenship on anyone born within the United States whose parents are subject to U.S. civil and criminal laws—which has historically meant that only babies born in the United States to diplomats, invading armies, or within certain sovereign Native American tribes have been excluded from birthright American citizenship. Alarmed by the thought that unauthorized immigrants, wealthy tourists, and temporary workers are giving birth to thousands of U.S. citizens, some want to change the long-standing rule by reinterpreting or amending the Citizenship Clause. But will this proposed change be good for America? Will it benefit America to reduce substantially the number of birthright U.S. citizens—and put in place more complex rules that would provide that U.S.-born babies are not created equal?
Cato Journal
A Brief History of the U.S. Birthright Citizenship Rule
At the time of the ratification of the U.S. Constitution in 1790, the new United States recognized three different paths to American citizenship:
First, a person could be born a foreigner and later apply to become a U.S. citizen through the naturalization process; this pathway fell under Congresss power to create a uniform rule of naturalization, as stated in Article I, Section 8 of the U.S. Constitution. Second, following the international law rule, a person might inherit citizenship from his or her citizen parents; this pathway termed the jus sanguinis or the citizenship by blood or descent rule was thought to be within the naturalization power of Congress as well, and was first permitted when Congress passed the Naturalization Act of 1790, which accorded natural born citizen status to the foreign-born children of certain U.S. citizens1.
Third, the United States also adopted the British common-law rule of jus soli (law of the soil) for persons born within the territorial jurisdiction of the United States whose parents were subject to U.S. civil and criminal laws.
The Naturalization Act of 1790 (March 26, 1790) stated: And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.
In 1857, however, in the case of Sandford v. Scott (commonly termed the Dred Scott case), the U.S. Supreme Court determined that these three pathways to U.S. citizenship were not open to persons of African descent. Moreover, said the Court, these pathways could never be open to Africans or their descendants as a matter of constitutional law, the Court said, the original political community in America had never consented to the inclusion of Africans as full members of that community 2 and so Africans and their descendants were forever barred from U.S. citizenship. In reaching its decision, the Supreme Court held that mere birth on U.S. soil was not enough to confer U.S. citizenship; one also had to show that the political community had consented to ones presence.
After the Civil War, the Dred Scott decision was explicitly reversed, first through passage of the Civil Rights Act of 1866, and then as a matter of constitutional law by the Fourteenth Amendments Citizenship Clause. The wording of the two enactments differed; the Civil Rights Act granted U.S. citizenship to persons born in the United States who were not subject to any foreign power; in contrast, the Fourteenth Amendments Citizenship Clause granted citizenship to the broader class of those subject to the jurisdiction.
During debates over passage of both measures, however, there was vigorous discussion over the coverage of the Citizenship Clause and the fact that it applied to the children of foreigners, even if those foreigners were in the United States in violation of various laws.
The U.S. Supreme Court was wrong on this point several States had recognized persons of African descent as citizens. Abraham Lincoln ([1857] 1953: 4037) famously criticized Chief Justice Taneys underlying assumptions: Chief Justice Taney, in delivering the opinion of the majority of the Court, insists at great length that Negroes were no part of the people who made, or for whom was made, the Declaration of Independence, or the Constitution of the United States. [In several of the original States], free Negroes were voters, and, in proportion to their numbers, had the same part in making the Constitution that the white people had.
Although the issue was not mentioned in the debates, many African slaves whose U.S.-born children benefitted from the Fourteenth Amendments Citizenship Clause were in the United States in violation of law; they had been smuggled or trafficked into the United States by slave traders after the importation of slaves into the U.S. was outlawed by Congress in 1808. And although immigration enforcement was not a priority of the federal government in the first half of the nineteenth century, there were other immigrants who were in the U.S. in violation of various immigration laws, including Irish citizens who had shipped into Canada and then surreptitiously crossed the border so as to avoid paying entry taxes at U.S. ports.
The Citizenship Clause would expand the number of Chinese and Gypsies in America by granting birthright citizenship to their children, although the parents owed no “allegiance” to the United States and were committing “trespass” by being in the United States. Arguing against him, supporters of the Citizenship Clause defended the right of these children to be U.S. citizens at birth. Both sides in the debate agreed that the Clause would extend U.S. birthright citizenship to the children born in the United States to foreigners who were subject to U.S. civil and criminal laws—excluding only the children of foreign diplomats, invading armies, and sovereign Native American tribes (Ho 2006).
Following ratification of the Fourteenth Amendment, the U.S. Supreme Court consistently followed this interpretation of the Citizenship Clause (there was a passing comment in the Slaughterhouse cases [1873] that has caused some to argue otherwise, but Slaughterhouse was not a birthright citizenship or immigration case). As conflicts over Asian immigration arose in the western United States in the late 1800s, however, some government officials began to deny the rights of U.S. citizenship to U.S.-born children of Chinese descent. Thus, in 1898, the U.S. Supreme Court had occasion—in the Wong Kim Ark decision—to confirm unequivocally that birthright citizenship belonged to any child born within the territorial jurisdiction of the United States, as long as the child—at the time of his or her birth on U.S. soil—was subject to U.S. civil and criminal laws. The Court held that an American-born child of Chinese immigrants was entitled to citizenship because the “Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . including all children here born of resident aliens” (Wong Kim Ark 1898). The net result, then, was that following passage of the Fourteenth Amendment, and excepting certain Native Americans, the U.S. government recognized all non-diplomatic persons born within the territorial jurisdiction to be U.S. citizens, regardless of their parentage. The U.S. Department of State began issuing U.S. passports to all such children—unless their parents were diplomats who held immunity from U.S. civil and criminal laws. Congress also passed a number of statutes recognizing the extension of birthright citizenship to persons born within newly acquired U.S. territories, including Alaska, Hawaii, Guam, Puerto Rico, and the U.S. Virgin Islands. More recently, in Plyler v. Doe (1982), the U.S. Supreme Court stated that the Fourteenth Amendment extends to anyone “who is subject to the laws of a state,” including the U.S.-born children of unauthorized immigrants. Similarly, in Immigration and Naturalization Service v. Rios-Pineda (1985), the Court stated that a child born on U.S. soil to an unauthorized immigrant parent is a U.S. citizen from birth.
In the mid-1980s, however, as immigration laws tightened and unauthorized immigration to the United States increased to record levels, Yale scholars Peter Schuck and Rogers Smith (1985) published Citizenship without Consent, a book in which they argued that America should move away from its historic birthright citizenship rule. Schuck and Smith said that a rule of “citizenship by consent”— the opposite of a rule that confers citizenship automatically on children born within American territory—was a more appropriate rule for the modern American polity. Although they acknowledged that the American birthright citizenship rule was familiar, easy to apply, and more inclusive than a consensual rule, they argued that it was “anomalous as a key constitutive element of a liberal political system” because an individual’s citizenship was determined by the location of his or her birth, and not by the consent of the individual and the society in which he or she sought citizenship (Schuck and Smith 1985: 90). They further argued that the Fourteenth Amendment phrase “subject to the jurisdiction” could be reinterpreted by congressional statute or by the U.S. Supreme Court to adopt the consent theory and thereby exclude the children of unauthorized immigrants from U.S. citizenship. The arguments raised by Schuck and Smith were later seized upon by others, and have today become a centerpiece in current immigration debates. Most recently, Republican presidential candidates Tim Pawlenty and Herman Cain attempted to distinguish themselves from other candidates for their party’s presidential nomination by expressing support for a change in the birthright citizenship rule. They are not alone in their assessment that proposals to change the Citizenship Clause are worthy of support. Such arguments have now become commonplace in some conservative circles.
Proposed Changes to the Rule
Proponents of a change to the Citizenship Clause argue that America will benefit by abandoning its long-standing birthright citizenship rule because a rule allowing citizenship only through one’s parents or by naturalization will make U.S. citizenship more valuable, deter unauthorized migration, bring the United States into line with the most common international law rule, and reduce chain migration (which they view unfavorably). They also see a change to the Citizenship Clause as a way to punish unauthorized immigrants or certain U.S.-born children of whom they do not approve. Thus, for example, legal scholar John Eastman (2008) argued in an amicus brief filed with the U.S. Supreme Court that a change in the Court’s interpretation of the Citizenship Clause could retroactively take away the U.S. citizenship of Yaser Hamdi, a U.S.-born citizen who was captured fighting against American forces on the battlefield in Afghanistan. He argued that the Court could punish Hamdi by reinterpreting the Citizenship Clause to take away Hamdi’s birthright citizenship, because Hamdi was born in the United States to parents who held temporary work visas at the time of his birth (Eastman 2008: 957–58). Eastman’s proposed new interpretation, however, would have taken away not only the U.S. citizenship of Yaser Hamdi, but also the citizenship of millions of other Americans born under similar circumstances (including some of the U.S. military personnel who captured Hamdi). Unsurprisingly, the U.S. Supreme Court ignored Eastman’s invitation.
In the Hamdi case, Eastman urged a new U.S. Supreme Court interpretation as a means of changing the birthright citizenship rule, but others have argued for a different approach. Some have proposed congressional legislation, others have suggested a constitutional amendment, and some have introduced state legislation to bring back the concept of “state citizenship” so as to create a twotier system that would distinguish between babies born in the United States with citizenship and babies born in the United States who do not hold U.S. citizenship.
In line with the first approach, some have argued that changing the Citizenship Clause requires no constitutional amendment because Congress can change the Fourteenth Amendment’s meaning by passing a statute that “clarifies” that “subject to the jurisdiction” means “subject to the complete or full jurisdiction.” Such a reinterpretation would work to deprive babies of U.S. citizenship if their parents do not hold certain specified lawful immigration statuses, on the theory that those parents are not subject to the complete jurisdiction of the United States because they hold allegiance to a foreign country. In line with this view, Representative Steve King (R-Iowa) and Senator David Vitter (R-La.) have introduced “The Birthright Citizenship Act of 2011,” to restrict citizenship under the Citizenship Clause to a child at least one of whose parents is a citizen, lawful permanent resident, or on active duty in the armed forces. It is unclear what effect, if any, the courts would give such a statutory re-interpretation of the Fourteenth Amendment, but if enacted, the law would immediately throw into confusion the citizenship of thousands of babies.
Other politicians agree that “subject to the jurisdiction” can’t be reinterpreted by statute, so their solution is a constitutional amendment. Along this line, Senators Vitter and Rand Paul (R-Ky.) have introduced a proposed constitutional amendment that would change the right of citizenship under the Fourteenth Amendment. Like the Birthright Citizenship Act of 2011, the proposed Vitter-Paul constitutional amendment would not allow birthright citizenship for those born in the United States unless at least one parent is a citizen, a lawful permanent resident, or an immigrant in active military service.
A different approach is being taken by State Legislators for Legal Immigration (SLLI), a coalition of immigration restrictionist legislators from 40 states who have proposed state legislation that would resurrect the notion of state citizenship and restrict it along the lines of the King bill described above. SLLI has proposed an interstate compact strategy under which states would agree to “make a distinction in the birth certificates” of native-born persons so that Fourteenth Amendment citizenship will be denied to children born to parents who owe allegiance to any foreign sovereignty. The interstate compact would be subject to the consent of Congress under Article I, Section 10 of the Constitution. The effect of this approach would be to seek a change in the meaning of the Citizenship Clause without having to secure the approval of the president or a veto override.
The net result of all these different proposals—if they succeed—would be to create different classes of American-born babies by requiring different types of birth certificates to be issued to different groups, or by making it difficult or impossible for some to obtain proof of U.S. citizenship by birth. But would this permanent twotiered caste system be a good thing? What would be the practical impact? Would the creation of a two-tier system of birth certificates solve our nation’s pressing immigration problems, or otherwise have a salutary effect?
Peace and Love Divine!
Sahu Maak Heru Bey, D.M.
Department of Media and Freedom
“The probability of being an idiot is directly proportional to ignorance and no common sense.”
The Christian Black Codes of 1724, were initiated during reconstruction after the Civil war to control blacks after they were emancipated. Passed by Southern States, instead of giving blacks the same rights as white people, the codes limited the blacks freedom severely. They included that blacks had to be in service of a white person, that they could not have congregations together, that they could not speak out, and that they could not have weapons. They also included that blacks could not go out without a white ‘supervisor’, thus blacks had to take on the religions and holidays and gods of their white superiors. These same black codes were said to have been made null and void with the ratification of the 13th Amendment in 1865, although many southern states adopted “Black Codes” to keep former slaves from voting and imposed other restrictions. The 14th and 15th Amendments were supposedly to have eliminated these codes, but as you read them down below, and study the law of the land in conjunction with Religion and Politics, you’ll discover these codes have been modernized in a disguise, and many are still in effect. The “Christian” BLACK Codes of 1724
Article 1 Decrees the expulsion of the Jews from the colony.
Article 2 Make it imperative on masters to impart religious instruction to their slaves.
Article 3 Permits the exercise of the Roman Catholics creed only, Every other mode of worship is prohibited.
Article 4 Negroes placed under the direction or supervision of any other person than a Catholic, are liable to confiscation.
Article 5 SUNDAYS and HOLY-DAYS (HOLIDAYS) are to be strictly observed. All Negroes found at work on these days “are to be confiscated”.
Article 6 We forbid our “White” Subjects (of both sexes) to marry with “The BLACKS” under penalty of being fined and subjected to some other arbitrary punishment. We forbid all curates, priests, or missionaries of our secular or regular clergy, and even our chaplains in our Navy, to section (sanction) such marriages. We also forbid all of our “White” Subjects (and even the manumitted or free-born “Blacks”) to live in a state of concubinage with slaves. Should there be any issue from this kind of intercourse, it is our will that the person so offending, and the master of the Slave should pay each a fine of three hundred livres. Should said issue be the result of concubinage of the master his slave, said master shall not only pay the fine, but be deprived of the slave and of the children, who shall be adjudged to the hospital of the locality, and said slave shall be forever incapable of being set free. But shall this illicit intercourse have existed between a free Black and his slave, when said slave according to the forms described by the church, said slave shall become free and legitimate; and in such case there shall be no application of the penalties mentioned in the present article.
Article 7 The ceremonies and forms prescribed by the ordinance of blois and by the edict of 1691, for marriage, shall be observed both with regard to free persons and slaves. But the consent of the father and mother of the slave is not necessary; that of the master shall be the only one required.
Article 8 We forbid all curates to process to effect marriages between slaves without the proof of the consent of their master; and we also forbid all masters to force their slaves into marriages against their wills.
Article 9 Children, issued from the marriage of slaves shall follow the condition of their parents, and shall belong to the master of the wife and not of the husband, if the husband and the wife have different masters.
Article 10 If the husband be a slave, and the wife a free woman, it is our will that their children, of whatever sex they be, shall share the condition of their mother, and be as free as she, notwithstanding the servitude of their father; and if the father be free and the mother a slave, then the children shall be slaves.
Article 11 Masters shall have their “CHRISTIAN Slaves” buried in consecrated ground.
Article 12 We forbid slaves to carry offensive weapons or heavy sticks under the penalty of being whipped, and of having said weapons confiscated for the benefit of the person seizing the same. An exception is made in favor of those slaves who are hunting or are shooting for their masters, and who carry with them a written permission to that effect, or are bring designated by some known mark or badge.
Article 13 We forbid slaves belonging to different masters to gather in crowds either by day or by night, under the pretext of a wedding, or for any other cause, either at the dwelling or on the grounds of one of their masters or elsewhere, and less on the highways or in secluded places, under the penalty of corporal punishment, which shall not be less than the whip. In case of frequent offenses of the kind, the offenders shall be branded with the mark of the Flower de Luce, and should there be aggravating circumstances, capital punishment may be applied, at the discretions of the judges. We command all of our subject, be they officials or not, to seize offenders, to arrest and conduct them to prison, although there should be not judgment against them.
Article 14 Masters who shall be convicted of having permitted or tolerated such gatherings as aforesaid, composed of other slaves than their own, shall be sentenced individually, to indemnify their neighbors for the damages occasioned by said gatherings, and to pay, for the first time, a fine of thirty livres, and double that sum on the repetitions of the offense.
Article 15 We forbid Negroes to sell any commodities, provisions, or produce of any kind, without the written permission of their masters, or without wearing their known marks or badges, and any persons purchasing any thing from Negroes in violation of this article, shall be sentenced to pay a fine of 1500 livres.
Articles 16, 17, 18, and 19 Provide at length for the clothing of slaves and for their subsistence.
Article 20 Slaves (who shall not be properly fed, clad, and provided for by their masters) may give information thereof to the Attorney-General of the Superior Council, or to all the officers of an inferior jurisdiction, and may put the written exposition of their wrongs into the hands; upon which information, and even ex-officio, shall the information come from another quarter, the Attorney-General shall prosecute said masters without charging any cost to the complainant. It is our will that this regulation be observed in all accusations for crimes or barbarous and inhumane treatment brought by slaves against their masters.
Article 21 Slaves who are disabled from working, either by old age, disease or otherwise, be the diseases incurable or nor, shall be fed and provided for by their masters; and in case they should have been abandoned by said masters, said slave shall be adjudged to the nearest hospital, to which said master shall be obliged to pay eight (8) cents a day for the food, and maintenance of each one of these slaves; and for the payment of this sum, said hospital shall have a lien on the plantation masters.
Article 22 We declare that slaves have no right to any kind of property but that all that they acquire either by their own industry, or by the ability of others, or by any other means or title whatever shall be the full property of their masters; and the children of said slaves, their fathers, mothers, their kindred or other relation either free or slave shall have no pretensions or claim thereto, either through testamentary nor positions or donations inter vivace; which dispositions and donations we declare null and void, and also whatever promise they may have interred into by persons incapable of disposing of anything and or participating to any contract.
Article 23 Masters shall be responsible for what their slaves have done by their command, and also for what transactions they have permitted their slaves to do in their shops, in the particular line of commerce with whom they were entrusted; and in case said slaves should have acted without order or authorization of their masters, said masters shall be responsible only for so much as has turned to their profit; and if said masters have not profited by the dining or transaction of their slaves, the per curium which the masters have permitted the slave to own, shall be subjected to all claims against said slaves, after deduction made by the masters of what may be due to them; and if said per curium should consist in whole or in part of merchandises in which the slaves had permission to traffic, the masters shall only come in for their share in common with the other creditors.
Article 24 Slaves shall be incapable of all public functions, and of being constituted agents for any other person than their own masters, with powers to manage or conduct any kind of trade; nor can they serve as arbitrators or experts; nor shall they be called to give their testimony either in civil or in criminal cases, except when it shall be a matter of necessity, and only in default of “White” People; but in no case shall they be permitted to serve as witness either for or against their masters..
Article 25 Slaves shall never be parties to civil suits, either as plaintiffs or defendants, nor shall they be allowed to appear as complainants in criminal cases, but their masters shall have the right to act for them in civil matters, and in criminal ones, to demand punishment and reparation for such outrages and excesses as their slaves may have suffered from.
Article 26 Slaves may be prosecuted criminally, without their masters being made parties to the trial, except they should be indicted as accomplices; and said slaves shall be tried, at first, by the judges of ordinary jurisdiction, if there be any, and on appeal, by the Superior Council, with the same rules, formalities, and proceedings observed for free persons, save the exceptions mentioned hereafter.
Articles 27 to 32 were not immediately available
Article 33 Slaves who shall have made themselves liable to the penalty of the whip, the flower de luce brand, and ear cutting, shall be tried in the last resort, by the ordinary judges of the inferior court, and shall undergo the sentenced passed upon them without there being an appeal to the Superior Council, in confirmation or reversal of judgment, notwithstanding the article 26th of the present code, which shall be applicable only to those judgments in which the slave is sentenced to be hamstrung or to suffer death.
Article 34 Freed or born-free negros, who shall have afforded refuge in their houses to fugitive slaves, shall be sentenced to pay to the masters of said slaves, the sum of thirty (30) livres a day for every day during which they shall have concealed said fugitives; and all other free persons, guilty of the same offense, shall pay a fine of ten livres a day as aforesaid; and should the freed or freed-born Negroes not be able to pay the fines herein specified, they shall be reduced to the condition of slaves, and be sold as such. Should the price of the sale exceed the sum mentioned in the judgment, the surplus shall be delivered to the hospital.
Article 35 We permit our subjects in this colony, who may have slaves concealed in any place whatever, to have them sought after by such persons and in such way as they deem proper, so to proceed themselves to such researches as they may think best.
Article 36 The slave who is sentenced to suffer death on the denunciation of his master, shall, when that master is not an accomplice to the crime, be appraised before his execution by two of the principal inhabitants of the locality, who shall be especially appointed by the judge, and the amount of said appraisement shall be paid to the master. To raise this sum, and shall be collected by the persons invested with what authority.
Article 37 We forbid all the officers of the Superior Council, and all our other officers of the justice in the colony to take any fees or receive any prerequisites in criminal suits against slaves, under the penalty, in so doing of, being dealt with as guilty of extortion.
Article 38 We also forbid all of our subjects in this colony, whatever their condition or rank may be, to apply, on their own private authority, the rack to their slaves, under any pretenses whatever, and to mutilate said slaves in any one of their limbs, or in any part of their bodies, under the penalty of confiscation of said slave; and masters, so offending, shall be liable to a criminal it, to put their slaves in irons and to have them whipped with rods or ropes.
Article 39 We command our officers of justices in this colony to institute criminal process against masters and overseers who shall killed or mutilated their slaves, when in their power and under their supervision, and to punish said murder according to the atrocity of the circumstances; and in case the offenses shall be a pardonable one, we permit them to pardon said master and overseer without being necessary to obtain from us letters patent of pardon.
Article 40 Slaves shall be held in law as movables, and as such, they shall be part of the community of acquests between husband and wife; they shall be seized under mortgage whatever; and they shall be equally divided among the co-heirs without admitting from any one of said heirs any claim founded on preciput or right of primogeniture, or dowry.
Articles 41 and 42 are entirely relative to judicial forms and proceedings.
Article 43 Husbands and wives shall not be seized and sold separately when belonging to the same master, and their children, whom under fourteen years of age, shall not be separated from their parents and such seizures and sales shall be null and void. The present article shall apply to voluntary salws, and in such cse sales should take place in violation of the law, the seller shall be deprived of the slave he has illegally retained and said slave shall be adjudged to the purchased without any additional.
Article 44 Slaves fourteen (14) years old, and from this age up to sixty (60), who are settled on lands and plantations, and are at present working on them, shall not be liable to seizure for debt, except for what may be due out of the purchase money agreed to be paid for them unless said grounds or plantations should be distressed, and seized and judicial sale of a real estate, without including the slaves of the aforesaid age who are part of said estate, shall be deemed null and void.
Article 45, 46, 47, 48, and 49 are relative to certain formalities to be observed in judicial proceedings
Article 50 Masters, when twenty-five (25) years old; shall have the power to manumit their slaves, either by testamentary dispositions, or by acts inter vivace, but as there may be mercenary masters disposed to set a price on the liberation of their slaves; and thereas slaves with a view to acquire the necessary means to purchase their freedom, may be tempted to commit theft or deeds of plunder, no mitter to set free his slaves, without the obtaining from the Superior Council a decree of permission to that effect; which permission shall be granted without costs when the motive for the setting free of said slaves as specified in the petition of the master, shall, appear legitimate to the tribunal. All future acts for the emancipation of the slaves freed shall not be entitled to their freedom; they shall be taken away from their former masters, and confiscated for the benefit of the India Company.
Article 51 However, should slaves be appointed by their masters tutors to their children, said slaves shall be held and regarded as being set free to all intent and purposes.
Article 52 We declare that the acts for the enfranchisement of slaves, passed according to the forms above described, shall be equivalent to an act of naturalization, when said slaves are not born in our colony of Louisiana, and they shall enjoy all the rights and privileges inherent to our subjects born in our kingdoms, or any land or colony under our dominion. We declare, however, that all manumitted slaves, and all free-born Negroes are incapable of receiving donations, either by testamentary dispositions or by acts inter vivos from the “Whites”. Said donations shall be null and void, and the objects of said donations shall be applied to the benefits of the nearest hosptal.
Article 53 We commend all manumitted slaves to show the profoundest respect to their former masters, to their widows and children, and any injury or insult offered by said manumitted slaves to their formar masters, their widows or children, shall be punished with more severity than if it had been offered to any other person. We, however declared them exempt from the discharge of all duties or sevices, and from payment of all taxes or fees, or any thing else in relation to their persons, or to their personal or real estate, either during the life or after the death of said slave.
Article 54 We grant manumitted slaves the same rights, privileges, and immunities which are enjoyed by free born persons. It is our pleasure that their merit in having acquired their freedom, shall produce in their favor not only with regards to their persons, but also to their property, the same effects which our other subjects derive from the happy circumstances of their having been born free.
In the name of the King
Fazende, Brusle, Perry Bienville, De la Graise
March, 1724
The Irish were treated harshly as well, but they were not stripped, and that is why they know they are Irish today. Even today in Spain there is now a group of Moorish descendants referred to as Afro-Spanish whereas these people are Moors by birth rite, their Moorish Ancestors were shipped by Spaniards and Portuguese traffickers as Negros and Latinos to the Spanish American colonies, where they were ultimately stripped of their names and heritage, many of the descendants of those Moors who were stripped have returned to Al Andalus now Spain and Portugal from the Spanish American colonies (Angola, Brazil, Cameroon, Cape Verde, Colombia, Cuba, Dominican Republic, Ecuador, Equatorial Guinea) and are now referred to as Afro Spaniards which is defined as Spanish nationals of black-African descent, interestingly enough Afro American were the pre-cursor to African American (a racial synonym for Black and Negroe in the U.S.A.) which is defined as Black and Negroe. Most are not aware that the term Moor is older than the term African and that the term African is a term that does originate with the Ancient Romans via the province of Africa they established as a result of the Punic Wars in what we know to day as North Africa, the continent was known as Mauretania and Libya prior to the end of the Punic Wars. Ethnolinguistic wise Black, Negroe, Colored, Latino language wise are Exonyms or xenonyms (from the Greek: á¼Î¾Ï, éxÅ, out or ξÎνοÏ-, xénos, foreign andá½Î½Î¿Î¼Î±, ónoma, name) is the name given to an ethnic group or to a geographical entity by another ethnic group, often derogatory or offensive. Exonyms and endonyms can be names of places (toponym), ethnic groups (ethnonym), languages (glossonym), or individuals (personal name)
The reason the Slave Traders listed Moors as Negroes, Blacks, Coloreds Latinos etc, was specifically for purposes of circumventing treaties that recognized Moors on the footing with all other recognized Nation which resulted in recognizing them as Humans and party to the Families of Nations. We Moors have been fighting against the Negro and Black Badges of Slavery for generations. For Example: Africans who identified themselves as Moors in 1790 Petitioned the South Carolina Legislatures as Subjects of the Emperor of Morocco; and residents in South Carolina, praying that in case they should Commit Any Fault amenable to be brought to Justice, that they as Subjects to a Prince in Alliance with the United States of America, may be tried under the same Laws as the Citizens of this State would be liable to be tried, and not under the Negro Act, which was received and read. Some years past had the misfortune while fighting in the defense of their Country, to be captured with their wives and made prisoners of War by one of the Kings of Africa.
THE CONCEPT OF LATINO IS RACIST
Remember that there is no such thing as a “Latin” nation, race, or ethnic group—there is only the racist colonial term of “Latin America” (“Latino” just means Latin in Spanish) which refers to the colonialists and the colonial possessions of the Europeans of southern Europe (Spaniards, Portuguese, and French) in the “Western Hemisphere” (our land). The only thing “Latin” about our land is the 500 years of racist colonialism that has killed 95% of our population, and the theft of our land and its wealth.
“Latino” denies us our true Nican Tlaca (Indigenous) identity and heritage. It keeps us slaves to European interests and Spaniard culture.
Collectively, we have no Latin genealogy, Latin blood group, Latin history, or a common Latin culture of food or mythology.
The “Latino” labeling of our people is a colonialist-racist act of Genocide—an attempt to “kill off” our people’s true identity, history, independence, and our rights to our land and its wealth. Notice how this is not about “Latino Americans” in the U.S. This is about all of the “Spanish speaker” European Spaniards and their colonies of Nican Tlaca and Africans in the “Americas”. What they are in fact doing is separating us from our Anahuac Heritage (Mexican and “Central American” Nican Tlaca identity and history) and enslaving us to their needs.
THE CONCEPT OF HISPANIC
is even more racist than “Latino” because it completely denies us our true Nican Tlaca heritage by not even referring to our colonized condition of being in “Latin America”. We now become direct possessions of Spaniards. This is an attempt (successful so far) to actively reactivate the Spanish colonial empire through their colonials on our land. The media is their main tool in this parasitic renewed colonialist machine of the European Spaniards.
A side note: A Mixed-blood is not a Criollo or a European.
WE DECLARE INDEPENDANCE FROM
Spaniards, Europeans, And Their Squatter Descendants On Our Land Who Force Their Eurocentric, Racist, & Anti-Indigenous “Hispanic” & “Latino” Labels On Our People!
Eurocentric, Racist, & Anti-Indigenous Cuban-Miami Television & Mexico City Criollos (White People) Who Control Our Knowledge, Identity & Future!
Eurocentric, Racist, & Anti-Indigenous Concepts of “Mestizo” & “Raza” That Enslave Our People To European Interests & Identities!
The Europeans And Their Descendants Who Have Denied Us The Beauty Of Our True Anahuac Heritage And The Ownership Of The Wealth Of Our Land!
20 MAJOR CRIMES OF THE EUROPEANS
1) THEFT OF OUR LAND was the initial crime of the Europeans. We did not ever give up the ownership of our land, nor did we ever invite Europeans onto our lands.
2) DECEIT AND DISHONOR by Europeans (along with the violation of our laws) and their unethical and immoral behavior, were what brought about their taking of our land, the genocide of our people, the enslavement of our remaining population, and all of their uncountable crimes against us.
3) RACIST TERRORISM has been the European method that was used to shock us into submitting to their control of our land and our lives.
4) PIRACY (looting, taking what is not yours to take) has been the European profession of choice by which they stole our people’s wealth of precious jewels, gold, silver, and other valuables, along with the wealth of our land.
5) VANDALISM has been another signature of European barbaric assaults on our civilization and culture. This defacement was done upon our physical landscape and upon the psychological well-being of our people.
6) KIDNAPPING of our people (as a prelude to extortion and /or enslavement) has been a violation of all nations’ sense of decency, law, and civilized behavior.
7) EXTORTION (usually for gold) from our lands has been another favorite crime of the Europeans. They mostly killed their victims, even when ransom was paid.
8) MURDER OF OUR LEADERS was a peculiarly vicious and dishonorable ongoing crime of Europeans. This crime exhibited the total failure of a sense of honor amongst the Europeans. Deceit was usually involved in the murder of our leaders.
9) MASSACRES of unarmed civilian men, women, and children on our lands. This at first happened in the dozens, then hundreds, and eventually it led to routine slaughters in the thousands.
10) GENOCIDE of our people became possible when they discovered that they had built-in biological weapons of mass destruction in their bodies’ exposure to smallpox and other diseases—for which we had no immune defenses. They used this biological weapon which was 90 to 98% effective in killing us.
11) TORTURE AND MUTILATION was initially used to get us to surrender all gold objects to Europe. This technique was later used by the church to force conversions and to get confessions out of our people.
12) GRAVE ROBBERY has been an ongoing habit of Europeans from the beginning. This was a way of quickly stealing wealth that was not guarded.
13) ENSLAVEMENT OF OUR PEOPLE to do the work that they were too lazy to do themselves, has been another nasty European habit.
14) DESTRUCTION OF CITIES to take away our pride in our heritage, has been an almost totally successful European crime.
15) BURNING LIBRARY BOOKS in the tens of thousands by Europeans, has been one of the most devastating crimes that can never be mended or reconstructed.
16) UNIVERSITIES & SCHOOLS DESTROYED as a means of enslaving us to ignorance and to serving the interests of Europeans.
17) RACIAL RAPE of our people defiled us as a nation and tainted our people with the filth of their racism that says: More European blood is better.
18) CULTURAL CASTRATION in which laws were decreed that prohibited our people from learning our own culture, our languages, or even the simplicity of having our true names and identity.
19) PROHIBITION OF OUR THEOLOGY which forced the hypocritical version of Christianity on our people.
20) CONTINUATIONS OF THESE CRIMES up to the present day without guilt, reparations, or the “reality thought” that Europeans were in any way evil or monstrous in their actions.
1886. . . . .138 1896. . . . .131
1887. . . . .122 1897. . . . .166
1888. . . . .142 1898. . . . .127
1889. . . . .176 1899. . . . .107
1890. . . . .127 1900. . . . .115
1891. . . . .192 1901. . . . .135
1892. . . . .235 1902. . . . .96
1893. . . . .200 1903(to Sept. 14,
eight and a half months). . . . .76
1894. . . . .190
Total lynchings. Whites. Negroes. In the South. In the North.
1900. . . . . . . 115 8 107 107 8
1901. . . . . . . 135 26 107 121 14
1902. . . . . . . . 96 9 86 87 9
1903(to Sept. 14). . . . .76 13 63 66 10
Causes Assigned. 1900 1901.* 1902.† 1903.
Murder 39 39 37 32
Rape 18 19 19 8
Attempted rape 13 9 11 5
Race prejudice 10 9 2 3
Assaulting whites 6 – 3 3
Threats to kill 5 – 1 –
Burglary 4 1 – –
Attempt to murder 4 9 4 6
Informing 2 – – –
Robbery 2 “Theft” 12 1 –
Complicity in murder 2 6 3 5
Rape and murder – – – 1
Suspicion of murder 2 3 1 3
Suspicion of robbery 1 – – –
No offence 1 – – –
Arson 2 4 – –
Suspicion of arson 1 – – –
Aiding escape of murderer 1 – 1 –
Insulting a white woman – 1 – –
Cattle and horse stealing – 7 1 –
Quarrel over profit-sharing – 5 – –
Suspicion of rape – 1 – –
Suspicion of rape and murder – 1 – –
Unknown offences 2 6 – 4
Mistaken identity – 1 1 3
NOTE.—The lynchings in the various States and Territories in 1900 were as follows:
Alabama 8 New York 0
Arkansas 6 Nevada 0
California 0 North Carolina 3
Colorado 3 North Dakota 0
Connecticut 0 Ohio 0
Delaware 0 Oregon 0
Florida 9 Pennsylvania 0
Georgia 16 Rhode Island 0
Idaho 0 South Carolina 2
Illinois 0 South Dakota 0
Indiana 3 Tennessee 7
Iowa 0 Texas 4
Kansas 2 Vermont 0
Kentucky 1 Virginia 6
Louisiana 20 West Virginia 2
Maine 0 Wisconsin 0
Maryland 1 Washington 0
Massachusetts 0 ! Wyoming 0
Michigan 0 Arizona 0
Minnesota 0 District of Columbia 0
Mississippi 20 New Mexico 0
Missouri 2 Utah 0
Montana 0 Indian Territory 0
Nebraska 0 Oklahoma 0
New Jersey 0 Alaska 0
New Hampshire 0
* In 1901 one Indian and one Chinaman lynched. † In 1902 one Indian lynched.
From these tables certain facts may be deduced. The first is that, in the year of which an analysis is given (1900), over nine-tenths of the lynchings occurred in the South, where only about one-third of the population of the country were, but where nine- tenths of the negroes were; secondly, that, of these lynchings, about nine-tenths were of negroes and one-third were in the three States where the negroes are most numerous; thirdly, that, while the lynchings appear to be diminishing at the South, the ratio, at least, is increasing at the North.
It further appears that, though lynching began as a punishment for assault on white women, it has extended until less than one-fourth of the instances are for this crime, while over three-fourths of them are for murder, attempts at murder, or some less heinous offence. This may be accounted for, in part, by the fact that the murders in the South partake somewhat of the nature of race-conflicts.
Over 2,700 lynchings in eighteen years are enough to stagger the mind. Either we are relapsing into barbarism, or there is some terrific cause for our reversion to the methods of mediaevalism, and our laws are inefficient to meet it. The only gleam of light is that, of late years, the number appears to have diminished.
To get at the remedy, we must first get at the cause.
Time was when the crime of assault was unknown throughout the South. During the whole period of slavery, it did not exist, nor did it exist to any considerable extent for some years after Emancipation. During the War, the men were away in the army, and the negroes were the loyal guardians of the women and children. On isolated plantations and in lonely ! neighbor hoods, women were as secure as in the streets of Boston or New York.
Then came the period and process of Reconstruction, with its teachings. Among these was the teaching that the negro was the equal of the white, that the white was his enemy, and that he must assert his equality. The growth of the idea was a gradual one in the negro’s mind. This was followed by a number of cases where members of the negro militia ravished white women; in some instances in the presence of their families.*[A]
The result of the hostility between the Southern whites and Government at that time was to throw the former upon their own acts for their defence or revenge, with a consequent training in lawless punishment of acts which should have been punished by law. And here lynching had its evil origin.
It was suggested some time ago, in a thoughtful paper read by Professor Wilcox, that a condition something like this had its rise in France during the religious wars.
The first instance of rape, outside of these attacks by armed negroes, and of consequent lynching, that attracted the attention of the country was a case which occurred in Mississippi, where the teaching of equality and of violence found one of its most fruitful fields. A negro dragged a woman down into the woods, and tying her, kept her bound there a prisoner for several days, when he butchered her. He was caught and was lynched.
With the resumption of local power by the whites came the temporary and partial ending of the crimes of assault and of lynching.
As the old relation, which had survived even the strain of Reconstruction, dwindled with the passing of the old generation from the stage, and the “New Issue” with the new teaching took its place, the crime broke out again with renewed violence. The idea of equality began to percolate more extensively among the negroes. In evidence of it is the fact that since the assaults began again they have been chiefly directed against the plainer order of people, instances of ! attacks on women of the upper class, though not unknown, being of rare occurrence.*[B]
Conditions in the South render the commission of this crime peculiarly easy. The white population is sparse, the forests are extensive, the officers of the law distant and difficult to reach; but, above all, the negro population has appeared inclined to condone the fact of mere assault.
Twenty-five years ago, women went unaccompanied and unafraid throughout the South, as they still go throughout the North. To-day, no white woman, or girl, or female child, goes alone out of sight of the house except on necessity; and no man leaves his wife alone in his house, if he can help it. Cases have occurred of assault and murder in broad day, within sight and sound of the victim’s home. Indeed, an instance occurred not a great while ago in the District of Columbia, within a hundred yards of a fashionable drive, when, about three o’clock of a bright June day, a young girl was attacked within sight and sound of her house, and when she screamed her throat was cut. So near to her home was the spot that her mother and an officer, hearing her cries, reached her before life was extinct.
For a time, the ordinary course of the law was, in the main, relied on to meet the trouble; but it was found that, notwithstanding the inevitable infliction of the death penalty, several evils resulted therefrom. The chief one was that the ravishing of women, instead of diminishing, steadily increased. The criminal, under the ministrations of his preachers, usually professed to have “gotten religion,” and from the shadow of the gallows called on his friends to follow him to glory. So that the punishment lost to these emotional people much of its deterrent force, especially where the real sympathy of the race was mainly with the criminal rather than with his victim. Another evil was the dreadful necessity of calling on the innocent victim, who, if she survived, as she rarely did, was already bowed to the earth by shame, to relate in public! the sto ry of the assault–an ordeal which was worse than death. Yet another was the delay in the execution of the law. With these, however, was one other which, perhaps, did more than all the rest together to wrest the trial and punishment from the Courts and carry them out by mob-violence. This was the unnamable brutality with which the causing crime was, in nearly every case, attended. The death of the victim of the ravisher was generally the least of the attendant horrors. In Texas, in Mississippi, in Georgia, in Kentucky, in Colorado, as later in Delaware, the facts in the case were so unspeakable that they have never been put in print. They could not be put in print. It is these unnamable horrors which have outraged the minds of those who live in regions where they have occurred, and where they may at any time occur again, and, upsetting reason, have swept from their bearings cool men and changed them into madmen, drunk with the lust of revenge.
Not unnaturally, such barbarity as burning at the stake has shocked the sense of the rest of the country, and, indeed, of the world. But it is well for the rest of the country, and for the world, to know that it has also shocked the sense of the South, and, in their calmer moments, even the sense of those men who, in their frenzy, have been guilty of it. Only, a deeper shock than even this is at the bottom of their ferocious rage—the shock which comes from the ravishing and butchery of their women and children.
It is not necessary to be an apologist for barbarity because one states with bluntness the cause. The stern underlying principle of the people who commit these barbarities is one that has its root deep in the basic passions of humanity; the determination to put an end to the ravishing of their women by an inferior race, no matter what the consequence.
For a time, a speedy execution by hanging was the only mode of retribution resorted to by the lynchers; then, when this failed of its purpose, a more savage method was essayed, born of a! savage fury at the failure of the first, and a stern resolve to strike a deeper terror into those whom the other method had failed to awe.
The following may serve as an illustration. Ten or twelve years ago, the writer lectured one afternoon in the early spring in a town in the cotton-belt of Texas–one of the prettiest towns in the Southwest. The lecture was delivered in the Court-house. The writer was introduced by a gentleman who had been a member of the Confederate Cabinet and a Senator of the United States, and the audience was composed of refined and cultured people, representing, perhaps, every State from Maine to Texas.
Two days later, the papers contained the account of the burning at the stake in this town of a negro. He had picked up a little girl of five or six years of age on the street where she was playing in front of her home, and carried her off, telling her that her mother had sent him for her; and when she cried, he had soothed her with candy which, with deliberate prevision, he had bought for the purpose. When she was found, she was unrecognizable. With her little body broken and mangled, he had cut her throat and thrown her into a ditch.
A strong effort was made to save him for the law, but without avail: the people had reverted to the primal law of vengeance. Farmers came from fifty miles to see that vengeance was exacted. They had resolved to strike terror into the breasts of all, so that such a crime could never occur again. This was, perhaps, the second or third instance of burning in the country.
Of late, lynching at the stake has spread beyond the region where it has such reason for existence as may be given by the conditions that prevail in the South. Three frightful instances by burning have occurred recently in Northern States, in communities where some of these conditions were partly wanting. The horror of the main fact of lynching was increased, in two of the cases, by a concerted attack on a large element of the negro population which was wholly i! nnocent. Even the unoffending negroes were driven from their homes, a consequence which has never followed in the South, where it might seem there was more occasion for it.
It thus appears that the original crime, and also the consequent one in its most brutal form, are not confined to the South, and, possibly, are only more frequent there because of the greater number of negroes in that section. The deep racial instincts are not limited by geographical bounds.
These last-mentioned lynchings were so ferocious, and so unwarranted by any such necessity, real or fancied, as may be thought to exist at the South by reason of the frequency of assault and the absence of a strong police force, that they not unnaturally called forth almost universal condemnation. The President felt it proper to write an open letter, commending the action of the Governor of Indiana on the proper and efficient exercise of his authority to uphold the law and restore order in his State. But who has ever thought it necessary to commend the Governors of the Southern States under similar circumstances? The militia of some of the Southern States are almost veterans, so frequently have they been called on to protect wretches whose crimes stank in the nostrils of all decent men. The Governor of Virginia boasted, a few years ago, that no lynching should take place during his incumbency, and he nearly made good his boast; though, to do so, he had to call out at one time or another almost the entire force of the State.
Editorials in some of the Eastern papers note with astonishment recent instances where law-officers in the South have protected their prisoners or eluded a mob. The writers of these editorials know so little of the South that one is scarcely surprised at their ignorance. But men are hanged by law for this crime of assault every few months in some State in the South. A few years ago, Sheriff Smith, of Birmingham, protected a murderer at the cost of many lives; a little later, Mayor Prout, of Roanoke, defended a n! egro rav isher and murderer, and, though the mob finally succeeded in their aim, six men were killed by the guards before the jail was carried. These are only two of the many instances in which brave and faithful officers have, at the risk of their lives, defended their charges against that most terrible of all assailants—a determined mob.*
*The following table is from the Chicago Tribune. The number of legal executions in 1900 was 118, as compared with 131 in 1899, 109 in 1898, 128 in 1897, 122 in 1896, 132 in 1895, 132 in 1894, 126 in 1893, and 107 in 1892. The executions in the several States and Territories were in 1900 as follows:
Alabama 4 New York 3
Arkansas 0 Nevada 0
California 5 North Carolina 9
Colorado 0 North Dakota 1
Connecticut 1 Ohio 1
Delaware 0 Oregon 1
Florida 1 Pennsylvania 15
Georgia 14 Rhode Island 0
Idaho 2 South Carolina 3
Illinois 0 South Dakota 0
Indiana 0 Tennessee 4
Iowa 0 Texas 18
Kansas 0 Vermont 0
Kentucky 0 Virginia 7
Louisiana 6 West Virginia 0
Maine 0 Wisconsin 0
Maryland 3 Wyoming 0
Massachusetts 0 Washington 2
Michigan 0 Arizona 4
Minnesota 0 District of Columbia 3
Mississippi 1 New Mexico 0
Missouri 3 Utah 0
Montana 3 Indian Territory 0
Nebraska 0 Oklahoma 0
New Jersey 4 Alaska 0
New Hampshire 0
There were 80 hanged in the South and 39 in the North, of whom 60 were whites, 58 were blacks, and one a Chinaman. The crimes for which they were executed were: murder, 113; rape, 5; arson, 1. Thus, of the 119 hangings, about two-thirds (80) were in the South and one-third (39) in the North; about one-half (60) of the entire number were of whites, and one-half (58) were of blacks. So, the South appears to have done its part in the matter of punishing by law as well as by violence.
For a time, the assaults by negroes were confined to young women who were caught alone in solitary and secluded places. The company even of a child was sufficient to protect ! them. Th en the ravishers grew bolder, and attacks followed on women when they were in company. And then, not content with this, the ravishers began to attack women in their own homes. Sundry instances of this have occurred within the last few years. As an illustration, may be cited the notorious case of Samuel Hose, who, after making a bet with a negro preacher that he could have access
to a white woman, went into a farmer’s house while the family, father, mother, and child, were at supper; brained the man with his axe; threw the child into a corner with a violence which knocked it senseless, and ravished the wife and mother with unnamable horrors, butchered her and bore away with him the indisputable proof of having won his wager. He was caught and was burnt.
Another instance, only less appalling, occurred two years ago in Lynchburg, Virginia, where the colored janitor of a white female school, who had been brought up and promoted by the Superintendent of Schools, and was regarded as a shining example of what education might accomplish with his race, entered the house of a respectable man one morning, after the husband, who was a foreman in a factory, had gone to his work; and ravished the wife, and then putting his knee on her breast, coolly cut her throat as he might have done a calf’s. There was no attempt at lynching; but the Governor, resolved to preserve the good name of the commonwealth, felt it necessary to order out two regiments of soldiers, in which course he was sustained by the entire sentiment of the State.
These cases were neither worse nor better than many of those which have occurred in the South in the last twenty years, and in that period hundreds of women and a number of children have been ravished and slain.
Now, how is this crime of assault to be stopped? For stopped it must be, and stopped it will be, whatever the cost. One proposition is that separation of the races, complete separation, is the only remedy. The theory appears Utopian. Colonization has been! the dre am of certain philanthropists for a hundred years. And, meantime, the negroes have increased from less than a million to nine millions. They will never be deported; not because we have not the money, for an amount equal to that spent in pensions during three years would pay the expenses of such deportation, and an amount equal to that paid in six years would set them up in a new country. But the negroes have rights; many of them are estimable citizens; and even the body of them, when well regulated, are valuable laborers. It might, therefore, as well be assumed that this plan will never be carried out, unless the occasion becomes so imperative that all other rights give way to the supreme right of necessity.
It is plain, then, that we must deal with the matter in a more practicable manner, accepting conditions as they are, and applying to them legal methods which will be effective. Lynching does not end ravishing, and that is the prime necessity. Most right- thinking men are agreed as to this. Indeed, lynching, through lacking the supreme principle of law, the deliberateness from which is supposed to come the certainty of identification, fails utterly to meet the necessity of the case even as a deterrent. Not only have assaults occurred again and again in the same neighborhood where lynching has followed such crime; but, a few years ago, it was publicly stated that a negro who had just witnessed a lynching for this crime actually committed an assault on his way home. However this may be, lynching as a remedy is a ghastly failure; and its brutalizing effect on the community is incalculable.
The charge that is often made, that the innocent are sometimes lynched, has little foundation. The rage of a mob is not directed against the innocent, but against the guilty; and its fury would not be satisfied with any other sacrifices than the death of the real criminal. Nor does the criminal merit any consideration, however terrible the punishment. The real injury is to the perpetrators of the crime ! of destr oying the law, and to the community in which the law is slain.[C]
It is pretty generally conceded that the “law’s delay” is partly responsible for the “wild justice” of mob vengeance, and this has undoubtedly been the cause of many mobs. But it is far from certain if any change in the methods of administration of law will effect the stopping of lynching; while to remedy this evil we may bring about a greater peril. Trial by jury is the bed-rock of our liberties, and the inherent principle of such trial is its deliberateness. It has been said that the whole purpose of the Constitution of Great Britain is that twelve men may sit in the jury-box. The methods of the law may well be reformed; but any movement should be jealously scanned which touches the chief barrier of all liberty. The first step, then, would appear to be the establishment of a system securing a reasonably prompt trial and speedy execution by law, rather than a wholesome revolution of the existing system.
Many expedients have been suggested; some of the most drastic by Northern men. One of them proposed, not long since, that to meet the mob–spirit, a trial somewhat in the nature of a drum-head court-martial might be established by law, by which the accused may be tried and, if found guilty, executed immediately. Others have proposed as a remedy emasculation by law; while a Justice of the Supreme Court has recently given the weight of his personal opinion in favor of prompt trial and the abolishment of appeals in such cases. Even the terrible suggestion has been made that burning at the stake might be legalized!
These suggestions testify how grave the matter is considered to be by those who make them.
But none of these, unless it be the one relating to emasculation, is more than an expedient. The trouble lies deeper. The crime of lynching is not likely to cease until the crime of ravishing and murdering women and children is less frequent than it has been of late. And this crime, which is will-nigh wholly con! fined to the negro race, will not greatly diminish until the negroes themselves take it in hand and stamp it out.
From recent developments, it may be properly inferred that the absence of this crime during the period of Slavery was due more to the feeling among the negroes themselves than to any repressive measures on the part of the whites. The negro had the same animal instincts in Slavery that he exhibits now; the punishment that follows the crime now is as certain, as terrible, and as swift as it could have been then. So, to what is due the alarming increase of this terrible brutality?
To the writer it appears plain that it is due to two things: first, to racial antagonism and to the talk of social inequality, from which it first sprang, that inflames the ignorant negro, who has grown up unregulated and undisciplined; and, secondly, to the absence of a strong restraining public opinion among the negroes of any class, which alone can extirpate the crime. In the first place, the negro does not generally believe in the virtue of women. It is beyond his experience. He does not generally believe in the existence of actual assault. It is beyond his comprehension. In the next place, his passion, always his controlling force, is now, since the new teaching, for the white woman.*[D]
That there are many negroes who are law-abiding and whose influence is for good, no one who knows the worthy members of the race, those who represent the better element, will deny. But while there are, of course, notable exceptions, they are not often of the “New Issue,” nor even generally among the prominent leaders: those who publish papers and control conventions.
As the crime of rape had its baleful origin in the teaching of equality and the placing of power in the ignorant negroes’ hands, so its perpetration and increase have undoubtedly been due in large part to the same teaching. The intelligent negro may understand what social equality truly means; but to the ignorant and brutal young negro, it ! signifie s but one thing: the opportunity to enjoy, equally with white men, the privilege of cohabiting with white women. This the whites of the South understand; and if it were understood abroad, it would serve to explain some things which have not been understood hitherto. It will explain, in part, the universal and furious hostility of the South to even the least suggestion of social equality.
A close following of the instances of rape and lynching, and the public discussion consequent thereon, has led the writer to the painful realization that even the leaders of the negro race–at least, those who are prominent enough to hold conventions and write papers on the subject–have rarely, by act or word, shown a true appreciation of the enormity of the crime of ravishing and murdering women. Their discussion and denunciation have been almost invariably and exclusively devoted to the crime of lynching. Underlying most of their protests is the suggestion, that the victim of the mob is innocent and a martyr. Now and then, there is a mild generalization on the evil of lawbreaking and the violation of women; but, for one stern word of protest against violating women and cutting their throats, the records of negro meetings will show many against the attack of the mob on the criminal. And, as to any serious and determined effort to take hold of and stamp out the crime that is blackening the entire negro race to- day, and arousing against them the fatal and possibly the undying enmity of the stronger race, there is, with the exception of the utterances of a few score individuals like Booker Washington, who always speaks for the right, Hannibal Thomas and Bishop Turner, hardly a trace of such a thing. A crusade has been preached against lynching, even as far as England; but none has been thought of against the ravishing and tearing to pieces of white women and children.
Happily, there is an element of sound-minded, law-abiding negroes, representative of the old negro, who without parade stand for good order! , and do what they can to repress lawlessness among their people. But for this class and the kindly relations which are preserved between them and the whites, the situation in the South would long since have become unbearable. These, however, are not generally among the leaders, and, unfortunately, their influence is not sufficiently extended to counteract the evil influences which are at work with such fatal results.
One who reads the utterances of negro orators and preachers on the subject of lynching, and who knows the negro race, cannot doubt that, at bottom, their sympathy is generally with the “victim” of the mob, and not with his victim.
Until the negroes shall create among themselves a sound public opinion which, instead of fostering, shall reprobate and sternly repress the crime of assaulting women and children, the crime will never be extirpated, and until this crime is stopped the crime of lynching will never be extirpated. Lynching will never be done away with while the sympathy of the whites is with the lynchers, and no more will ravishing be done away with while the sympathy of the negroes is with the ravisher. When the negroes shall stop applying all their energies to harboring and defending negroes, no matter what their crime so it be against the whites, and shall distinguish between the law-abiding negro and the law-breaker, a long step will have been taken.
Should the negroes sturdily and faithfully set themselves to prevent the crime of rape by members of that race, it could be stamped out. Should the whites set themselves against lynching, lynching would be stopped. The remedy then is plain. Let the negroes take charge of the crime of ravishing and firmly put it away from them, and let the whites take charge of the crime of lynching and put it away from them. It is time that the races should address themselves to the task; for it is with nations as with individual men; whatsoever they sow that shall they also reap.
It is the writer’s belief that the arrest and ! the prom pt handing over to the law of negroes by negroes, for assault on white women, would do more to break up ravishing, and to restore amicable relations between the two races, than all the resolutions of all the Conventions and all the harangues of all the politicians.
It has been tried in various States to put an end to lynching by making the county in which the lynching occurs liable in damages for the crime. It is a good theory; and, if it has not worked well, it is because of the difficulty of executing the provision. Could some plan be devised to array each race against the crime to which it is prone, both rape and lynching might be diminished, if not wholly prevented.
The practical application of such a principle is difficult, but, perhaps, it is not impossible. It is possible that in every community negroes might be appointed officers of the law, to look exclusively after lawbreakers of their own race. The English in the East manage such matters well, under equally complicated and delicate conditions. For example, in the Island of Malta, where the population are of different classes among whom a certain jealousy exists, there are several classes of police: the naval police, the military police, and the civil or municipal police. To each of these is assigned more especially the charge of one of the three classes of whom the population of the Island is composed. Again, in Hong Kong, where the situation is even more delicate, there are several classes of police: the English, the Chinese, and the Indian police. Only the first are empowered to make general arrests; the others have powers relating exclusively to the good order of the races to which they belong, though they may in all cases be called in to assist the English police.
Somewhat in the same way, the negroes might be given within their province powers sufficiently full to enable them to keep order among their people, and they might on the other hand be held to a certain accountability for such good order. It might even be ! required that every person should be listed and steadily kept track of, as is one in Germany at present. The recent vagrant laws of Georgia, where there are more negroes than in the entire North, are an attempt in this direction.
In the same way, the white officials charged with the good order of the county or town might be given enlarged powers of summoning posses, and might be held to a high accountability. For example, ipso facto forfeiture of the official bond and removal from office, with perpetual disability to hold any office again, might be provided as a penalty for permitting any persons to be taken out of their hands.
Few ravishings by negroes would occur if the more influential members of the race were held accountable for the good order of their race in every community; and few lynchings would occur, at least after the prisoners were in the hands of the officers of the law, if those officers, by the mere fact of relinquishing their prisoners should be disqualified from ever holding office again.
These suggestions may be as Utopian as others which have been made; but if they cannot be carried out, it is because the ravishings by negroes and the murders by mobs have their roots so deep in racial instincts that nothing can eradicate them, and in such case the ultimate issue will be a resort to the final test of might, which in the last analysis underlies everything.
That President Ulysses Grant was probably the first and only American President to be arrested, and that it was a Black District of Columbia policeman by the name of Officer William West who performed the deed in the 19th century. Officer West book the President for violating the district speeding law and for professionalism as an officer of the law, the President later on promoted Officer West to a mounted policeman. President Grant not want to be in the public eye as someone who is above the law.
KU KLUX KLAN (KKK) AND WHITE SUPREMACIST SITES:
Micetrap Distribution (Racist Music)
Moroccan African Moors Mulims First to America? Islam in America
Muslim Legacy in Early Americas – W. Africans, Moors tribal Terrorism
American History From About African-Amercian History The African African Americans Indians
The African-American Mosaic Exhibition (Library of Congress) Native Americans
The Gilder Lehrman Institute of American History America’s West – Development & History
American Indian Genealogy and Media Sites by Phil Konstantin American Indian History Resources
On This Date in North American Indian History by Phil Konstantin African Americans – Black Indians
American President: Presidential History Resources American President
The North Star: A Journal of African-American Religious History THE SLAUGHTER
Black Indians (Afro-Native Americans) American Women’s History: A Research Guide
Documents For The Study Of American History American Military History LYNCHINGS
American History, Page 1, Spanish Conquest of Native America American History Sites
Underground Railroad Empire of the Moors – African History – Origins of The Nation of Moorish Americans
Europe blackantiquity African Presence in the Americas 1492 – 1992 The 1700’s
http://www.phoenixmasonry.org/masonicmuseum/fraternalism/red_men.htm
http://www.abaris.net/freemasonry/marin_red_men.htm
The African Presence in the Americas many centuries before Columbus
http://www.abaris.net/freemasonry/marin_red_men.htm
Colonization: African-American Mosaic Exhibition
http://freepages.history.rootsweb.com/~shannara/Emblems/emblemidx.htm
Colonization Civil Rights AFRO-AMERICAN ALMANAC – African-American History Resource
Our Shared History, African American Heritage African American History: Welcome
www.martygrant.com/gen/origins.htm
Hitchhiker’s Guide to American History Popular Songs in American History VODOUN
American Cultural History – Decade 1920-1929 Center for History of Physics Home Page
The Avalon Project : Chronology of American History Money in North American History
American History Government African American History – Black History Resources – Academic Info
Colonial American History Social Studies Resources Historical Text Archive BLACK INDIANS
The Journal of the Moorish Paradigm First Nations Histories
LATIN AMERICA-COLONIAL ECONOMIC HISTORY NEVADA-19TH-CENTURY MINING HISTORY
Civil War American History 1860 1865 Timeline Battle Map Maps of Native American Nations, History, Info
1499 Amerigo Vespucci and Alonso de Hojeda sail for South America and reach mouth of Amazon
1502 Vespucci, after second voyage, concludes South America is not part of India and names it Mundus Novus.
1513 Balboa crosses Isthmus of Panama and reaches Pacific for the first time, but believes it to be part of the Indian Ocean.
1513 Ponce de Leon, searching for the “fountain of youth” reaches and names Florida.
1519 Cortes enters Tenochtitlan (Mexico City); Domenico de Pineda explores Gulf of Mexico from Florida to Vera Cruz.
1522 Andagoya discovers Peru
1523 Jamaica founded.
1531 Pizarro invades Peru, conquers Incas.
1535 Lima founded.
1536 Buenos Aires founded.
1538 Bogota founded.
1539 First printing press in New World set up in Mexico City.
1540 Grand Canyon discovered.
1541 De soto discovers Mississippi River; Coronado explores from New Mexico across Texas, Oklahoma, and eastern Kansas.
1549 Jesuit missionaries arrive in South America.
1551 Universities founded in Lima and Mexico City;
1565 ST. Augustine founded (razed by Francis Drake in 1586).
1567 Rio de Janeiro founded.
1605 Santa Fe, New Mexico founded (date in dispute; some say 1609).
Yes, amazing that so much important Black history (such as this) is hidden from us (Black and White). What makes this even worse is the fact that the current twist on history perpetuates and promotes white supremacy at the expense of Black Pride!
During my visit to France I saw the original Statue of Liberty. However, there was a difference…the statue in France is BLACK!!!!!!
“Ya learn something new everyday!”
The Statue of Liberty was originally a Black woman. But, as memory serves, it was because the model was Black. In a book called “The Journey of The Songhai People,” as Dr. Jim Haskins (a member of the National Education Advisory Committee of the Liberty-Ellis Island Committee, professor of English at the University of Florida, and prolific Black author) points out that is what stimulated the original idea for that 151 foot statue in the harbor. He says that the idea for the creation of the statue initially was to acknowledge the part that Black soldiers played in the ending of Black African Bondage in the United States.
It was created in the mind of the French historian Edourd de Laboulaye, Chairman of the French Anti-Slavery Society, who, together with sculptor Frederic Auguste Bartholdi, proposed to the French government that the people of France present to the people of the United States through the American Abolitionist Society, the gift of a Statue of Liberty in recognition of the fact that Black soldiers won the Civil War in the United States. It was widely known then that it was Black Soldiers who played the pivotal role in winning the war, and this gift would be a tribute to their prowess.
Suzanne Nakasian, director of the Statue of Liberty, Ellis Island Foundations’ National Ethnic Campaign said that the Black Americans’ direct connection to Lady Liberty is unknown to the majority of Americans, BLACK or WHITE.
When the statue was presented to the US. Minister to France in 1884, it is said that he remonstrated that the dominant view of the broken shackles would be offensive to the U.S. South because the statue was a reminder of Blacks winning their freedom. It was a reminder to a beaten South of the ones who caused their defeat, their despised former captives.
Documents of Proof:
1.) You may go and see the original model of the Statue of Liberty, with the broken chains at her feet and in her left hand. Go to the Museum of the City of NY, Fifth Avenue and 103rd Street (212) 534-1672 or call the same number and dial ext. 208 and speak to Peter Simmons and he can send you some documentation.
2.) Check with the N. Y. Times magazine, part II May 18, 1986.
3.) The dark original face of the Statue of Liberty can be seen in the N.Y. Post June 17, 1986, also the Post stated the reason for the broken chains at her feet.
4.) Finally, you may check with the French Mission or the French Embassy at the U.N. or in Washington, D.C. and ask for some original French material on the Statue of Liberty, including the Bartholdi original model. You can call (202) 944-6060 or 6400.
Please pass this information along! Be sure to send it to people with children! Open a dialog and discuss it with your friends! Let this be the beginning of your quest for the Truth about American History past and present!
19th Century
Organized polices forces as we know them today are a comparatively recent thing in U.S. history. Until the middle of the 19th century, the cities were usually guarded by what was called the “watch system”, meaning a handful of men who patrolled the streets during the night, sometimes calling out the time and the state of the weather.
The night watch system was noted for disorganization and inefficiency. Little was expected of it and it wasn’t considered an important service to deserve much money or attention. Watchmen were notorious for falling asleep or being drunk on the job.
1838
The first major change in this system came when Boston introduced a “DAY” watch, composed of six men, to compliment its night watch.
1844
New York City created a “Day and Night Police”, the first to combine both day and night watches into a single force. This was the forerunner of the modern city police, and its example was followed by many cities;
1851 Chicago
1852 Cincinnati and New Orleans
1854 Philadelphia and Boston
1857 Baltimore and Newark
By the 1870’s, virtually every major city in the U.S. had created an organized police force along the lines that are still the basis of most police organizations in this country.
What happened during this period that prompted this increase in police power?
The usual answer given by liberal police historians stresses the increasing population density and ethnic diversity in the cities that came with the beginning of massive immigration from the 1830’s onward. This explanation only scratches the surface and is basically misleading. Although increasing population and ethnic diversity were important features of this period, there is no reason why, in themselves, they should call forth greatly increased use of police force.
The basic social process going on from the 1830’s to the 1860’s was the beginning of industrial capitalism in the United States, and the emergence of the typical class structure that industrial capitalism creates.
Before this time, of course there were poor people in the cities: but capitalist industrialization dramatically increased their numbers, their visibility, and their militancy, and therefore increased the problems of “social control.”
Regional Police Department: Northeast/Midwest
Immigration from the American countryside and from overseas (at this time mainly from Ireland and Germany) provided a steady supply of cheap labor for the growing factories of the industrial Northeast and Midwest. Between 1810 and 1870, the number of factory workers in the U.S.; as a whole increased from about 75 thousand to about 2.5 million.
This early industrial work force was subject to harsh exploitation in the factories and grim living conditions in the growing slums of the industrial cities.
Militant conflict between workers and owners began on a large scale with the first stirrings of a significant American Labor Movement.
At the same time, rioting in the cities was common and rates of crime were high. The wealthy and powerful began to define working people and the unemployed poor as the “dangerous classes” and to demand more effective means of controlling and disciplining them.
They had an example available over seas since England had undergone the process of capitalist industrialization somewhat earlier, they also were the first to develop modern police forces, and most of the early U.S. police departments took their basic form from the London police , created in 183?
South/Southwest
The development of the police was somewhat different in the south and southwest. In the south, the early urban police forces were designed mainly to control slave and free blacks in the cities, and in the southwest the early police were developed in connection with the subordination of Mexicans and Native Americans, rather than an immigrant industrial working class.
What is revealed?
Brutality and unpredictability in behavior.
Although these early police forces were designed as
instruments of class domination
, they were generally ineffective instruments and were usually regarded as such. There were two main reasons for this;
1. The early police were
sometimes to close to the Classes and communities
they were suppose to Be controlling
2. When they were not, they relied almost entirely On the most primitive method of control,
BRUTE FORCE
Although designed to intimidate and control the “dangerous classes”, the police were usually recruited at least partly from those classes and were therefore unreliable often as enforcers of the interests of property and power. It’s doubtful that the police forces of many cities ever consistently represented the interests of the poor, but they were sometimes sympathetic with them to a significant extent. This became especially clear during some of the labor violence of the 1880’s, when several local police forces refused to intimidate strikers, and military troops had to be called in.
The development of the National Guard system, which took place between 1877 and 1892, was one result of this unreliability of the local police. Originally officered mainly by business and professional men, and sometimes directly subsidized by wealthy industrialists, the National Guard was specifically designed to be a more direct and therefore more reliable instrument of the wealthy and propertied.
Monday June 17, 2002
The GuardianItaly hailed the redress of a historic injustice yesterday after the US Congress recognised an impoverished Florentine immigrant as the inventor of the telephone rather than Alexander Graham Bell. Historians and Italian-Americans won their battle to persuade Washington to recognise a little-known mechanical genius, Antonio Meucci, as a father of modern communications, 113 years after his death.
The vote by the House of Representatives prompted joyous claims in Meucci’s homeland that finally Bell had been outed as a perfidious Scot who found fortune and fame by stealing another man’s work.
Calling the Italian’s career extraordinary and tragic, the resolution said his “teletrofono”, demonstrated in New York in 1860, made him the inventor of the telephone in the place of Bell, who had access to Meucci’s materials and who took out a patent 16 years later.
“It is the sense of the House of Representatives that the life and achievements of Antonio Meucci should be recognised, and his work in the invention of the telephone should be acknowledged,” the resolution stated.
Bell’s immortalisation in books and films has rankled with generations of Italians who know Meucci’s story. Born in 1808, he studied design and mechanical engineering at the Academy of Fine Arts in Florence, and as a stage technician at the city’s Teatro della Pergola developed a primitive system to help colleagues communicate.
In the 1830s he moved to Cuba and, while working on methods to treat illnesses with electric shocks, found that sounds could travel by electrical impulses through copper wire. Sensing potential, he moved to Staten Island, near New York City, in 1850 to develop the technology.
When Meucci’s wife, Ester, became paralysed he rigged a system to link her bedroom with his neighbouring workshop and in 1860 held a public demonstration which was reported in New York’s Italian- language press.
In between giving shelter to political exiles, Meucci struggled to find financial backing, failed to master English and was severely burned in an accident aboard a steamship.
Forced to make new prototype telephones after Ester sold his machines for $6 to a secondhand shop, his models became more sophisticated. An inductor formed around an iron core in the shape of a cylinder was a technique so sophisticated that it was used decades later for long- distance connections.
Meucci could not afford the $250 needed for a definitive patent for his “talking telegraph” so in 1871 filed a one-year renewable notice of an impending patent. Three years later he could not even afford the $10 to renew it.
He sent a model and technical details to the Western Union telegraph company but failed to win a meeting with executives. When he asked for his materials to be returned, in 1874, he was told they had been lost. Two years later Bell, who shared a laboratory with Meucci, filed a patent for a telephone, became a celebrity and made a lucrative deal with Western Union.
Meucci sued and was nearing victory – the supreme court agreed to hear the case and fraud charges were initiated against Bell – when the Florentine died in 1889. The legal action died with him.
Yesterday the newspaper La Repubblica welcomed the vote to recognise the Tuscan inventor as a belated comeuppance for Bell, a “cunning Scotsman” and “usurper” whose per- fidy built a communications empire.
From: EIngram517
Startling Facts…..
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
These facts are very interesting. Here are a few of the things learned at the Black Think Tank this week.
Facts:
1. The first Americans or native Americans going back to 13,000 BC were black! Look up the Folsom people who lived in Arizona.
2. Best reason to stop our use of the term African American and say Black. A white person who was born in Africa, who moves to America is an African American and qualifies for financial aid, etc., but will get the jobs/pay privileges afforded to whites.
3. Look up the Slavery Law of 1665 (which stayed in effect until 1968) and the Maryland Doctrine of Exclusion (1638): both laws state that blacks must be excluded from the benefits afforded whites and that blacks must remain noncompetitive with whites, except in sports and entertainment.
4. Two white men: Bill Gates and Larry Elision, combined have more wealth than the combined wealth of all 36 million blacks in America. Civil Rights did not change the economic landscape or the balance of power in America.
5. Asians received 80% of all government minority set aside contracts.
Hello!!!!!!!
6. Blacks eat more fish than whites by a four to one margin. For every dollar whites spend on fish, blacks spend nine dollars on fish. Fish sold wholesale for will retail at $2.50 –$3.00. Guess what business we should be in as Blacks?
7. There are no black owned national cable or major network television stations. The black woman who owns our only black owned radio stations, plans to sell to white owners after hearing the deal Bob Johnson received for selling BET. (Cathy Hughes is from OMAHA, ya’ll!)
8. There are no black owned companies on the Wall Street Stock Exchange where blacks own the majority or controlling interest of the stock.
9. 96% of all black inmates are men.
10. Over the next two years 440,000 black inmates will be released from prison. The State has no place to put them as they reenter society. Halfway house business!
11. In 1860, 98% of all Blacks in America worked for White people.2001, 98% of all Blacks in America still work for white people.
12. In 1860, blacks in America had a combined net worth of half of one percentage point. Guess what in 2001, after Civil Rights, Jesse Jackson, Oprah, Shaq, NAACP, and Urban League, our combined net worth is half a percentage point.
13. For every dollar earned by a Jewish person, that dollar touches 12-18 Jewish hands before it leaves their community. For every dollar earned by a black person it leaves the community soon as he or she earns it.
14. Last week in Washington, DC black teenagers where arrested and booked for eating McDonalds on the metro subway. Cops cited the recent 5-4 court decision as the permission to arrest lawbreakers even for minor offenses.
15. 67% of all hate crimes in America are against blacks. After we get through being pleased that we have carpet in our office, a secretary, our name on the door and make six figures, we do not own anything. What will happen if you miss six months of work without pay? All we have left our children is debt not an inheritance. You cannot pass welfare or food stamps onto our kids as a nest egg! We are not even in the race. By the way, the word “race” hit the English language in the 16th century when Europeans held a contest to see who will win the race to gather the most wealth through exploitation of blacks.
You must read Powernomics by Claude Anderson. This is our blueprint to create wealth, not just have a job, but be a business owner, so you can hire people, be listed on the stock exchange, develop businesses to meet our needs.
For information call 301-853-2465.Click Here: http://www.auser.org/tour.html”
African Centered Tour of Chocolate City
BOOKS by Anthony Browder3
1) From The Browder Files
2) Nile Valley Contributions To Civilization
3) Survival Strategies For African Americans
Washington, D.C. is significant because it was the first city, built in modern times, which was laid out on paper before construction began. The layout and design of the city was based on plans of city planning and temple orientation which were first developed in ancient Kemet (Egypt) and incorporated in the building of many cities in Europe. The founding fathers of the United States borrowed many aspects of Nile Valley symbolism and philosophy and incorporated them into the very fabric of the creation of this nation. Their intention was to recreate the spiritual essence of Egypt in the Americas. The African origins of architecture, symbolism and temple orientation are discussed during the tour. Also established is the African origins of Masonry and the Masonic influence on the development of the United States and the District of Columbia. The African Centered Tour of Washington, D.C. was designed by Tony Browder in 1986, after his travel to Egypt and realization that many symbols of ancient Africa were perpetuated in Washington, D.C. architecture. His tour, designed in part to ‘instill a sense of self-worth in black Americans about their heritage’, underscores the architectural and symbolic relationships between the Nation’s Capital and ancient Egypt. WASHINGTON, D.C. The sites visited include: DISCOVER AMERICA’S BEST KEPT SECRETS IN AN AFRICAN CENTERED TOUR OF WASHINGTON, D.C.
The sites visited include:
Meridian Hill Park
Scottish Rite Temple
The House of the Temple
Lafayette Park
The White House
The Lincoln Memorial
The Washington Monument
L’Enfant Plaza
The Library of Congress
The Capitol
This tour will reveal:
The Egyptian Origins of Architecture & Masonry
Sacred Architecture & Symbolism
The True Meaning of the Washington Monument
The Spiritual Significance of 16th Street
Masonic Influences on the Design of Washington, D.C.
A Symbolic Interpretation of Numbers
The Library of Congress & the African Origins of Mankind
Recommended Reading
RECOMMENDED READING. YOU CAME INTO THIS WORLD WITH ALL THAT YOU NEEDED TO KNOW IN ORDER TO FULFILL YOUR PURPOSE IN THIS LIFE BUT THE YEARS OF BULL SHIT HAVE TAKEN OVER YOUR MIND. THIS LIST WILL…
http://www.fearkiller.com/new_page_1.index.htm
Amendment ICongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Amendment XI
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
Amendment XII
The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state,
being twenty-one years of age
, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Amendment XV
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XVI
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
Amendment XVII
The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.
When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Amendment XVIII
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
Amendment XIX
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Amendment XX
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
Section 3.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission
Amendment XXI
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.
Amendment XXII
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.
Amendment XXIII
Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXV
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Amendment XXVI
Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
Amendment XXVII
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation
NO 1: Introduction by Alexander Hamilton
constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.This idea will add the inducements of philanthropy to those of patriotism, to heighten the solicitude which all considerate and good men must feel for the event. Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good. But this is a thing more ardently to be wished than seriously to be expected. The plan offered to our deliberations affects too many particular interests, innovates upon too many local institutions, not to involve in its discussion a variety of objects foreign to its merits, and of views, passions, and prejudices little favorable to the discovery of truth.
Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments; and the perverted ambition of another class of men, who will either hope to aggrandize themselves by the confusions of their country, or will flatter themselves with fairer prospects of elevation from the subdivision of the empire into several partial confederacies than from its union under one government.
It is not, however, my design to dwell upon observations of this nature. I am well aware that it would be disingenuous to resolve indiscriminately the opposition of any set of men (merely because their situations might subject them to suspicion) into interested or ambitious views. Candor will oblige us to admit that even such men may be actuated by upright intentions; and it cannot be doubted that much of the opposition which has made its appearance, or may hereafter make its appearance, will spring from sources, blameless at least, if not respectable- the honest errors of minds led astray by preconceived jealousies and fears. So numerous indeed and so powerful are the causes which serve to give a false bias to the judgment, that we, upon many occasions, see wise and good men on the wrong as well as on the right side of questions of the first magnitude to society. This circumstance, if duly attended to, would furnish a lesson of moderation to those who are ever so much persuaded of their being in the right in any controversy. And a further reason for caution, in this respect, might be drawn from the reflection that we are not always sure that those who advocate the truth are influenced by purer principles than their antagonists. Ambition, avarice, personal animosity, party opposition, and many other motives not more laudable than these, are apt to operate as well upon those who support as those who oppose the right side of a question. Were there not even inducements to moderation, nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties. For in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.
And yet, however just these sentiments will be allowed to be, we have already sufficient indications that it will happen in this as in all former cases of great national discussion. A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretence and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust.
On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of the government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.
In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth. You will, no doubt, at the same time, have collected from the general scope of them, that they proceed from a source not unfriendly to the new Constitution. Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness. I affect not reserves which I do not feel. I will not amuse you with an appearance of deliberation when I have decided. I frankly acknowledge to you my convictions, and I will freely lay before you the reasons on which they are founded. The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which
will not disgrace the cause of truth.
I propose, in a series of papers, to discuss the following interesting particulars:- The utility of the UNION to your political prosperity- The insufficiency of the present Confederation to preserve that Union- The necessity of a government at least equally energetic with the one proposed, to the attainment of this object- The conformity of the proposed Constitution to the true principles of republican government- Its analogy to your own State constitution- and lastly, The additional security which its adoption will afford to the preservation of that species of government to liberty, and to property.
In the progress of this discussion I shall endeavor to give a satisfactory answer to all the objections which shall have made their appearance, that may seem to have any claim to your attention. It may perhaps be thought superfluous to offer arguments to prove the utility of the UNION, a point, no doubt, deeply engraved on the hearts of the great body of the people in every State, and one, which it may be imagined, has no adversaries. But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole. *001 This doctrine will, in all probability, be gradually propagated, till it has votaries enough to countenance an open avowal of it. For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils, and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.
– PUBLIUS
It has until lately been a received and uncontradicted opinion, that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object. But politicians now appear, who insist that this opinion is erroneous, and that instead of looking for safety and happiness in union, we ought to seek it in a division of the States into distinct confederacies or sovereignties. However extraordinary this new doctrine may appear, it nevertheless has its advocates; and certain characters who were
much opposed to it formerly, are at present of the number. Whatever may be the arguments or inducements which have wrought this change in the sentiments and declarations of these gentlemen, it certainly would not be wise in the people at large to adopt these new political tenets without being fully convinced that they are founded in truth and sound policy.It has often given me pleasure to observe, that independent America was not composed of detached and distant territories, but that one connected, fertile, wide-spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a variety of soils and productions, and watered it with innumerable streams, for the delight and accommodation of its inhabitants. A succession of navigable waters forms a kind of chain round its borders, as if to bind it together; while the most noble rivers in the world, running at convenient distances, present them with highways for the easy communication of friendly aids, and the mutual transportation and exchange of their various commodities.
With equal pleasure I have as often taken notice, that Providence has been pleased to give this one connected country to one united people- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.
This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.
Similar sentiments have hitherto prevailed among all orders and denominations of men among us. To all general purposes we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection. As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.
A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had political existence; nay, at a time when their habitations were in flames, when many of their citizens were bleeding, and when the progress of hostility and desolation left little room for those calm and mature inquiries and reflections which must ever precede the
formation of a wise and well-balanced government for a free people. It is not to be wondered at, that a government instituted in times so inauspicious, should on experiment be found greatly deficient and inadequate to the purpose it was intended to answer.
This intelligent people perceived and regretted these defects. Still continuing no less attached to union than enamored of liberty, they observed the danger which immediately threatened the former and more remotely the latter; and being persuaded that ample security for both could only be found in a national government more wisely framed, they, as with one voice, convened the late convention at Philadelphia, to take that important subject under consideration. This convention, composed of men who possessed the confidence of the people, and many of whom had become highly distinguished by their patriotism, virtue, and wisdom, in times which tried the minds and hearts of men, undertook the arduous task. In the mild season of peace, with minds unoccupied by other subjects, they passed many months in cool, uninterrupted, and daily consultation; and finally, without having been awed by power, or influenced by any passions except love for their country, they presented and recommended to the people the plan produced by their joint and very unanimous councils.
Admit, for so is the fact, that this plan is only recommended, not imposed, yet let it be remembered that it is neither recommended to blind approbation, nor to blind reprobation; but to that sedate and candid consideration which the magnitude and importance of the subject demand, and which it certainly ought to receive. But this (as was remarked in the foregoing number of this paper) is more to be wished than expected, that it may be so considered and examined. Experienceon a former occasion teaches us not to be too sanguine in such hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger induced the people of America to form the memorableCongress of 1774. That body recommended certain measures to their constituents, and the event proved their wisdom; yet it is fresh in our memories how soon the press began to team with pamphlets and weekly papers against those very measures. Not only many of the
officers of government, who obeyed the dictates of personal interest, but others, from a mistaken estimate of consequences, or the undue influence of former attachments or whose ambition aimed at objects which did not correspond with the public good, were indefatigable in their efforts to persuade the people to reject the advice of that patriotic Congress. Many, indeed, were deceived and deluded, but the majority of the people reasoned and decided judiciously; and happy they are in reflecting that they did so.
They considered that the Congress was composed of many wise and experienced men. That, being convened from different parts of the country, they brought with them and communicated to each other a variety of useful information. That, in the course of the time they passed together in inquiring into and discussing the true interests of their country, they must have acquired very accurate knowledge on that head. That they were individually interested in the public liberty and prosperity, and therefore that it was not less their inclination than their duty to recommend only such measures as, after the most mature deliberation, they really thought prudent and advisable.
These and similar considerations then induced the people to rely greatly on the judgment and integrity of the Congress; and they took their advice, notwithstanding the various arts and endeavors used to deter them from it. But if the people at large had reason to confide in the men of that Congress, few of whom had been fully tried or generally known, still greater reason have they now to respect the judgment and advice of the convention, for it is well known that some of the most distinguished members of that Congress, who have been since tried and justly approved for patriotism and abilities, and who have grown old in acquiring political information, were also members of this convention, and carried into it their accumulated knowledge and experience.
It is worthy of remark that not only the first, but every succeeding Congress, as well as the late convention, have invariably joined with the people in thinking that the prosperity of America depended on its Union. To preserve and perpetuate it was the great object of the people in forming that convention, and it is also the great object of the plan which the convention has advised them to adopt. With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three of four confederacies would be better than one? I am persuaded in my own mind that the people have always thought right on this subject, and that their universal and uniform attachment to the cause of the Union rests on great and weighty reasons, which I shall endeavor to develop and explain in some ensuing papers. They who promote the idea of substituting a number of distinct confederacies in the room of the plan of the convention, seem clearly to foresee that the rejection of it would put the continuance of the Union in the utmost jeopardy.
That certainly would be the case, and I sincerely wish that it may be as clearly foreseen by every good citizen, that whenever the dissolution of the Union arrives, America will have reason to exclaim, in the words of the poet: “Farewell! A Long Farewell to All My Greatness.”
– PUBLIUS
The number of wars which have happened or will happen in the world will always be found to be in proportion to the number and weight of the causes, whether real or pretended, which provoke or invite them. If this remark be just, it becomes useful to inquire whether so many just causes of war are likely to be given by United America as by disunited America; for if it should turn out that United America will probably give the fewest, then it will follow that in this respect the Union tends most to preserve the people in a state of peace with other nations.
The just causes of war, for the most part, arise either from violations of treaties or from direct violence. America has already formed treaties with no less than six foreign nations, and all of them, except Prussia, are maritime, and therefore able to annoy and injure us. She has also extensive commerce with Portugal, Spain, and Britain, and, with respect to the two latter, has, in addition, the circumstance of neighborhood to attend to. It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.
Because when once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it; for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,- especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States. Hence, it will result that the administration, the political counsels, and the judicial decisions of the national government will be more wise, systematical, and judicious than those of individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.
Because, under the national government, treaties and articles of treaties, as well as the laws of nations, will always be expounded in one sense and executed in the same manner,- whereas adjudications on the same points and questions, in thirteen States, or in three or four confederacies, will not always accord or be consistent; and that, as well from the variety of independent courts and judges appointed by different and independent governments, as from the different local laws and interests which may affect and influence them. The wisdom of the convention, in committing such questions to the jurisdiction and judgment of courts appointed by and responsible only to one national government, cannot be too much commended.
Because the prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice; but those temptations, not reaching the other States, and consequently having little or no influence on the national government, the temptation will be fruitless, and good faith and justice be preserved. The case of the treaty of peace with Britain adds great weight to this reasoning.
Because, even if the governing party in a State should be disposed to resist such temptations, yet, as such temptations may, and commonly do, result from circumstances peculiar to the State, and may affect a great number of the inhabitants, the governing party may not always be able, if willing, to prevent the injustice meditated, or to punish the aggressors. But the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others. So far, therefore, as either designed or accidental violations of treaties and the laws of nations afford just causes of war, they are less to be apprehended under one general government than under several lesser ones, and in that respect the former most favors the safety of the people.
As to those just causes of war which proceed from direct and unlawful violence, it appears equally clear to me that one good national government affords vastly more security against dangers of that sort than can be derived from any other quarter. Because such violences are more frequently caused by the passions and interests of a part than of the whole; of one or two States than of the Union. Not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.
The neighborhood of Spanish and British territories, bordering on some States and not on others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations; and nothing can so effectually obviate that danger as a national government, whose wisdom and prudence will not be diminished by the passions which actuate the parties immediately interested.
But not only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably. They will be more temperate and cool, and in that respect, as well as in others, will be more in capacity to act advisedly than the offending State. The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.
Besides, it is well known that acknowledgments, explanations, and compensations are often accepted as satisfactory from a strong united nation, which would be rejected as unsatisfactory if offered by a State or confederacy of little consideration or power. In the year 1685, the state of Genoa having offended Louis XIV., endeavored to appease him. He demanded that they should send their Doge, or chief magistrate, accompanied by four of their senators, to France, to ask his pardon and receive his terms. They were obliged to submit to it for the sake of peace. Would he on any occasion either have demanded or have received the like humiliation from Spain, or Britain, or any other powerful nation?
– PUBLIUS
It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting any thing by it; nay, absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans. These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people. But, independent of these inducements to war, which are more prevalent in absolute monarchies, but which well deserve our attention, there are others which affect nations as often as kings; and some of them will on examination be found to grow out of our relative situation and circumstances.
With France and with Britain we are rivals in the fisheries, and can supply their markets cheaper then they can themselves, notwithstanding any efforts to prevent it by bounties on their own or duties on foreign fish. With them and with most other European nations we are rivals in navigation and the carrying trade; and we shall deceive ourselves if we suppose that any of them will rejoice to see it flourish; for, as our carrying trade cannot increase without in some degree diminishing theirs, it is more their interest, and will be more their policy, to restrain than to promote it.
In the trade to China and India, we interfere with more than one nation, inasmuch as it enables us to partake in advantages which they had in a manner monopolized, and as we thereby supply ourselves with commodities which we used to purchase from them. The extension of our own commerce in our own vessels cannot give pleasure to any nations who possess territories on or near this continent, because the cheapness and excellence of our productions, added to the circumstance of vicinity, and the enterprise and address of our merchants and navigators, will give us a greater share in the advantages which those territories afford, than consists with the wishes or policy of their respective sovereigns.
Spain thinks it convenient to shut the Mississippi against us on the one side, and Britain excludes us from the Saint Lawrence on the other; not will either of them permit the other waters which are between them and us to become the means of mutual intercourse and traffic. From these and such like considerations, which might, if consistent with prudence, be more amplified and detailed, it is easy to see that jealousies and uneasinesses may gradually slide into the minds and cabinets of other nations, and that we are not to expect that they should regard our advancement in union, in power and consequence by land and by sea, with an eye of indifference and composure.
The people of America are aware that inducements to war may arise out of these circumstances, as well as from others not so obvious at present, and that whenever such inducements may find fit time and opportunity for operation, pretenses to color and justify them will not be wanting. Wisely, therefore, do they consider union and a good national government as necessary to put and keep them in such a situation as, instead of inviting war, will tend to repress and discourage it. That situation consists in the best possible state of defence, and necessarily depends on the government, the arms, and the resources of the country.
As the safety of the whole is the interest of the whole, and cannot be provided for without government, either one or more or many, let us inquire whether one good government is not, relative to the object in question, more competent then any other given number whatever. One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defence of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.
What would the militia of Britain be if the English militia obeyed the government of England, if the Scotch militia obeyed the government of Scotland, and if the Welsh militia obeyed the government of Wales? Suppose an invasion; would those three governments (if they agreed at all) be able, with all their respective forces, to operate against the enemy so effectually as the single government of Great Britain would? We have heard much of the fleets of Britain, and the time may come, if we are wise, when the fleets of America may engage attention. But if one national government had not so regulated the navigation of Britain as to make it a nursery for seamen- if one national government had not called forth all the national means and materials for forming fleets, their prowess and their thunder would never have been celebrated. Let England have its navigation and fleet- let Scotland have its navigation and fleet- let Wales have its navigation and fleet- let Ireland have its navigation and fleet- let those four of the constituent parts of the British empire be under four independent governments, and it is easy to perceive how soon they would each dwindle into comparative insignificance.
Apply these facts to our own case. Leave America divided into thirteen or, if you please, into three or four independent governments- what armies could they raise and pay- what fleets could they ever hope to have? If one was attacked, would the others fly to its succor, and spend their blood and money in its defence? Would there be no danger of their being flattered into neutrality by its specious promises, or seduced by a too great fondness for peace to decline hazarding their tranquillity and present safety for the sake of neighbors, of whom perhaps they have been jealous, and whose importance they are content to see diminished. Although such conduct would not be wise, it would, nevertheless, be natural. The history of the states of Greece, and of other countries, abounds with such instances, and it is not improbable that what has so often happened would, under similar circumstances, happen again. But admit that they might be willing to help the invaded State or confederacy. How, and when, and in what proportion shall aids of men and money be afforded? Who shall command the allied armies, and from which of them shall he receive his orders? Who shall settle the terms of peace, and in case of disputes what umpire shall decide between them and compel acquiescence? Various difficulties and inconveniences would be inseparable from such a situation; whereas one government, watching over the general and common interests. and combining and directing the powers and resources of the whole, would be free from all these embarrassments, and conduce far more to the safety of the people.
But whatever may be our situation, whether firmly united under one national government, or split into a number of confederacies, certain it is, that foreign nations will know and view it exactly as it is; and they will act towards us accordingly. If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government (each State doing right or wrong, as to its rulers may seem convenient), or split into three or four independent and probably discordant republics or confederacies, one inclining to Britain, another to France, and a third to Spain, and perhaps played off against each other by the three, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt, but to their outrage; and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.
– PUBLIUS
Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other. Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different “interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.
The most sanguine advocates for three or four confederacies cannot reasonably suppose that they would long remain exactly on an equal footing in point of strength, even if it was possible to form them so at first; but, admitting that to be practicable, yet what human contrivance can secure the continuance of such equality? Independent of those local circumstances which tend to beget and increase power in one part and to impede its progress in another, we must advert to the effects of that superior policy and good management which would probably distinguish the government of one above the rest, and by which their relative equality in strength and consideration would be destroyed. For it cannot be presumed that the same degree of sound policy, prudence, and foresight would uniformly be observed by each of these confederacies for a long succession of years.
Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them. Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied. The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.
They who well consider the history of similar divisions and confederacies will find abundant reason to apprehend that those in contemplation would in no other sense be neighbors than as they would be borderers; that they would neither love nor trust one another, but on the contrary would be a prey to discord, jealousy, and mutual injuries; in short, that they would place us exactly in the situations in which some nations doubtless wish to see us, viz., formidable only to each other. From these considerations it appears that those gentlemen are greatly mistaken who suppose that alliances offensive and defensive might be formed between these confederacies, and would produce that combination and union of wills, of arms, and of resources, which would be necessary to put and keep them in a formidable state of defence against foreign enemies.
When did the independent states, into which Britain and Spain were formerly divided, combine in such alliance, or unite their forces against a foreign enemy? The proposed confederacies will be distinct nations. Each of them would have its commerce with foreigners to regulate by distinct treaties; and as their productions and commodities are different and proper for different markets, so would those treaties be essentially different. Different commercial concerns must create different interests, and of course different degrees of political attachment to and connection with different foreign nations. Hence it might and probably would happen that the foreign nation with whom the Southern confederacy might be at war would be the one with whom the Northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.
Nay, it is far more probable that in America, as in Europe, neighboring nations, acting under the impulse of opposite interests and unfriendly passions, would frequently be found taking different sides. Considering our distance from Europe, it would be more natural for these confederacies to apprehend danger from one another than from distant nations, and therefore that each of them should be more desirous to guard against the others by the aid of foreign alliances, than to guard against foreign dangers by alliances between themselves. And here let us not forget how much more easy it is to receive foreign fleets into our ports, and foreign armies into our country, than it is to persuade or compel them to depart. How many conquests did the Romans and others make in the characters of allies, and what innovations did they under the same character introduce into the governments of those whom they pretended to protect.
Let candid men judge, then, whether the division of America into any given number of independent sovereignties would tend to secure us against the hostilities and improper interference of foreign nations.
– PUBLIUS
Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification. The celebrated Pericles, in compliance with the resentment of a prostitute, *002 at the expense of much of the blood and treasure of his countrymen, attacked, vanquished, and destroyed the city of the Samnians. The same man, stimulated by private pique against the Megarensians, *003 another nation of Greece, or to avoid a prosecution with which he was threatened as an accomplice in a supposed theft of the statuary of Phidias, *004 or to get rid of the accusations prepared to be brought against him for dissipating the funds of the state in the purchase of popularity, *005 or from a combination of all these causes, was the primitive author of that famous and fatal war, distinguished in the Grecian annals by the name of the Peloponnesian war; which, after various vicissitudes, intermissions, and renewals, terminated in the ruin of the Athenian commonwealth.
The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity to aspire to the triple crown, *006 entertained hopes of succeeding in the acquisition of that splendid prize by the influence of the Emperor Charles V. To secure the favor and interest of this enterprising and powerful monarch, he precipitated England into a war with France, contrary to the plainest dictates of policy, and at the hazard of the safety and independence, as well of the kingdom over which he presided by his counsels, as of Europe in general. For if there ever was a sovereign who bid fair to realize the project of universal monarchy, it was the Emperor Charles V., of whose intrigues Wolsey was at once the instrument and the dupe. The influence which the bigotry of one female, *007 the petulance of another, *008 and the cabals of a third, *009 had in the contemporary policy, ferments, and pacifications, of a considerable part of Europe, are to topics that have been too often descanted upon not to be generally known. To multiply examples of the agency of personal considerations in the production of great national events, either foreign or domestic, according to their direction, would be an unnecessary waste of time. Those who have but a superficial acquaintance with the sources from which they are to be drawn, will themselves recollect a variety of instances; and those who have a tolerable knowledge of human nature will not stand in need of such lights, to form their opinion either of the reality or extent of that agency. Perhaps, however, a reference, tending to illustrate the general principle, may with propriety be made to a case which has lately happened among ourselves. If Shays had not been a desperate debtor, it is much to be doubted whether Massachusetts would have been plunged into a civil war.
But notwithstanding the concurring testimony of experience, in this particular, there are still to be found visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.
Is it not (we may ask these projectors in politics) the true interest of all nations to cultivate the same benevolent and philosophic spirit? If this be their true interest, have they in fact pursued it? Has it not, on the contrary, invariably been found that momentary passions, and immediate interests, have a more active and imperious control over human conduct than general or remote considerations of policy, utility, or justice? Have republics in practice been less addicted to war than monarchies? Are not the former administered by men as well as the latter? Are there not aversions, predilections, rivalships, and desires of unjust acquisitions, that affect nations as well as kings? Are not popular assemblies frequently subject to the impulses of rage, resentment, jealousy, avarice, and of other irregular and violent propensities? Is it not well known that their determinations are often governed by a few individuals in whom they place confidence, and are, of course, liable to be tinctured by the passions and views of those individuals? Has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power or glory? Have there not been as many wars founded upon commercial motives since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion? Has not the spirit of commerce, in many instances, administered new incentives to the appetite, both for the one and for the other? Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.
Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and Carthage, of the commercial kind. Yet were they as often engaged in wars, offensive and defensive, as the neighboring monarchies of the same times. Sparta was little better than a well-regulated camp; and Rome was never sated of carnage and conquest. Carthage, though a commercial republic, was the aggressor in the very war that ended in her destruction. Hannibal had carried her arms into the heart of Italy and to the gates of Rome, before Scipio, in turn, gave him an overthrow in the territories of Carthage, and made a conquest of the commonwealth. Venice, in later times, figured more than once in wars of ambition, till, becoming an object to the other Italian states, Pope Julius II. found means to accomplish that formidable league, *010 which gave a deadly blow to the power and pride of this haughty republic. The provinces of Holland, till they were overwhelmed in debts and taxes, took a leading and conspicuous part in the wars of Europe. They had furious contests with England for the dominion of the sea, and were among the most persevering and most implacable of the opponents of Louis XIV.
In the government of Britain the representatives of the people compose one branch of the national legislature. Commerce has been for ages the predominant pursuit of that country. Few nations, nevertheless, have been more frequently engaged in war; and the wars in which that kingdom has been engaged have, in numerous instances, proceeded from the people.
There have been, if I may so express it, almost as many popular as royal wars. The cries of the nation and the importunities of the representatives have, upon various occasions, dragged their monarchs into war, or continued them in it, contrary to their inclinations, and sometimes contrary to the real interests of the state. In that memorable struggle for superiority between the rival houses of Austria and Bourbon, which so long kept Europe in a flame, it is well known that the antipathies of the English against the French, seconding the ambition, or rather the avarice, of a favorite leader, *011 protracted the war beyond the limits marked out by sound policy, and for a considerable time in opposition to the views of the court.
The wars of these two last-mentioned nations have in a great measure grown out of commercial considerations,- the desire of supplanting and the fear of being supplanted, either in particular branches of traffic or in the general advantages of trade and navigation. From this summary of what has taken place in other countries, whose situations have borne the nearest resemblance to our own, what reason can we have to confide in those reveries which would seduce us into an expectation of peace and cordiality between the members of the present confederacy, in a state of separation? Have we not already seen enough of the fallacy and extravagance of those idle theories which have amused us with promises of an exemption from the imperfections, weaknesses, and evils incident to society in every shape? Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?
Let the point of extreme depression to which our national dignity and credit have sunk, let the inconveniences felt everywhere from a lax and ill administration of government, let the revolt of a part of the State of North Carolina, the late menacing disturbances in Pennsylvania, and the actual insurrections and rebellions in Massachusetts, declare—!
So far is the general sense of mankind from corresponding with the tenets of those who endeavor to lull asleep our apprehensions of discord and hostility between the States, in the event of disunion, that it has from long observation of the progress of society become a sort of axiom in politics, that vicinity, or nearness of situation, constitutes nations natural enemies. An intelligent writer expresses himself on this subject to this effect: “NEIGHBORING NATIONS [says he] are naturally enemies of each other, unless their common weakness forces them to league in a CONFEDERATIVE REPUBLIC, and their constitution prevents the differences that neighborhood occasions, extinguishing that secret jealousy which disposes all states to aggrandize themselves at the expense of their neighbours.” *012 This passage, at the same time, points out the EVIL and suggests the REMEDY.
– PUBLIUS
If that were at an end, the States which made the cession, on a principle of federal compromise, would be apt, when the motive of the grant had ceased, to reclaim the lands as a reversion. The other States would no doubt insist on a proportion, by right of representation. Their argument would be, that a grant, once made, could not be revoked; and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy, remained undiminished. If, contrary to probability, it should be admitted by all the States, that each had a right to a share of this common stock, there would still be a difficulty to be surmounted, as to a proper rule of apportionment. Different principles would be set up by different States for this purpose; and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment.
In the wide field of Western territory, therefore, we perceive an ample theatre for hostile pretensions, without any umpire or common judge to interpose between the contending parties. To reason from the past to the future, we shall have good ground to apprehend, that the sword would sometimes be appealed to as the arbiter of their differences. The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences. The articles of confederation obliged the parties to submit the matter to the decision of a federal court. The submission was made, and the court decided in favor of Pennsylvania. But Connecticut gave strong indications of dissatisfaction with that determination; nor did she appear to be entirely resigned to it, till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained. Nothing here said is intended to convey the slightest censure on the conduct of that State. She no doubt sincerely believed herself to have been injured by the decision; and States, like individuals, acquiesce with great reluctance in determinations to their disadvantage.
Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this State and the district of Vermont, can vouch the opposition we experienced, as well from States not interested as from those which were interested in the claim; and can attest the danger to which the peace of the Confederacy might have been exposed, had this State attempted to assert its rights by force. Two motives preponderated in that opposition: one, a jealousy entertained of our future power; and the other, the interest of certain individuals of influence in the neighboring States, who had obtained grants of land under the actual government of that district. Even the States which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this State, than to establish their own pretensions. These were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont; and Maryland, till alarmed by the appearance of a connection between Canada and that State, entered deeply into the same views. These being small States, saw with an unfriendly eye the perspective of our growing greatness. In a review of these transactions we may trace some of the causes which would be likely to embroil the States with each other, if it should be their unpropitious destiny to become disunited.
The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance. We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest.
The spirit of enterprise, which characterizes the commercial part of America, has left no occasion of displaying itself unimproved. It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular States might endeavor to secure exclusive benefits to their own citizens. The infractions of these regulations, on one side, the efforts to prevent and repel them, on the other, would naturally lead to outrages, and these to reprisals and wars. The opportunities which some States would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary States. The relative situation of New York, Connecticut, and New Jersey, would afford an example of this kind. New York, from the necessities of revenue, must lay duties on her importations. A great part of these duties must be paid by the inhabitants of the two other States in the capacity of consumers of what we import. New York would neither be willing nor able to forego this advantage. Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets. Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit? Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis, from the possession of which we derived an advantage so odious to our neighbors, and, in their opinion, so oppressive? Should we be able to preserve it against the incumbent weight of Connecticut on the one side, and the cooperating pressure of New Jersey on the other? These are questions that temerity alone will answer in the affirmative.
The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterwards, would be alike productive of ill-humor and animosity. how would it be possible to agree upon a rule of apportionment satisfactory to all? There is scarcely any that can be proposed which is entirely free from real objections. These, as usual, would be exaggerated by the adverse interest of the parties. There are even dissimilar views among the States as to the general principle of discharging the public debt. Some of them, either less impressed with the importance of national credit, or because their citizens have little, if any, immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate. These would be inclined to magnify the difficulties of a distribution. Others of them, a numerous body of whose citizens are creditors to the public beyond the proportion of the State in the total amount of the national debt, would be strenuous for some equitable and effective provision.
The procrastinations of the former would excite the resentments of the latter. The settlement of a rule would, in the meantime, be postponed by real differences of opinion and affected delays. The citizens of the States interested would clamor; foreign powers would urge for the satisfaction of their just demands, and the peace of the States would be hazarded to the double contingency of external invasion and internal contention. Suppose the difficulties of agreeing upon a rule surmounted, and the apportionment made. Still there is great room to suppose that the rule agreed upon would, upon experiment, be found to bear harder upon some States than upon others. Those which were sufferers by it would naturally seek for a mitigation of the burden. The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own incumbrances. Their refusal would be too plausible a pretext to the complaining States to withhold their contributions, not to be embraced with avidity; and the non-compliance of these States with there engagements would be a ground of bitter discussion and altercation. If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the States would result from a diversity of other causes- the real deficiency of resources; the mismanagement of their finances; accidental disorders in the management of the government; and, in addition to the rest, the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them, and interfere with the supply of immediate wants. Delinquencies, from whatever causes, would be productive of complaints, recriminations, and quarrels. There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.
Laws in violation of private contracts, as they amount to aggressions on the rights of those States whose citizens are injured by them, may be considered as another probable source of hostility. We are not authorized to expect that a more liberal or more equitable spirit would preside over the legislations of the individual States hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes. We have observed the disposition to retaliation excited in Connecticut, in consequence of the enormities perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in similar cases under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice.
The probability of incompatible alliances between the different States or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera *013 must be the motto of every nation that either hates or fears us. *014
PUBLIUS
In this country the scene would be altogether reversed. The jealousy of military establishments would postpone them as long as possible. The want of fortifications, leaving the frontiers of one State open to another, would facilitate inroads. The populous States would, with little difficulty, overrun their less populous neighbors. Conquests would be as easy to be made as difficult to be retained. War, therefore, would be desultory and predatory. PLUNDER and devastation ever march in the train of irregulars. The calamities of individuals would make the principal figure in the events which would characterize our military exploits.
This picture is not too highly wrought; though, I confess, it would not long remain a just one. Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The institutions chiefly alluded to are STANDING ARMIES and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it. *015 Their existence, however, from the very terms of the proposition, is, at most, problematical and uncertain. But standing armies, it may be replied, must inevitably result from a dissolution of the Confederacy. Frequent war and constant apprehension, which require a state of as constant preparation, will infallibly produce them. The weaker States or confederacies would first have recourse to them, to put themselves upon an equality with their more potent neighbors. They would endeavor to supply the inferiority of population and resources by a more regular and effective system of defence, by disciplined troops, and by fortifications. They would, at the same time, be necessitated to strengthen the executive arm of government, in doing which their constitutions would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive at the expense of the legislative authority.
The expedients which have been mentioned would soon give the States or confederacies that made use of them a superiority over their neighbors. Small states, or states of less natural strength, under vigorous governments, and with the assistance of disciplined armies, have often triumphed over large states, or states of greater natural strength, which have been destitute of these advantages. Neither the pride nor the safety of the more important States or confederacies would permit them long to submit to this mortifying and adventitious superiority. They would quickly resort to means similar to those by which it had been effected, to reinstate themselves in their lost preeminence. Thus we should, in a little time, see established in every part of this country the same engines of despotism which have been the scourge of the Old World. This, at least, would be the natural course of things; and our reasonings will be the more likely to be just, in proportion as they are accommodated to this standard.
These are not vague inferences drawn from supposed or speculative defects in a Constitution, the whole power of which is lodged in the hands of a people, or their representatives and delegates, but they are solid conclusions, drawn from the natural and necessary progress of human affairs. It may, perhaps, be asked, by way of objection to this, why did not standing armies spring up out of the contentions which so often distracted the ancient republics of Greece? Different answers, equally satisfactory, may be given to this question. The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics. The means of revenue, which have been so greatly multiplied by the increase of gold and silver and of the arts of industry, and the science of finance, which is the offspring of modern times, concurring with the habits of nations, have produced an entire revolution in the system of war, and have rendered disciplined armies, distinct from the body of the citizens, the inseparable companions of frequent hostility.
There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. The rulers of the former can have no good pretext, if they are even so inclined, to keep on foot armies so numerous as must of necessity be maintained in the latter. These armies being, in the first case, rarely, if at all, called into activity for interior defence, the people are in no danger of being broken to military subordination. The laws are not accustomed to relaxations, in favor of military exigencies; the civil state remains in full vigor, neither corrupted, nor confounded with the principles or propensities of the other state. The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens, not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil, and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights. The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of the people.
In a country in the predicament last described, the contrary of all this happens. The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defence. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions to make a bold or effectual resistance to usurpations supported by the military power.
The kingdom of Great Britain falls within the first description. An insular situation, and a powerful marine, guarding it in a great measure against the possibility of foreign invasion, supersede the necessity of a numerous army within the kingdom. A sufficient force to make head against a sudden descent, till the militia could have time to rally and embody, is all that has been deemed requisite. No motive of national policy has demanded, nor would public opinion have tolerated, a larger number of troops upon its domestic establishment. There has been, for a long time past, little room for the operation of the other causes, which have been enumerated as the consequences of internal war. This peculiar felicity of situation has, in a great degree, contributed to preserve the liberty which that country to this day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, Britain had been situated on the continent, and had been compelled, as she would have been, by that situation, to make her military establishments at home coextensive with those of the other great powers of Europe, she, like them, would in all probability be, at this day, a victim to the absolute power of a single man. ‘Tis possible, though not easy, that the people of that island may be enslaved from other causes; but it cannot be by the prowess of an army so inconsiderable as that which has been usually kept up within the kingdom.
If we are wise enough to preserve the Union we may for ages enjoy an advantage similar to that of an insulated situation. Europe is at a great distance from us. Her colonies in our vicinity will be likely to continue too much disproportioned in strength to be able to give us any dangerous annoyance. Extensive military establishments cannot, in this position, be necessary to our security. But if we should be disunited, and the integral parts should either remain separated, or, which is most probable, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe- our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.
This is an idea not superficial or futile, but solid and weighty. It deserves the most serious and mature consideration of every prudent and honest man of whatever party. If such men will make a firm and solemn pause, and meditate dispassionately on the importance of this interesting idea; if they will contemplate it in all its attitudes, and trace it to all its consequences, they will not hesitate to part with trivial objections to a Constitution, the rejection of which would in all probability put a final period to the Union. The airy phantoms that flit before the distempered imaginations of some of its adversaries would quickly give place to the more substantial forms of dangers, real, certain, and formidable.
– PUBLIUS
But it is not to be denied that the portraits they have sketched of republican government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided. To this catalogue of circumstances that tend to the amelioration of popular systems of civil government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the new Constitution; I mean the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State, or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle in it application to a single State, which shall be attended to in another place.
The utility of a Confederacy, as well to suppress faction and to guard the internal tranquillity of States, as to increase their external force and security, is in reality not a new idea. It has been practiced upon in different countries and ages, and has received the sanction of the most approved writers on the subjects of politics. The opponents of the plan proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government. But they seem not to have been apprised of the sentiments of that great man expressed in another part of his work, not to have adverted to the consequences of the principle to which they subscribe with such ready acquiescence.
When Montesquieu recommends a small extent for republics, the standards he had in view were of dimensions far short of the limits of almost every one of these States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia can by any means be compared with the models from which he reasoned and to which the terms of his description apply. If we therefore take his ideas on this point as the criterion of truth, we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord, and the miserable objects of universal pity or contempt. Some of the writers who have come forward on the other side of the question seem to have been aware of the dilemma; and have even been bold enough to hint at the division of the larger States as a desirable thing. Such an infatuated policy, such a desperate expedient, might, by the multiplication of petty offices, answer the views of men who possess not qualifications to extend their influence beyond the narrow circles of personal intrigue, but it could never promote the greatness or happiness of the people of America.
Referring the examination of the principle itself to another place, as has been already mentioned, it will be sufficient to remark here that, in the sense of the author who has been most emphatically quoted upon the occasion, it would only dictate a reduction of the SIZE of the more considerable MEMBERS of the Union, but would not militate against their being all comprehended in one confederate government. And this is the true question, in the discussion of which we are at present interested.
So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.
“It is very probable” (says he) *016 “that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a Confederate Republic.
“This form of government is a convention by which several smaller states agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.
“A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.
“If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.
“Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.
“As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.
A distinction, more subtle than accurate, has been raised between a confederacy and a consolidation of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a confederate government. These positions are, in the main, arbitrary; they are supported neither by principle nor precedent. It has indeed happened, that governments of this kind have generally operated in the manner which the distinction, taken notice of, supposes to be inherent in their nature; but there have been in most of them extensive exceptions to the practice, which serve to prove, as far as example will go, that there is no absolute rule on the subject. And it will be clearly shown, in the course of this investigation, that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government.
The definition of a confederate republic seems simply to be “an assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.
In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the largest were entitled to three votes in the COMMON COUNCIL, those of the middle class to two, and the smallest to one. The COMMON COUNCIL had the appointment of all the judges and magistrates of the respective CITIES. This was certainly the most delicate species of interference in their internal administration; for if there be any thing that seems exclusively appropriated to the local jurisdictions, it is the appointment of their own officers. Yet Montesquieu, speaking of this association, says: “Were I to give a model of an excellent Confederate Republic, it would be that of Lycia.” Thus we perceive that the distinctions insisted upon were not within the contemplation of this enlightened civilian; and we shall be led to conclude, that they are the novel refinements of an erroneous theory.
– PUBLIUS
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights or property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into
different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property.
Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good.
The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.
It is vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.
By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.
From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.
A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.
The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended. The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations: In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to center in men who possess the most attractive merit and the most diffusive and established characters.
It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.
The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,- is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and to schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it
the most palpable advantage.
The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular country or district, than an entire State.
In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.
– PUBLIUS
If we continue united, we may counteract a policy so unfriendly to our prosperity in a variety of ways. By prohibitory regulations, extending, at the same time, throughout the States, we may oblige foreign countries to bid against each other, for the privileges of our markets. This assertion will not appear chimerical to those who are able to appreciate the importance of the markets of three millions of people- increasing in rapid progression, for the most part exclusively addicted to agriculture, and likely from local circumstances to remain so- to any manufacturing nation; and the immense difference there would be to the trade and navigation of such a nation, between a direct communication in it own ships, and an indirect conveyance of its products and returns, to and from America, in the ships of another country. Suppose, for instance, we had a government in America, capable of excluding Great Britain (with whom we have at present no treaty of commerce) from all our ports; what would be the probable operation of this step upon her politics? Would it not enable us to negotiate, with the fairest prospect of success, for commercial privileges of the most valuable and extensive kind, in the dominions of that kingdom? When these questions have been asked, upon other occasions, they have received a plausible, but not a solid or satisfactory answer. It has been said that prohibitions on our part would produce no change in the system of Britain, because she could prosecute her trade with us through the medium of the Dutch, who would be her immediate customers and paymasters for those articles which were wanted for the supply of our markets. But would not her navigation be materially injured by the loss of the important advantage of being her own carrier in that trade? Would not the principal part of its profits be intercepted by the Dutch, as a compensation for their agency and risk? Would not the mere circumstance of freight occasion a considerable deduction? Would not so circuitous an intercourse facilitate the competitions of other nations, by enhancing the price of British commodities in our markets, and by transferring to other hands the management of this interesting branch of the British commerce?
A mature consideration of the objects suggested by these questions will justify a belief that the real disadvantages to Britain from such a state of things, conspiring with the prepossessions of a great part of the nation in favor of the America trade, and with the importunities of the West India islands, would produce a relaxation in her present system, and would let us into the enjoyment of privileges in the markets of those islands and elsewhere, from which our trade would derive the most substantial benefits. Such a point gained from the British government, and which could not be expected without an equivalent in exemptions and immunities in our markets, would be likely to have a correspondent effect on the conduct of other nations, who would not be inclined to see themselves altogether supplanted in our trade.
A further resource for influencing the conduct of European nations towards us, in this respect, would arise from the establishment of a federal navy. There can be no doubt that the continuance of the Union under an efficient government, would put it in our power, at a period not very distant, to create a navy which, if it could not vie with those of the great maritime powers, would at least be of respectable weight if thrown into the scale of either of two contending parties. This would be more peculiarly the case in relation to operations in the West Indies. A few ships of the line, sent opportunely to the reinforcement of either side, would often be sufficient to decide the fate of a campaign, on the event of which interests of the greatest magnitude were suspended. Our position is, in this respect, a most commanding one. And if to this consideration we add that of the usefulness of supplies from this country, in the prosecution of military operations in the West Indies, it will readily be perceived that a situation so favorable would enable us to bargain with great advantage for commercial privileges. A price would be set not only upon our friendship, but upon our neutrality. By a steady adherence to the Union, we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate.
But in the reverse of this eligible situation, we shall discover that the rivalships of the parts would make them checks upon each other, and would frustrate all the tempting advantages which nature has kindly placed within our reach. In a state so insignificant our commerce would be a prey to the wanton intermeddlings of all nations at war with each other; who have nothing to fear from us, would with little scruple or remorse supply their wants by depredations on our property as often as it fell in their way. The rights of neutrality will only be respected when they are defended by an adequate power.
A nation, despicable by its weakness, forfeits even the privilege of being neutral. Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature.
But in a state of disunion, these combinations might exist and might operate with success. It would be in the power of the maritime nations, availing themselves of our universal impotence, to prescribe the conditions of our political existence; and as they have a common interest in being our carriers, and still more in preventing our becoming theirs, they would in all probability combine to embarrass our navigation in such a manner as would in effect destroy it, and confine us to a PASSIVE COMMERCE. We should then be compelled to content ourselves with the first price of our commodities, and to see the profits of our trade snatched from us to enrich our enemies and persecutors. That unequalled spirit of enterprise, which signalizes the genius of the American merchants and navigators, and which is in itself in inexhaustible mine of national wealth, would be stifled and lost, and poverty and disgrace would overspread a country which, with wisdom, might make herself the admiration and envy of the world.
There are rights of great moment to the trade of America which are rights of the Union- I allude to the fisheries, to the navigation of the Western lakes, and to that of the Mississippi. The dissolution of the Confederacy would give room for delicate questions concerning the future existence of these rights; which the interest of more powerful partners would hardly fail to solve to our disadvantage.
The disposition of Spain with regard to the Mississippi needs no comment. France and Britain are concerned with us in the fisheries, and view them as of the utmost moment to their navigation. They, of course, would hardly remain long indifferent to that decided mastery, of which experience has shown us to be possessed in this valuable branch of traffic, and by which we are able to undersell those nations in their own markets. What more natural than that they should be disposed to exclude from the lists such dangerous competitors?
This branch of the trade ought not to be considered as a partial benefit. All the navigating States may , in different degrees, advantageously participate in it, and under circumstances of a greater extension of mercantile capital, would not be unlikely to do it. As a nursery of seamen, it now is, or, when time shall have more nearly assimilated the principles of navigation in the several States, will become, a universal resource. To the establishment of a navy, it must be indispensable.
To this great national object a NAVY, union will contribute in various ways. Every institution will grow and flourish in proportion to the quantity and extent of the means concentrated towards its formation and support. A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. It happens, indeed, that different portions of confederated America possess each some peculiar advantage for this essential establishment. The more southern States furnish in greater abundance certain kinds of naval stores- tar, pitch, and turpentine. Their wood for the construction of ships is also of a more solid and lasting texture. The difference in the duration of the ships of which the navy might be composed, if chiefly constructed of Southern wood, would be of signal importance, either in the view of naval strength or of national economy. Some of the Southern and of the Middle States yield a greater plenty of iron, and of better quality. Seamen must chiefly be drawn from the Northern hive. The necessity of naval protection to external or maritime commerce does not require a particular elucidation, no more than the conduciveness of that species of Commerce to the prosperity of a navy.
An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce. It can be conducted upon much better terms with a large number of materials of a given value than with a small number of materials of the same value; arising from the competitions of trade and from the fluctuations of markets. Particular articles may be in great demand at certain periods, and unsalable at others; but if there be a variety of articles, it can scarcely happen that they should all be at one time in the latter predicament, and on this account the operations of the merchant would be less liable to any considerable obstruction or stagnation. The speculative trader will at once perceive the force of these observations, and will acknowledge that the aggregate balance of the commerce of the United States would bid fair to be much more favorable than that of the thirteen States without union or with partial unions.
It may perhaps be replied to this, that whether the States are united or disunited, there would still be an intimate intercourse between them which would answer the same ends; but this intercourse would be fettered, interrupted, and narrowed by a multiplicity of causes, which in the course of these papers have been amply detailed. A unity of commercial, as well as political, interests, can only result from a unity of government.
There are other points of view in which this subject might be placed, of a striking and animating kind. But they would lead us too far into the regions of futurity, and would involve topics not proper for a newspaper discussion. I shall briefly observe, that our situation invites and our interests prompt us to aim at an ascendant in the system of America affairs. The world may politically, as well as geographically, be divided into four parts, each having a distinct set of interests. Unhappily for the other three, Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority and have gravely asserted that all animals, and with them the human species, degenerate in America- that even dogs cease to bark after having breathed awhile in our atmosphere. *017 Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it.
Disunion will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!
– PUBLIUS
The ability of a country to pay taxes must always be proportioned, in a great degree, to the quantity of money in circulation, and to the celerity with which it circulates. Commerce, contributing to both these objects, must of necessity render the payment of taxes easier, and facilitate the requisite supplies to the treasury. The hereditary dominions of the Emperor of Germany contain a great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues. He has several times been compelled to owe obligations to the pecuniary succors of other nations for the preservation of his essential interests, and is unable, upon the strength of his own resources, to sustain a long or continued war.
But it is not in this aspect of the subject alone that Union will be seen to conduce to the purpose of revenue. There are other points of view, in which its influence will appear more immediate and decisive. It is evident from the state of the country, from the habits of the people, from the experience we have had on the point itself, that it is impracticable to raise any very considerable sums by direct taxation. Tax laws have in vain been multiplied; new methods to enforce the collection have in vain been tried; the public expectation has been uniformly disappointed, and the treasuries of the States have remained empty. The popular system of administration inherent in the nature of popular government, coinciding with the real scarcity of money incident to a languid and mutilated state of trade, has hitherto defeated every experiment for extensive collections, and has at length taught the different legislatures the folly of attempting them.
No person acquainted with what happens in other countries will be surprised at this circumstance. In so opulent a nation as that of Britain, where direct taxes from superior wealth must be much more tolerable, and, from the vigor of the government, much more practicable, than in America, far the greatest part of the national revenue is derived from taxes of the indirect kind, from imposts, and from excises. Duties on imported articles form a large branch of this latter description.
In America, it is evident that we must a long time depend for the means of revenue chiefly on such duties. In most parts of it, excises must be confined within a narrow compass. The genius of the people will ill brook the inquisitive and peremptory spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly yield but scanty supplies, in the unwelcome shape of impositions on their houses and lands; and personal property is too precarious and invisible a fund to be laid hold of in any other way than by the imperceptible agency of taxes on consumption. If these remarks have any foundation, that state of things which will best enable us to improve and extend so valuable a resource must be best adapted to our political welfare. And it cannot admit of a serious doubt, that this state of things, must rest on the basis of a general Union. As far as this would be conducive to the interests of commerce, so far it must tend to the extension of the revenue to be drawn from that source. As far as it would contribute to rendering regulations for the collection of the duties more simple and efficacious, so far it must serve to answer the purposes of making the same rate of duties more productive, and of putting it into the power of the government to increase the rate without prejudice to trade.
The relative situation of these States; the number of rivers with which they are intersected, and of bays that wash their shores; the facility for communication in every direction; the affinity of language and manners; the familiar habits of intercourse;- all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other. The separate States or confederacies would be necessitated by mutual jealousy to avoid the temptations to that kind of trade by the lowness of their duties. The temper of our governments, for a long time to come, would not permit those rigorous precautions by which the European nations guard the avenues into their respective countries, as well by land as by water; and which, even there, are found insufficient obstacles to the adventurous stratagems of avarice.
In France, there is an army of patrols (as they are called) constantly employed to secure their fiscal regulations against the inroads of the dealers in contraband trade. Mr Neckar computes the number of these patrols at upwards of twenty thousand. This shows the immense difficulty in preventing that species of traffic, where there is an inland communication, and places in a strong light the disadvantages with which the collection of duties in this country would be encumbered, if by disunion the States should be placed in a situation, with respect to each other, resembling that of France with respect to her neighbors. The arbitrary and vexatious powers with which the patrols are necessarily armed, would be intolerable in a free country.
If, on the contrary, there be but one government pervading all the States, there will be, as to the principal part of our commerce, but ONE SIDE to guard-the ATLANTIC COAST. Vessels arriving directly from foreign countries, laden with valuable cargoes, would rarely choose to hazard themselves to the complicated and critical perils which would attend attempts to unload prior to their coming into port. They would have to dread both the dangers of the coast, and of detection, as well after as before their arrival at the places of their final destination. An ordinary degree of vigilance would be competent to the prevention of any material infractions upon the rights of the revenue.
A few armed vessels, judiciously stationed at the entrances of our ports, might at a small expense be made useful sentinels of the laws. And the government having the same interest to provide against violations everywhere, the cooperation of its measures in each State would have a powerful tendency to render them effectual. Here also we should preserve, by Union, an advantage which nature holds out to us, and which would be relinquished by separation. The United States lie at a great distance from Europe, and at a considerable distance from all other places with which they would have extensive connections of foreign trade.
The passage from them to us, in a few hours, or in a single night, as between the coasts of France and Britain, and of other neighboring nations, would be impracticable. This is a prodigious security against a direct contraband with foreign countries; but a circuitous contraband to one State, through the medium of another, would be both easy and safe. The difference between a direct importation from abroad, and an indirect importation through the channel of a neighboring State, in small parcels, according to time and opportunity, with the additional facilities of inland communication, must be palpable to every man of discernment.
It is therefore evident, that one national government would be able, at much less expense, to extend the duties on imports, beyond comparison, further than would be practicable to the States separately, or to any partial confederacies. Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three percent. In France they are estimated to be about fifteen percent., and in Britain they exceed this proportion. *018 There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That articlewould well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits.
What will be the consequence, if we are not able to avail ourselves of the resource in question in its full extent? A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede. Revenue, therefore, must be had at all events. In this country, if the principal part be not drawn from commerce, it must fall with oppressive weight upon land. It has been already intimated that excises, in their true signification, are too little in unison with the feelings of the people, to admit of great use being made of that mode of taxation; nor, indeed, in the States where almost the sole employment is agriculture, are the objects proper for excise sufficiently numerous to permit very ample collections in that way. Personal estate (as has been before remarked), from the difficulty in tracing it, cannot be subjected to large contributions, by any other means than by taxes on consumption. In populous cities, it may be enough the subject of conjecture, to occasion the oppression of individuals, without much aggregate benefit to the State; but beyond these circles, it must, in a great measure, escape the eye and the hand of the tax-gatherer.
As the necessities of the State, nevertheless, must be satisfied in some mode or other, the defect of other resources must throw the principal weight of public burdens on the possessors of land. And as, on the other hand, the wants of the government can never obtain an adequate supply, unless all the sources of revenue are open to its demands, the finances of the community, under such embarrassments, cannot be put into a situation consistent with its respectability or it security. Thus we shall not even have the consolations of a full treasury, to atone for the oppression of that valuable class of the citizens who are employed in the cultivation of the soil. But public and private distress will keep pace with each other in gloomy concert; and unite in deploring the infatuation of those counsels which led to disunion.
– PUBLIUS
The supposition that each confederacy into which the States would be likely to be divided would require a government not less comprehensive than the one proposed, will be strengthened by another supposition, more probable than that which presents us with three confederacies as the alternative to a general Union. If we attend carefully to geographical and commercial considerations, in conjunction with the habits and prejudices of the different States, we shall be led to conclude that in case of disunion they will most naturally league themselves under two governments. The four Eastern States, form all the causes that form the links of national sympathy and connection, may with certainty be expected to unite. New York, situated as she is, would never be unwise enough to oppose a feeble and unsupported flank to the weight of that confederacy. There are other obvious reasons that would facilitate her accession to it. New Jersey is too small a State to think of being a frontier, in opposition to this still more powerful combination; nor do there appear to be any obstacles to her admission into it. Even Pennsylvania would have strong inducements to join the Northern league. An active foreign commerce, on the basis of her own navigation, is her true policy, and coincides with the opinions and dispositions of her citizens.The more Southern States, from various circumstances, may not think themselves much interested in the encouragement of navigation. They may prefer a system which would give unlimited scope to all nations to be the carriers as well as the purchasers of their commodities.
Pennsylvania may not choose to confound her interests in a connection so adverse to her policy. As she must at all events be a frontier, she may deem it most consistent with her safety to have her exposed side turned towards the weaker power of the Southern, rather than towards the stronger power of the Northern, Confederacy. This would give her the fairest chance to avoid being the Flanders of America. Whatever may be the determination of Pennsylvania, if the Northern Confederacy includes New Jersey, there is no likelihood of more than one confederacy to the south of that State.
Nothing can be more evident than that the thirteen States will be able to support a national government better than one half, or one third, or any number less than the whole. This reflection must have great weight in obviating that objection to the proposed plan, which is founded on the principle of expense; an objection, however, which, when we come to take a nearer view of it, will appear in every light to stand on mistaken ground.
If, in addition to the consideration of a plurality of civil lists, we take into view the number of persons who must necessarily be employed to guard the inland communication between the different confederacies against illicit trade, and who in time will infallibly spring up our of the necessities of revenue; and if we also take into view the military establishments which it has been shown would unavoidably result from the jealousies and conflicts of the several nations into which the States would be divided, we shall clearly discover that a separation would be not less injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of every part.
– PUBLIUS
To this accidental source of the error may be added the artifice of some celebrated authors, whose writings have had a great share in forming the modern standard of political opinions. Being subjects either of an absolute or limited monarchy, they have endeavored to heighten the advantages, or palliate the evils of those forms, by placing in comparison the vices and defects of the republican, and by citing as specimens of the latter the turbulent democracies of ancient Greece and modern Italy. Under the confusion of names, it has been an easy task to transfer to a republic observations applicable to a democracy only; and among others, the observation that it can never be established but among a small number of people, living within a small compass of territory.
Such a fallacy may have been the less perceived, as most of the popular governments of antiquity were of the democratic species; and even in modern Europe, to which we owe the great principle of representation, no example is seen of a government wholly popular, and founded, at the same time, wholly on that principle. If Europe has the merit of discovering this great mechanical power in government, by the simple agency of which the will of the largest political body may be concentrated, and its force directed to any object which the public good requires, America can claim the merit of making the discovery the basis of unmixed and extensive republics. It is only to be lamented that any of her citizens should wish to deprive her of the additional merit of displaying its full efficacy in the establishment of the comprehensive system now under her consideration.
As the natural limit of democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions; so the natural limit of a republic is that distance from the center which will barely allow the representatives to meet as often as may be necessary for the administration of public affairs. Can it be said that the limits of the United States exceed this distance? It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled, and that the members from the most distant States are not chargeable with greater intermissions of attendance than those from the States in the neighborhood of Congress.
That we may form a juster estimate with regard to this interesting subject, let us resort to the actual dimensions of the Union. The limits, as fixed by the treaty of peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, on the west the Mississippi, and on the north an irregular line running in some instances beyond the forty-fifth degree, in others falling as low as the forty-second. The southern shore of Lake Erie lies below that latitude. Computing the distance between the thirty-first and forty-fifth degrees, it amounts to nine hundred and seventy-three common miles; computing it from thirty-one to forty-two degrees, to seven hundred and sixty-four miles and a half. Taking the mean for the distance, the amount will be eight hundred and sixty-eight miles and three fourths. The mean distance from the Atlantic to the Mississippi does not probably exceed seven hundred and fifty miles. On a comparison of this extent with that of several countries in Europe, the practicability of rendering our system commensurate to it appears to be demonstrable. It is not a great deal larger than Germany, where a diet representing the whole empire is continually assembled; or than Poland before the late dismemberment, where another national diet was the depositary of the supreme power. Passing by France and Spain, we find that in Great Britain, inferior as it may be in size, the representatives of the northern extremity of the island have as far to travel to the national council as will be required of those of the most remote parts of the Union.
Favorable as this view of the subject may be, some observations remain which will place it in the light still more satisfactory. In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any. The subordinate governments, which can extend their care to all those other objects which can be separately provided for, will retain their due authority and activity. Were it proposed by the plan of the convention to abolish the governments of the particular States, its adversaries would have some ground for their objection; though it would not be difficult to show that if they were abolished the general government would be compelled, by the principle of self-preservation, to reinstate them in their proper jurisdiction.
A second observation to be made is that the immediate object of the federal Constitution is to secure the union of the thirteen primitive States, which we know to be practicable; and to add to them such other States as may arise in their own bosoms, or in their neighborhoods, which we cannot doubt to be equally practicable. The arrangements that may be necessary for those angles and fractions of our territory which lie on our northwestern frontier, must be left to those whom further discoveries and experience will render more equal to the task.
Let it be remarked, in the third place, that the intercourse throughout the Union will be facilitated by new improvements. Roads will everywhere be shortened, and kept in better order; accommodations for travellers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout, the whole extent of the thirteen States. The communication between the Western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.
A fourth and still more important consideration is, that as almost every State will, on one side or other, be a frontier, and will thus find, in a regard to its safety, an inducement to make some sacrifices for the sake of the general protection; so the States which lie at the greatest distance from the heart of the Union, and which, of course, may partake least of the ordinary circulation of its benefits, will be at the same time immediately contiguous to foreign nations, and will consequently stand, on particular occasions, in greatest need of its strength and resources. It may be inconvenient for Georgia, or the States forming our western or northeastern borders, to send their representatives to the seat of government; but they would find it more so to struggle alone against an invading enemy, or even to support alone the whole expense of those precautions which may be dictated by the neighborhood of continual danger. If they should derive less benefit, therefore, from the Union in some respects than the less distant States, they will derive greater benefit from it in other respects, and thus the proper equilibrium will be maintained throughout.
I submit to you, my fellow-citizens, these considerations, in full confidence that the good sense which has so often marked your decisions will allow them their due weight and effect; and that you will never suffer difficulties, however formidable in appearance, or however fashionable the error on which they may be founded, to drive you into the gloomy and perilous scene into which the advocates for disunion would conduct you. Hearken not to the unnatural voice which tells you that the people of America, knit together as they are by so many cords of affection, can no longer live together as members of the same family; can no longer continue the mutual guardians of their mutual happiness; can no longer be fellow-citizens of one great, respectable, and flourishing empire. Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. No, my countrymen, shut your ears against this unhallowed language. Shut your hearts against the poison which it conveys; the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defence of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies. And if novelties are to be shunned, believe me, the most alarming of all novelties, the most wild of all projects, the most rash of all attempts, is that of rending us in pieces, in order to preserve our liberties and promote our happiness. But why is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? To this manly spirit, posterity will be indebted for the possession, and the world for the example, of the numerous innovations displayed on the American theatre, in favor of private rights and public happiness. Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment, have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. They formed the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate. If their works betray imperfections, we wonder at the fewness of them. If they erred most in the structure of the Union, this was the work most difficult to be executed; this is the work which has been new modelled by the act of your convention, and it is that act on which you are now to deliberate and to decide.
– PUBLIUS
The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at lengthy extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union.
We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely any thing that can wound the pride or degrade the character of an independent nation which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power which, by express stipulations, ought long since to have been surrendered? These are still retained, to the prejudice of our interests, not less than of our rights. Are we in a condition to resent or to repel the aggression? We have neither troops, nor treasury, nor government. *019 Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed. Are we entitled by nature and compact to a free participation in the navigation of the Mississippi? Spain excludes us from it. Is public credit an indispensable resource in time of public danger? We seem to have abandoned its cause as desperate and irretrievable. Is commerce of importance to national wealth? Ours is at the lowest point of declension. Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us. Our ambassadors abroad are the mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the value of land a symptom of national distress? The price of improved land in most parts of the country is much lower than can be accounted for by the quantity of waste land at market, and can only be fully explained by that want of private and public confidence, which are so alarmingly prevalent among all ranks, and which have a direct tendency to depreciate property of every kind. Is private credit the friend and patron of industry?
That most useful kind which relates to borrowing and lending is reduced within the narrowest limits, and this still more from an opinion of insecurity than from the scarcity of money. To shorten an enumeration of particulars which can afford neither pleasure nor instruction, it may in general be demanded, what indication is there of national disorder, poverty, and insignificance that could befall a community so peculiarly blessed with natural advantages as we are, which does not form a part of the dark catalogue of our public misfortunes.
This is the melancholy situation to which we have been brought by those very maxims and councils which would now deter us from adopting the proposed Constitution; and which, not content with having conducted us to the brink of a precipice, seem resolved to plunge us into the abyss that awaits us below. Here, my countrymen, impelled by every motive that ought to influence an enlightened people, let us make a firm stand for our safety, our tranquillity, our dignity, our reputation. Let us at last break the fatal charm which has too long seduced us from the paths of felicity and prosperity.
It is true, as has been before observed, that facts, too stubborn to be resisted, have produced a species of general assent to the abstract proposition that there exist material defects in our national system; but the usefulness of the concession, on the part of the old adversaries of federal measures, is destroyed by a strenuous opposition to a remedy, upon the only principles that can give it a chance of success. While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio. This renders a full display of the principal defects of the Confederation necessary, in order to show that the evils we experience do not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which cannot be amended otherwise than by an alteration in the first principles and main pillars of the fabric.
The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. Except as to the rule of apportionment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.
It is a singular instance of the capriciousness of the human mind, that after all the admonitions we have had from experience on this head, there should still be found men who object to the new Constitution, for deviating from a principle which has been found the bane of the old, and which is in itself evidently incompatible with the idea of GOVERNMENT; a principle, in short, which, if it is to be executed at all, must substitute the violent and sanguinary agency of the sword to the mild influence of the magistracy.
There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion; and depending for its execution on the good faith of the parties. Compacts of this kind exist among all civilized nations, subject to the usual vicissitudes of peace and war, of observance and non-observance, as the interests or passions of the contracting powers dictate. In the early part of the present century there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits which were never realized. With a view to establishing the equilibrium of power and the peace of that part of the world, all the resources of negotiations were exhausted, and triple and quadruple alliances were formed; but they were scarcely formed before they were broken, giving an instructive but afflicting lesson to mankind, how little dependence is to be placed on treaties which have no other sanction than the obligations of good faith, and which oppose general considerations of peace and justice to the impulse of any immediate interest or passion.
If the particular States in this country are disposed to stand in a similar relation to each other, and to drop the project of a general DISCRETIONARY SUPERINTENDENCE, the scheme would indeed be pernicious, and would entail upon us all the mischiefs which have been enumerated under the first head; but it would have the merit of being, at least, consistent and practicable. Abandoning all views towards a confederate government, this would bring us to a simple alliance offensive and defensive; and would place us in a situation to be alternate friends and enemies of each other, as our mutual jealousies and rivalships, nourished by the intrigues of foreign nations, should prescribe to us.
But if we are unwilling to be placed in this perilous situation; if we still will adhere to the design of a national government, or, which is the same thing, of a superintending power, under the direction of a common council, we must resolve to incorporate into our plan those ingredients which may be considered as forming the characteristic difference between a league and a government; we must extend the authority of the Union to the persons of the citizens,- the only proper objects of government.
Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms. The first kind can evidently apply only to men; the last kind must of necessity, be employed against bodies politic, or communities, or States. It is evident that there is no process of a court by which the observance of the laws can, in the last resort, be enforced. Sentences may be denounced against them for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience. Such a state of things can certainly not deserve the name of government, nor would any prudent man choose to commit his happiness to it.
There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would preside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. This language, at the present day, would appear as wild as a great part of what we now hear from the same quarter will be thought, when we shall have received further lessons from that best oracle of wisdom, experience. It at all times betrayed an ignorance of the true springs by which human conduct is actuated, and belied the original inducements to the establishment of civil power. Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number, than when it is to fall singly upon one.
A spirit of faction, which is apt to mingle it poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.
In addition to all this, there is, in the nature of sovereign power, an impatience of control, that disposes those who are invested with the exercise of it, to look with an evil eye upon all external attempts to restrain or direct its operations. From this spirit it happens, that in every political association which is formed upon the principle of uniting in a common interest a number of lesser sovereignties, there will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the operation of which there will be a perpetual effort in each to fly off from the common center.
This tendency is not difficult to be accounted for. It has its origin in the love of power. Power controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged. This simple proposition will teach us, how little reason there is to expect, that the persons intrusted with the administration of the affairs of the particular members of a confederacy will at all times be ready, with perfect good-humor, and an unbiased regard to the public weal, to execute the resolutions or decrees of the general authority. The reverse of this results from the constitution of human nature.
If, therefore, the measures of the Confederacy cannot be executed without the intervention of the particular administrations, there will be little prospect of their being executed at all. The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption. All this will be done; and in a spirit of interested and suspicious scrutiny, without that knowledge of national circumstances and reasons of state, which is essential to a right judgment, and with that strong predilection in favor of local objects, which can hardly fail to mislead the decision. The same process must be repeated in every member of which the body is constituted; and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part. Those who have been conversant in the proceedings of popular assemblies; who have seen how difficult it often is, where there is no exterior pressure of circumstances, to bring them to harmonious resolutions on important points, will readily conceive how impossible it must be to induce a number of such assemblies, deliberating at a distance from each other, at different times, and under different impressions, long to cooperate in the same views and pursuits.
In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been foreseen. The measures of the Union have not been executed; the delinquencies of the States have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand. Congress at this time scarcely possess the means of keeping up the forms of administration, till the States can have time to agree upon a more substantial substitute for the present shadow of a federal government. Things did not come to this desperate extremity at once.
The causes which have been specified produced at first only unequal and disproportionate degrees of compliance with the requisitions of the Union. The greater deficiencies of some States furnished the pretext of example and the temptation of interest to the complying, or to the least delinquent States. Why should we do more in proportion than those who are embarked with us in the same political voyage? Why should we consent to bear more than our proper share of the common burden? These were suggestions which human selfishness could not withstand, and which even speculative men, who looked forward to remote consequences, could not, without hesitation, combat. Each State, yielding to the persuasive voice of immediate interest or convenience, has successively withdrawn its support, till the frail and tottering edifice seems ready to fall upon our heads, and to crush us beneath its ruins.
– PUBLIUS
This may be considered as the violent death of the Confederacy. Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form. It is not probable, considering the genius of this country, that the complying States would often be inclined to support the authority of the Union by engaging in a war against the non-complying States. They would always be more ready to pursue the milder course of putting themselves upon an equal footing with the delinquent members by an imitation of their example. And the guilt of all would thus become the security of all. Our past experience has exhibited the operation of this spirit in its full light. There would, in fact, be an insuperable difficulty in ascertaining when force could with propriety be employed. In the article of pecuniary contribution, which would be the most usual source of delinquency, it would often be impossible to decide whether it had proceeded from disinclination or inability. The pretence of the latter would always be at hand. And the case must be very flagrant in which its fallacy could be detected with sufficient certainty to justify the harsh expedient of compulsion. It is easy to see that this problem alone, as often as it should occur, would open a wide field for the exercise of factious views, of partiality, and of oppression, in the majority that happened to prevail in the national council.
It seems to require no pains to prove that the States ought not to prefer a national Constitution which could only be kept in motion by the instrumentality of a large army continually on foot to execute the ordinary requisitions or decrees of the government. And yet this is the plain alternative involved by those who wish to deny it the power of extending its operations to individuals. Such a scheme, if practicable at all, would instantly degenerate into a military despotism; but it will be found in every light impracticable. The resources of the Union would not be equal to the maintenance of an army considerable enough to confine the larger States within the limits of their duty; not would the means ever be furnished of forming such an army in the first instance. Whoever considers the populousness and strength of several of these States singly at the present juncture, and looks forward to what they will become, even at the distance of half a century, will at once dismiss as idle and visionary any scheme which aims at regulating their movements by laws to operate upon them in their collective capacities, and to be executed by a coercion applicable to them in the same capacities. A project of this kind is little less romantic than the monster-taming spirit which is attributed to the fabulous heroes and demigods of antiquity.
Even in those confederacies which have been composed of members smaller than many of our counties, the principle of legislation for sovereign States, supported by military coercion, has never been found effectual. It has rarely been attempted to be employed, but against the weaker members; and in most instances attempts to coerce the refractory and disobedient have been the signals of bloody wars, in which one half of the confederacy has displayed its banners against the other half.
The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislation; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the governments of the particular States.
To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.
The plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESISTANCE. If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect of duty may be disguised under affected but unsubstantial provisions, so as not to appear, and of course not to excite any alarm in the people for the safety of the Constitution. The State leaders may even make a merit of their surreptitious invasions of it on the ground of some temporary convenience, exemption, or advantage.
But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defence, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.
If opposition to the national government should arise from the disorderly conduct of refractory or seditious individuals, it could be overcome by the same means which are daily employed against the same evil under the State governments. The magistracy, being equally the ministers of the law of the land, from whatever source it might emanate, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness. As to those partial commotions and insurrections, which sometimes disquiet society, from the intrigues of an inconsiderable faction, or from sudden or occasional ill-humors that do not infect the great body of the community, the general government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single member. And as to those mortal feuds which, in certain conjunctures, spread a conflagration through a whole nation, or through a very large proportion of it, proceeding either from weighty causes of discontent given by the government or from the contagion of some violent popular paroxysm, they do not fall within any ordinary rules of calculation. When they happen, they commonly amount to revolutions and dismemberments of empire. No form of government can always either avoid or control them. It is in vain to hope to guard against events too mighty for human foresight or precaution, and it would be idle to object to a government because
it could not perform impossibilities.
– PUBLIUS
The superiority of influence in favor of the particular governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed. It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.
Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.
This strong propensity of the human heart would find powerful auxiliaries in the objects of State regulation. The variety of more minute interests, which will necessarily fall under the superintendence of the local administrations, and which will form so many rivulets of influence, running through every part of the society, cannot be particularized, without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.
There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,- I mean the ordinary administration of criminal and civil justice. This, of all others, is the most powerful, most universal, and most attractive source of popular obedience and attachment. It is that which, being the immediate and visible guardian of life and property, having its benefits and its terrors in constant activity before the public eye, regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government. This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not infrequently, dangerous rivals to the power of the Union.
The operations of the national government, on the other hand, falling less immediately under the observation of the mass of the citizens, the benefits derived from it will chiefly be perceived and attended to by speculative men. Relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.
The reasoning on this head has been abundantly exemplified by the experience of all federal constitutions with which we are acquainted, and of all others which have borne the least analogy to them.
Though the ancient feudal systems were not, strictly speaking, confederacies, yet they partook of the nature of that species of association. There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience to the persons of whom they held it. Each principal vassal was a kind of sovereign within his particular demesnes. The consequences of this situation were a continual opposition to authority of the sovereign, and frequent wars between the great barons or chief feudatories themselves. The power of the head of the nation was commonly too weak, either to preserve the public peace, or to protect the people against the oppressions of their immediate lords. This period of European affairs is emphatically styled by historians, the times of feudal anarchy.
When the sovereign happened to be a man of vigorous and warlike temper and of superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purposes of a more regular authority. But in general, the power of the barons triumphed over that of the prince; and in many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or States. In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents. The barons, or nobles, equally the enemies of the sovereign and the oppressors of the common people, were dreaded and detested by both; till mutual danger and mutual interest effected a union between them fatal to the power of the aristocracy. Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgement or subversion of the royal authority.
This is not an assertion founded merely in speculation or conjecture. Among other illustrations of its truth which might be cited, Scotland will furnish a cogent example. The spirit of clanship which was, at an early day, introduced into that kingdom, uniting the nobles and their dependents by ties equivalent to those of kindred, rendered the aristocracy a constant overmatch for the power of the monarch, till the incorporation with England subdued its fierce and ungovernable spirit, and reduced it within those rules of subordination which a more rational and more energetic system of civil polity had previously established in the latter kingdom.
The separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government. It will be well if they are not able to counteract its legitimate and necessary authority. The points of similitude consist in the rivalship of power, applicable to both, and in the CONCENTRATION of large portions of the strength of the community into particular DEPOSITS, in one case at the disposal of individuals, in the other case at the disposal of political bodies.
A concise review of the events that have attended confederate governments will further illustrate this important doctrine; an inattention to which has been the great source of our political mistakes, and has given our jealousy a direction to the wrong side. This review shall form the subject of some ensuing papers.
– PUBLIUS
In theory, and upon paper, this apparatus of powers seems amply sufficient for all general purposes. In several material instances, they exceed the powers enumerated in the articles of confederation. The Amphictyons had in their hands the superstition of the times, one of the principal engines by which government was then maintained; they had a declared authority to use coercion against refractory cities, and were bound by oath to exert this authority on the necessary occasions.
Very different, nevertheless, was the experiment from the theory. The powers, like those of the present Congress, were administered by deputies appointed wholly by the cities in their political capacities; and exercised over them in the same capacities. Hence the weakness, the disorders, and finally the destruction of the confederacy. The more powerful members, instead of being kept in awe and subordination, tyrannized successively over all the rest. Athens, as we learn from Demosthenes, was the arbiter of Greece seventy-three years. The Lacedaemonians next governed it twenty-nine years; at a subsequent period, after the battle Leuctra, the Thebans had their turn of domination.
It happened but too often, according to Plutarch, that the deputies of the strongest cities awed and corrupted those of the weaker; and that judgment went in favor of the most powerful party. Even in the midst of defensive and dangerous wars with Persia and Macedon, the members never acted in concert, and were, more or fewer of them, eternally the dupes or the hirelings of the common enemy. The intervals of foreign war were filled up by domestic vicissitudes, convulsions, and carnage.
After the conclusion of the war with Xerxes, it appears that the Lacedaemonians required that a number of the cities should be turned out of the confederacy for the unfaithful part they had acted. The Athenians, finding that the Lacedaemonians would lose fewer partisans by such a measure than themselves, and would become masters of the public deliberations, vigorously opposed and defeated the attempt. This piece of history proves at once the inefficiency of the union, the ambition and jealousy of its most powerful members, and the dependent and degraded condition of the rest. The smaller members, though entitled by the theory of their system to revolve in equal pride and majesty around the common center, had become, in fact, satellites of the orbs of primary magnitude.
Had the Greeks, says the Abbe Milot, been as wise as they were courageous, they would have been admonished by experience of the necessity of a closer union, and would have availed themselves of the peace which followed their success against the Persian arms, to establish such a reformation. Instead of this obvious policy, Athens and Sparta, inflated with the victories and the glory they had acquired, became first rivals and then enemies; and did each other infinitely more mischief than they had suffered from Xerxes. Their mutual jealousies, fears, hatreds, and injuries ended in the celebrated Peloponnesian war; which itself ended in the ruin and slavery of the Athenians who had begun it.
As a weak government, when not at war, is ever agitated by internal dissensions, so these never fail to bring on fresh calamities from abroad. The Phocians having ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyonic council, according to the superstition of the age, imposed a fine on the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, refused to submit to the decree. The Thebans, with others of the cities, undertook to maintain the authority of the Amphictyons, and to avenge the violated god. The latter, being the weaker party, invited the assistance of Philip of Macedon, who had secretly fostered the contest. Philip gladly seized the opportunity of executing the designs he had long planned against the liberties of Greece. By his intrigues and bribes he won over to his interests the popular leaders of several cities; by their influence and votes, gained admission into the Amphictyonic council; and by his arts and his arms, made himself master of the confederacy.
Such were the consequences of the fallacious principle on which this interesting establishment was founded. Had Greece, says a judicious observer on her fate, been united by a stricter confederation, and persevered in her union, she would never have worn the chains of Macedon; and might have proved a barrier to the vast projects of Rome.
The Achaean league, as it is called, was another society of Grecian republics, which supplies us with valuable instruction. The Union here was far more intimate, and its organization much wiser, than in the preceding instance. It will accordingly appear, that though not exempt from a similar catastrophe, it by no means equally deserved it.
The cities composing this league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality. The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled. According to the primitive constitution, there were two praetors associated in the administration; but on trial a single one was preferred.
It appears that the cities had all the same laws and customs, the same weights and measures, and the same money. But how far this effect proceeded from the authority of the federal council is left in uncertainty. It is said only that the cities were in a manner compelled to receive the same laws and usages. When Lacedaemon was brought into the league by Philopoemen, it was attended with an abolition of the institutions and laws of Lycurgus, and an adoption of those of the Achaeans. The Amphictyonic confederacy, of which she had been a member, left her in the full exercise of her government and her legislation. This circumstance alone proves a very material difference in the genius of the two systems.
It is much to be regretted that such imperfect monuments remain of this curious political fabric . Could its interior structure and regular operation be ascertained, it is probable that more light would be thrown by it on the science of federal government, than by any of the like experiments with which we are acquainted. One important fact seems to be witnessed by all the historians who take notice of Achaean affairs. It is, that as well after the renovation of the league by Aratus, as before its dissolution by the arts of Macedon, there was infinitely more of moderation and justice in the administration of its government, and less of violence and sedition in the people, than were to be found in any of the cities exercising singly all the prerogatives of sovereignty. The Abbe Mably, in his observations on Greece, says that the popular government, which was so tempestuous elsewhere, caused no disorders in the members of the Achaean republic, because it was there tempered by the general authority and laws of the confederacy.
We are not to conclude too hastily, however, that faction did not, in a certain degree, agitate the particular cities; much less that a due subordination and harmony reigned in the general system. The contrary is sufficiently displayed in the vicissitudes and fate of the republic.
Whilst the Amphictyonic confederacy remained, that of the Achaeans, which comprehended the less important cities only, made little figure on the theatre of Greece. When the former became a victim to Macedon, the latter was spared by the policy of Philip and Alexander. Under the successors of these princes, however, a different policy prevailed. The arts of division were practiced among the Achaeans. Each city was seduced into a separate interest; the union was dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; others under that of usurpers springing out of their own confusions. Shame and oppression erelong awakened their love of liberty. A few cities reunited. Their example was followed by others, as opportunities were found of cutting off their tyrants.
The league soon embraced almost the whole Peloponnesus. Macedon saw its progress; but was hindered by internal dissensions from stopping it. All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy in Sparta and Athens, of the rising glory of the Achaeans, threw a fatal damp on the enterprise. The dread of the Macedonian power induced the league to court the alliance of the kings of Egypt and Syria, who, as successors of Alexander, were rivals of the king of Macedon. This policy was defeated by Cleomenes, king of Sparta, who was led by his ambition to make an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to Macedon, had interest enough with the Egyptian and Syrian princes to effect a breach of their engagements with the league. The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or of supplicating the aid of Macedon, its former oppressor. The latter expedient was adopted. The contests of the Greeks always afforded a pleasing opportunity to that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly appeared. Cleomenes was vanquished. The Achaeans soon experienced, as often happens, that a victorious and powerful ally is but another name for a master. All that their most abject compliances could obtain from him was a toleration of the exercise of their laws. Philip, who was now on the throne of Macedon, soon provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, though weakened by internal dissensions and by the revolt of Messene, one of its members, being joined by the AEtolians and Athenians, erected the standard of opposition. Finding themselves, though thus supported, unequal to the undertaking, they once more had recourse to the dangerous expedient of introducing the succor of foreign arms. The Romans, to whom the invitation was made, eagerly embraced it. Philip was conquered; Macedon subdued. A new crisis ensued to the league. Dissensions broke out among its members. These the Romans fostered. Callicrates and other popular leaders became mercenary instruments for inveigling their countrymen. The more effectually to nourish discord and disorder the Romans had, to the astonishment of those who confided in their sincerity, already proclaimed universal liberty *020 throughout Greece. With the same insidious views, they now seduced the members from the league, by representing to their pride the violation it committed on their sovereignty. By these arts this union, the last hope of Greece, the last hope of ancient liberty, was torn into pieces; and such imbecility and distraction introduced, that the arms of Rome found little difficulty in completing the ruin which their arts had commenced. The Achaeans were cut to pieces, and Achaia loaded with chains, under which it is groaning at this hour.
I have thought it not superfluous to give the outlines of this important portion of history; both because it teaches more than one lesson, and because, as a supplement to the outlines of the Achaean constitution, it emphatically illustrates the tendency of federal bodies rather to anarchy among the members, than to tyranny in the head.
– PUBLIUS
The diet possesses the general power of legislating for the empire; of making war and peace; contracting alliances; assessing quotas of troops and money; constructing fortresses; regulating coin; admitting new members; and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited. The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions. The members of the diet, as such, are subject in all cases to be judged by the emperor and diet, and in their private capacities by the aulic council and imperial chamber.
The prerogatives of the emperor are numerous. The most important of them are: his exclusive right to make propositions to the diet; to negative its resolutions; to name ambassadors; to confer dignities and titles; to fill vacant electorates; to found universities; to grant privileges not injurious to the states of the empire; to receive and apply the public revenues; and generally to watch over the public safety. In certain cases, the electors form a council to him. In quality of emperor, he possesses no territory within the empire, nor receives any revenue for his support. But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe.
From such a parade of constitutional powers, in the representatives and head of this confederacy, the natural supposition would be, that it must form an exception to the general character which belongs to its kindred systems. Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns, and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.
The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak; of foreign intrusions, and foreign intrigues; of requisitions of men and money disregarded, or partially complied with; of attempts to enforce them, altogether abortive, or attended with slaughter and desolation, involving the innocent with the guilty; of general imbecility, confusion, and misery.
In the sixteenth century, the emperor, with one part of the empire on his side, was seen engaged against the other princes and states. In one of the conflicts, the emperor himself was put to flight, and very near being made prisoner by the elector of Saxony. The late king of Prussia was more than once pitted against his imperial sovereign; and commonly proved an overmatch for him. Controversies and wars among the members themselves have been so common, that the German annals are crowded with the bloody pages which describe them. Previous to the peace of Westphalia, Germany was desolated by a war of thirty years, in which the emperor, with one half of the empire, was on one side, and Sweden, with the other half, on the opposite side. Peace was at length negotiated, and dictated by foreign powers; and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.
If the nation happens, on any emergency, to be more united by the necessity of self-defence, its situation is still deplorable. Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies, that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters. The small body of national troops, which has been judged necessary in time of peace, is defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.
The impossibility of maintaining order and dispensing justice among these sovereign subjects, produced the experiment of dividing the empire into nine or ten circles or districts; of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members.
This experiment has only served to demonstrate more fully the radical vice of the constitution. Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.
We may form some judgment of this scheme of military coercion from a sample given by Thuanus. In Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities which had been reserved to him. In the exercise of these, on some public occasions, outrages were committed on him by the people of the city. The consequence was that the city was put under the ban of the empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it. He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory, *021 he took possession of it in his own name, disarmed, and punished the inhabitants, and reannexed the city to his domains.
It may be asked, perhaps, what has so long kept this disjointed machine from falling entirely to pieces? The answer is obvious: The weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected, and which constitutes him the first prince in Europe;- these causes support a feeble and precarious Union; whilst the repellent quality incident to the nature of sovereignty, and which time continually strengthens, prevents any reform whatever, founded on a proper consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that the neighboring powers would suffer a revolution to take place, which would give to the empire the force and preeminence to which it is entitled. Foreign nations have long considered themselves as interested in the changes made by events in this constitution; and have, on various occasions, betrayed their policy of perpetuating its anarchy and weakness.
If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of. Nor could any proof more striking be given of the calamities flowing from such institutions. Equally unfit for self-government and self-defence, it has long been at the mercy of its powerful neighbors; who have lately had the mercy to disburden it of one third of its people and territories.
The connection among the Swiss cantons scarcely amounts to a confederacy; thought it is sometimes cited as an instance of the stability of such institutions. They have no common treasury; no common troops even in war; no common coin; no common judicatory; nor any other common mark of sovereignty. They are kept together by the peculiarity of their topographical position; by their individual weakness and insignificancy; by the fear of powerful neighbors, to one of which they were formerly subject; by the few sources of contention among a people of such simple and homogeneous manners; by their joint interest in their dependent possessions; by the mutual aid they stand in need of, for suppressing insurrections and rebellions, an aid expressly stipulated, and often required and afforded; and by the necessity of some regular and permanent provision for accommodating disputes among the cantons. The provision is, that the parties at variance shall each choose four judges out of the neutral cantons, who, in case of disagreement, choose an umpire. This tribunal, under an oath of impartiality, pronounces definitive sentence, which all the cantons are bound to enforce. The competency of this regulation may be estimated by a clause in their treaty of 1683, with Victor Amadeus of Savoy; in which he obliges himself to interpose as mediator in disputes between and cantons, and to employ force, if necessary, against the contumacious party.
So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established. Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up, capable of trying its strength, it failed. The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said, in fact, to have severed the league. The Protestant and Catholic cantons have since had their separate diets, where all the most important concerns are adjusted, and which have left the general diet little other business than to take care of the common bailages.
That separation had another consequence, which merits attention. It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France.
– PUBLIUS
The executive magistrate of the union is the stadtholder, who is now an hereditary prince. His principal weight and influence in the republic are derived from this independent title; from his great patrimonial estates; from his family connections with some of the chief potentates of Europe; and, more than all, perhaps, from his being stadtholder in the several provinces, as well as for the union; in which provincial quality he has the appointment of town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and has throughout the power of pardon.
As stadtholder of the union, he has, however, considerable prerogatives. In his political capacity he has authority to settle disputes between the provinces, when other methods fail; to assist at the deliberations of the States-General, and at their particular conferences; to give audiences to foreign ambassadors, and to keep agents for his particular affairs at foreign courts.
In his military capacity he commands the federal troops, provides for garrisons, and in general regulates military affairs; disposes of all appointments, from colonels to ensigns, and of the governments and posts of fortified towns.
In his marine capacity he is admiral-general, and superintends and directs every thing relative to naval forces and other naval affairs; presides in the admiralties in person or by proxy; appoints lieutenant-admirals and other officers; and establishes councils of war, whose sentences are not executed till he approves them.
His revenue, exclusive of his private income, amounts to three hundred thousand florins. The standing army which he commands consists of about forty thousand men.
Such is the nature of the celebrated Belgic confederacy, as delineated on parchment. What the characters which practice has stamped upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war. It was long ago remarked by Grotius, that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.
The union of Utrecht, says another respectable writer, reposes an authority in the States-General, seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.
The same instrument, says another, obliges each province to levy certain contributions; but this article never could, and probably never will, be executed; because the inland provinces, who have little commerce, cannot pay an equal quota.
In matters of contribution, it is the practice to waive the articles of the constitution. The danger of delay obliges the consenting provinces to furnish their quotas, without waiting for the others; and then to obtain reimbursement from the others, by deputations, which are frequent, or otherwise, as they can. The great wealth and influence of the province of Holland enable her to effect both these purposes.
It has more than once happened, that the deficiencies had to be ultimately collected at the point of the bayonet; a thing practicable, though dreadful, in a confederacy where one of the members exceeds in force all the rest, and where several of them are too small to meditate resistance; but utterly impracticable in one composed of members, several of which are equal to each other in strength and resources, and equal singly to a vigorous and persevering defence. Foreign ministers, says Sir William Temple, who was himself a foreign minister, elude matters taken ad referendum, by tampering with the provinces and cities. In 1726, the treaty of Hanover was delayed by these means a whole year. Instances of a like nature are numerous and notorious.
In critical emergencies, the States-General are often compelled to overleap their constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of their heads. The treaty of Westphalia, in 1648, by which their independence was formally and finally recognized, was concluded without the consent of Zealand. Even as recently as the last treaty of peace with Great Britain, the constitutional principle of unanimity was departed from. A weak constitution must necessarily terminate in dissolution, for want of proper powers, or the usurpation of powers requisite for the public safety. Whether the usurpation, when once begun, will stop at the salutary point, or go forward to the dangerous extreme, must depend on the contingencies of the moment. Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.
Notwithstanding the calamities produced by the stadtholdership, it has been supposed that without his influence in the individual provinces, the causes of anarchy manifest in the confederacy would long ago have dissolved it. “Under such a government,” says the Abbe Mably, “the Union could never have subsisted, if the provinces had not a spring within themselves, capable of quickening their tardiness, and compelling them to the same way of thinking. This spring is the stadtholder.” It is remarked by Sir William Temple, “that in the intermissions of the stadtholdership, Holland, by her riches and her authority, which drew the others into a sort of dependence, supplied the place.”
These are not the only circumstances which have controlled the tendency to anarchy and dissolution. The surrounding powers impose an absolute necessity of union to a certain degree, at the same time that they nourish by their intrigues the constitutional vices which keep the republic in some degree always at their mercy.
The true patriots have long bewailed the fatal tendency of these vices, and have made no less than four regular experiments by extraordinary assemblies, convened for the special purpose, to apply a remedy. As many times has their laudable zeal found it impossible to unite the public councils in reforming the known, the acknowledged, the fatal evils of the existing constitution. Let us pause, my fellow-citizens, for one moment, over this melancholy and monitory lesson of history; and with the tear that drops for the calamities brought on mankind by their adverse opinions and selfish passions, let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.
A design was also conceived of establishing a general tax to be administered by the federal authority. This also had its adversaries and failed. This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their destiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom, and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.
I make no apology for having dwelt so long on the contemplation of these federal precedents. Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred. The important truth which it unequivocally pronounces in the present case, is that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy.
– PUBLIUS
The want of a mutual guaranty of the State governments is another capital imperfection in the federal plan. There is nothing of this kind declared in the articles that compose it; and to imply a tacit guaranty from considerations of utility would be a still more flagrant departure from the clause which has been mentioned, than to imply a tacit power of coercion from the like considerations. The want of a guaranty, though it might in its consequences endanger the Union, does not so immediately attack its existence as the want of a constitutional sanction to its laws.
Without a guaranty the assistance to be derived from the Union in repelling those domestic dangers, which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret. A successful faction may erect a tyranny on the ruins of order and law, while no succor could constitutionally be afforded by the Union to the friends and supporters of the government. The tempestuous situation from which Massachusetts has scarcely emerged evinces that dangers of this kind are not merely speculative. Who can determine what might have been the issue of her late convulsions, if the malcontents had been headed by a Caesar or by a Cromwell? Who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut of New York?
The inordinate pride of State importance has suggested to some minds an objection to the principle of a guaranty in the federal government, as involving an officious interference in the domestic concerns of the members. A scruple of this kind would deprive us of one of the principal advantages to be expected from union, and can only flow from a misapprehension of the nature of the provision itself. It could be no impediment to reforms of the State constitutions by a majority of the people in a legal and peaceable mode. This right would remain undiminished. The guaranty could only operate against changes to be effected by violence. Towards the preventions of calamities of this kind, too many checks cannot be provided. The peace of society and the stability of government depend absolutely on the efficacy of the precautions adopted on this head. Where the whole power of the government is in the hands of the people, there is the less pretence for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men. A guaranty by the national authority would be as much levelled against the usurpations of rulers as against the ferments and outrages of faction and sedition in the community.
The principle of regulating the contributions of the States to the common treasury by QUOTAS is another fundamental error in the Confederation. Its repugnancy to an adequate supply of the national exigencies has been already pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the States. Those who have been accustomed to contemplate the circumstances which produce and constitute national wealth must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained.
Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative. If we compare the wealth of the United Netherlands with that of Russia or Germany, or even of France, and if we at the same time compare the total value of the lands and the aggregate population of that contracted district with the total value of the lands and the aggregate population of the immense regions of either of the three last-mentioned countries, we shall at once discover that there is no comparison between the proportion of either of these two objects and that of the relative wealth of those nations. If the like parallel were to be run between several of the American States, it would furnish a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall be convinced that the respective abilities of those States, in relation to revenue, bear little or no analogy to their comparative stock in lands or to their comparative population. The position may be equally illustrated by a similar process between the counties of the same State. No man who is acquainted with the State of New York will doubt that the active wealth of King’s County bears a much greater proportion to that of Montgomery than it would appear to be if we should take either the total value of the lands or the total number of the people as a criterion!
The wealth of nations depends upon an infinite variety of causes. Situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry,- these circumstances and many more, too complex, minute, or adventitious to admit of a particular specification, occasion differences hardly conceivable in the relative opulence and riches of different countries. The consequence clearly is that there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.
This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing a compliance with its requisitions could be devised. The suffering States would not long consent to remain associated upon a principle which distributes the public burdens with so unequal a hand, and which was calculated to impoverish and oppress the citizens of some States, while those of others would scarcely by conscious of the small proportion of the weight they were required to sustain. This, however, is an evil inseparable from the principle of quotas and requisitions.
There is no method of steering clear of this inconvenience, but by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and, in general, all duties upon articles of consumption, may be compared to a fluid, which will, in time, find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his resources. The rich may be extravagant, the poor can be frugal; and private oppression may always be avoided by a judicious selection of objects proper for such impositions. If inequalities should arise in some States from duties on particular objects, these will, in all probability, be counterbalanced by proportional inequalities in other States, from the duties on other objects. In the course of time and things, an equilibrium, as far as it is attainable in so complicated a subject, will be established everywhere. Or, if inequalities should still exist, they would neither be so great in their degree, so uniform in their operation, nor so odious in their appearance, as those which would necessarily spring from quotas, upon any scale that can possibly be devised.
It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed.- that is, an extension of the revenue.
When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.
This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.
Impositions of this kind usually fall under the denomination of indirect taxes, and must for a long time constitute the chief part of the revenue raised in this country. Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of land, or the number of the people, may serve as a standard. The state of agriculture and the populousness of a country have been considered as nearly connected with each other. And, as a rule, for the purpose intended, numbers, in the view of simplicity and certainty, are entitled to a preference. In every country it is a herculean task to obtain a valuation of the land; in a country imperfectly settled and progressive in improvement, the difficulties are increased almost to impracticability. The expense of an accurate valuation is, in all situations, a formidable objection. In a branch of taxation where no limits to the discretion of the government are to be found in the nature of things, the establishment of a fixed rule, not incompatible with the end, may be attended with fewer inconveniences than to leave that discretion altogether at large.
– PUBLIUS
No nation acquainted with the nature of our political association would be unwise enough to enter into stipulations with the United States, by which they conceded privileges of any importance to them, while they were apprised that the engagements on the part of the Union might at any moment be violated by its members, and while they found from experience that they might enjoy every advantage they desired in our markets, without granting us any return but such as their momentary convenience might suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the temporary intercourse between the two countries, should preface its introduction by a declaration that similar provisions in former bills had been found to answer every purpose to the commerce of Great Britain, and that it would be prudent to persist in the plan until it should appear whether the American government was likely or not to acquire greater consistency. *022 Several States have endeavored, by separate prohibitions, restrictions, and exclusions, to influence the conduct of that kingdom in this particular, but the want of concert, arising from the want of a general authority and from clashing and dissimilar views in the State, has hitherto frustrated every experiment of the kind, and will continue to do so as long as the same obstacles to a uniformity of measures continue to exist.
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. “The commerce of the German empire *023 is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.”
Though the genius of the people of this country might never permit this description to be strictly applicable to us, yet we may reasonably expect, from the gradual conflicts of State regulations, that the citizens of each would at length come to be considered and treated by the others in no better light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of the articles of the Confederation, is merely a power of making requisitions upon the States for quotas of men. This practice, in the course of the late war, was found replete with obstructions to a vigorous and to an economical system of defence. It gave birth to a competition between the States which created a kind of auction for men. In order to furnish the quotas required of them, they outbid each other till bounties grew to an enormous and insupportable size. The hope of a still further increase afforded an inducement to those who were disposed to serve to procrastinate their enlistment, and disinclined from them engaging for any considerable periods. Hence, slow and scanty levies of men, in the most critical emergencies of our affairs; short enlistments at an unparalleled expense; continual fluctuations in the troops, ruinous to their discipline and subjecting the public safety frequently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men which were upon several occasions practiced, and which nothing but the enthusiasm of liberty would have induced the people to endure.
This method of raising troops is not more unfriendly to economy and vigor than it is to an equal distribution of the burden. The States near the seat of war, influenced by motives of self-preservation, made efforts to furnish their quotas, which even exceeded their abilities; while those at a distance from danger were, for the most part, as remiss as the others were diligent, in their exertions. The immediate pressure of this inequality was not in this case, as in that of the contributions of money, alleviated by the hope of a final liquidation. The States which did not pay their proportions of money might at least be charged with their deficiencies; but no account could be formed of the deficiencies in the supplies of men. We shall not, however, see much reason to regret the want of this hope, when we consider how little prospect there is that the most delinquent States will ever be able to make compensation for their pecuniary failures. The system of quotas and requisitions, whether it be applied to men or money, is, in every view, a system of imbecility in the Union, and of inequality and injustice among the members.
The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America; *024 and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinction and syllogistic subtleties, to submit their interests to the management and disposal of one third. The larger States would after a while revolt from the idea of receiving the law from the smaller. To acquiesce in such a privation of their due importance in the political scale would be not merely to be insensible to the love of power, but even to sacrifice the desire of equality. It is neither rational to expect the first, nor just to require the last. The smaller States, considering how peculiarly their safety and welfare depend on union, ought readily to renounce a pretension which, if not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or two thirds of the whole number, must consent to the most important resolutions; and it may be thence inferred that nine States would always comprehend a majority of the Union. But this does not obviate the impropriety of an equal vote between States of the most unequal dimensions and populousness; nor is the inference accurate in point of fact; for we can enumerate nine States which contain less than a majority of the people; *025 and it is constitutionally possible that these nine may give the vote. Besides, there are matters of considerable moment determinable by a bare majority; and there are others, concerning which doubts have been entertained, which, if interpreted in favor of the sufficiency of a vote of seven States, would extend its operation to interests of the first magnitude. In addition to this, it is to be observed that there is a probability of an increase in the number of States, and no provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser. Congress, from the non-attendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength, of its government is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.
It is not difficult to discover, that a principle of this kind gives greater scope to foreign corruption, was well as to domestic faction, than that which permits the sense of the majority to decide; though the contrary of this has been presumed. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons. When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done; but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.
Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice. In the first case, he would have to corrupt a smaller number; in the last, a greater number. Upon the same principle, it would be much easier for a foreign power with which we were at war to perplex our councils and embarrass our exertions.
And, in a commercial view, we may be subjected to similar inconveniences. A nation, with which we might have a treaty of commerce, could with much greater facility prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him the equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.
In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great preeminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.
A circumstance which crowns the defects of the Confederation remains yet to be mentioned,- the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These ingredients are both indispensable. If there is in each State a court of final jurisdiction, there may be as many different final determinations on the same point as there are courts. There are endless diversities in the opinions of men. We often see not only different courts but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a number of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorized to settle and declare in the last resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is so compounded that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from differences of opinion there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend that the provisions of the particular laws might be preferred to those of the general laws; for nothing is more natural to men in office than to look with peculiar deference towards that authority to which they owe their official existence. The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?
In this review of the Confederation, I have confined myself to the exhibition of its most material defects, passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.
The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A Single assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the federal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States.
If that plan should not be adopted, and if the necessity of the Union should be able to withstand the ambitious aims of those men who may indulge magnificent schemes of personal aggrandizement from its dissolution, the probability would be that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force and energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived.
Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE.
Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and 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 had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.
– PUBLIUS
The principal purposes to be answered by union are these- the common defence of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.
The authorities essential to the common defence are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extend and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defence.
This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained.
Whether there ought to be a federal government intrusted with the care of the common defence is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits, unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy- that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES.
Defective as the present Confederation has been proved to be, this principle appears to have been fully recognized by the framers of it, though they have not made proper or adequate provision for its exercise. Congress have an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their operations. As their requisitions are made constitutionally binding upon the States, who are in fact under the most solemn obligations to furnish the supplies required of them, the intention evidently was that the United States should command whatever resources where by them judged requisite to the “common defence and general welfare.” It was presumed that a sense of their true interests, and a regard to the dictates of good faith, would be found sufficient pledges for the punctual performance of the duty of the members to the federal head.
The experiment has, however, demonstrated that this expectation was ill-founded and illusory; and the observations, made under the last head, will, I imagine, have sufficed to convince the impartial and discerning that there is an absolute necessity for an entire change in the first principles of the system; that if we are in earnest about giving the Union energy and duration, we must abandon the vain project of legislating upon the States in their collective capacities; we must extend the laws of the federal government to the individual citizens of America; we must discard the fallacious scheme of quotas and requisitions, as equally impracticable and unjust. The result from all this is that the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.
If the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government, the essential point which will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be done, which shall appertain to the different provinces or departments of power, allowing to each the most ample authority for fulfilling the objects committed to its charge. Shall the Union be constituted the guardian of the common safety? Are fleets and armies and revenues necessary to this purpose? The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend. Is the administration of justice between the citizens of the same State the proper department of the local governments? These must possess all the authorities which are connected with this object, and with every other that may be allotted to their particular cognizance and direction. Not to confer in each case a degree of power commensurate to the end would be to violate the most obvious rules of prudence and propriety, and improvidently to trust the great interests of the nation to hands which are disabled from managing them with vigor and success.
Who so likely to make suitable provisions for the public defence as that body to which the guardianship of the public safety is confided; which, as the center of information, will best understand the extent and urgency of the dangers that threaten; as the representative of the WHOLE, will feel itself most deeply interested in the preservation of every part; which, from the responsibility implied in the duty assigned to it, will be most sensibly impressed with the necessity of proper exertions; and which, by the extension of its authority throughout the States, can alone establish uniformity and concert in the plans and measures by which the common safety is to be secured? Is there not a manifest inconsistency in devolving upon the federal government the care of the general defence, and leaving in the State governments the effective powers by which it is to be provided for? Is not a want of co-operation the infallible consequence of such a system? And will not weakness, disorder, and undue distribution of the burdens and calamities of war, an unnecessary and intolerable increase of expense, be its natural and inevitable concomitants? Have we not had unequivocal experience of its effects in the course of the revolution which we have just accomplished.
Every view we may take of the subject, as candid inquirers after truth, will serve to convince us, that it is both unwise and dangerous to deny the federal government and unconfined authority, as to all those objects which are intrusted to its management. It will indeed deserve the most vigilant and careful attention of the people to see that it be modelled in such a manner as to admit of its being safely vested with the requisite powers. If any plan which has been, or may be, offered to our consideration, should not, upon a dispassionate inspection, be found to answer this description, it ought to be rejected. A government, the constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. And the adversaries of the plan promulgated by the convention ought to have confined themselves to showing, that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people. They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers. The POWERS are not too extensive for the OBJECTS of federal administration, or, in other words, for the management of our NATIONAL INTERESTS; not can any satisfactory argument be framed to show that they are chargeable with such an excess. If it be true, as has been insinuated by some of the writers on the other side, that the difficulty arises from the nature of the thing, and that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that ought to contract our views, and resort to the expedient of separate confederacies, which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative.
I trust, however, that the impracticability of one general system cannot be shown. I am greatly mistaken, if any thing of weight has yet been advanced of this tendency; and I flatter myself that the observations which have been made in the course of these papers have served to place the reverse of that position in as clear a light as any matter still in the womb of time and experience can be susceptible of. This, at all events, must be evident, that the very difficulty itself, drawn from the extent of the country, is the strongest argument in favor of an energetic government; for any other can certainly never preserve the Union of so large an empire. If we embrace the tenets of those who oppose the adoption of the proposed Constitution, as the standard of our political creed, we cannot fail to verify the gloomy doctrines which predict the impracticability of a national system pervading entire limits of the present Confederacy.
– PUBLIUS
A stranger to our politics, who was to read our newspapers at the present juncture, without having previously inspected the plan reported by the convention, would be naturally led to one of two conclusions: either that it contained a positive injunction, that standing armies should be kept up in time of peace; or that it vested in the EXECUTIVE the whole power of levying troops, without subjecting his discretion, in any shape, to the control of legislature.
If he came afterwards to peruse the plan itself, he would be surprised to discover that neither the one nor the other was the case; that the whole power of raising armies was lodged in the Legislature, not in the Executive; that this legislature was to be a popular body, consisting of the representatives of the people periodically elected; and that instead of the provision he had supposed in favor of standing armies, there was to be found, in respect to this object, an important qualification even of the legislative discretion, in that clause which forbids the appropriation of money for the support of an army for any longer period than two years- a precaution which, upon a nearer view of it, will appear to be a great and real security against the keeping up of troops without evident necessity.
Disappointed in his first surmise, the person I have supposed would be apt to pursue his conjectures a little further. He would naturally say to himself, it is impossible that all this vehement and pathetic declamation can be without some colorable pretext. It must needs be that this people, so jealous of their liberties, have, in all the preceding models of the constitutions which they have established, inserted the most precise and rigid precautions on this point, the omission of which, in the new plan, has given birth to all this apprehension and clamor.
If, under this impression, he proceeded to pass in review the several State constitutions, how great would be his disappointment to find that two only of them *026 contained an interdiction of standing armies in time of peace; that the other eleven had either observed a profound silence on the subject, or had in express terms admitted the right of the Legislature to authorize their existence.
Still, however, he would be persuaded that there must be some plausible foundation for the cry raised on this head. He would never be able to imagine, while any source of information remained unexplored, that it was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive, or by the overflowings of a zeal too intemperate to be ingenuous. It would probably occur to him that he would be likely to find the precautions he was in search of in the primitive compact between the States. Here, at length, he would expect to meet with a solution of the enigma. No doubt, he would observe to himself, the existing Confederation must contain the most explicit provisions against military establishments in time of peace; and a departure from this model, in a favorite point, has occasioned the discontent which appears to influence these political champions.
If he should now apply himself to a careful and critical survey of the articles of Confederation, his astonishment would not only be increased, but would acquire a mixture of indignation, at the unexpected discovery, that these articles, instead of containing the prohibition he looked for, and though they had, with jealous circumspection, restricted the authority of the State legislatures in this particular, had not imposed a single restraint on that of the United States. If he happened to be a man of quick sensibility, or ardent temper, he could now no longer refrain from regarding these clamors as the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country! How else, he would say, could the authors of them have been tempted to vent such loud censures upon that plan, about a point in which it seems to have conformed itself to the general sense of America as declared in its different forms of government, and in which it has even superadded a new and powerful guard unknown to any of them? If, on the contrary, he happened to be a man of calm and dispassionate feelings, he would indulge a sigh for the frailty of human nature, and would lament that, in a matter so interesting to the happiness of millions, the true merits of the question should be perplexed and entangled by expedients so unfriendly to an impartial and right determination. Even such a man could hardly forbear remarking that a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.
But however little this objection may be countenanced, even by precedents among ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From a close examination it will appear that restraints upon the discretion of the legislature in respect to military establishments in time of peace would be improper to be imposed, and if imposed, from the necessities of society, would be unlikely to be observed.
Though a wide ocean separates the United States from Europe, yet there are various considerations that warn us against an excess of confidence or security. On one side of us, and stretching far into our rear, are growing settlements subject to the dominion of Britain. On the other side, and extending to meet the British settlements, are colonies and establishments subject to the dominion of Spain. This situation and the vicinity of the West India Islands, belonging to these two powers, create between them, in respect to their American possessions and in relation to us, a common interest. The savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them. The improvements in the art of navigation have, as to the facility of communication, rendered distant nations, in a great measure, neighbors. Britain and Spain are among the principal maritime powers of Europe. A future concert of views between these nations ought not to be regarded as improbable. The increasing remoteness of consanguinity is every day diminishing the force of the family compact between France and Spain. And politicians have ever with great reason considered the ties of blood as feeble and precarious links of political connection. These circumstances combined admonish us not to be too sanguine in considering ourselves as entirely out of the reach of danger.
Previous to the Revolution, and ever since the peace, there has been a constant necessity for keeping small garrisons on our Western frontier. No person can doubt that these will continue to be indispensable, if it should only be against the ravages and depredations of the Indians. These garrisons must either be furnished by occasional detachments from the militia, or by permanent corps in the pay of the government. The first is impracticable; and if practicable, would be pernicious. The militia would not long, if at all, submit to be dragged from their occupations and families to perform that most disagreeable duty in times of profound peace. And if they could be prevailed upon or compelled to do it, the increased expense of a frequent rotation of service, and the loss of labor and disconcertion of the industrious pursuits of individuals, would form conclusive objections to the scheme. It would be as burdensome and injurious to the public as ruinous to private citizens. The latter resource of permanent corps in the pay of the government amounts to a standing army in time of peace, a small one, indeed, but not the less real for being small. Here is a simple view of the subject that shows us at once the impropriety of a constitutional interdiction of such establishments, and the necessity of leaving the matter to the discretion and prudence of the legislature.
In proportion to our increase in strength, it is probable, nay, it may be said certain, that Britain and Spain would augment their military establishments in our neighborhood. If we should not be willing to be exposed, in a naked and defenceless condition, to their insults and encroachments, we should find it expedient to increase our frontier garrisons in some ratio to the force by which our Western settlements might be annoyed. There are, and will be, particular posts, the possession of which will include the command of large districts of territory, and facilitate future invasions of the remainder. It may be added that some of those posts will be keys to the trade with the Indian nations. Can any man think it would be wise to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part would be to desert all the usual maxims of prudence and policy.
If we mean to be a commercial people, or even to be secure on our Atlantic side, we must endeavor, as soon as possible, to have a navy. To this purpose there must be dock-yards and arsenals; and for the defence of these, fortifications, and probably garrisons. When a nation has become so powerful by sea that it can protect its dock-yards by its fleets, this supersedes the necessity of garrisons for that purpose; but where naval establishments are in their infancy, moderate garrisons will, in all likelihood, be found an indispensable security against descents for the destruction of the arsenals and dock-yards, and sometimes of the fleet itself.
– PUBLIUS
If, in addition to this immense advantage, the ambition of the members should be stimulated by the separate and independent possession of military forces, it would afford too strong a temptation and too great a facility to them to make enterprises upon, and finally to subvert, the constitutional authority of the union. On the other hand, the liberty of the people would be less safe in this state of things than in that which left the national forces in the hands of the national government. As far as an army may be considered as a dangerous weapon of power, it had better be in those hands of which the people are most likely to be jealous than in those of which they are least likely to be jealous. For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.
The framers of the existing Confederation, fully aware of the danger to the Union from the separate possession of military forces by the States, have, in express terms, prohibited them from having either ships or troops, unless with the consent of Congress. The truth is, that the existence of a federal government and military establishments under State authority are not less at variance with each other than a due supply of the federal treasury and the system of quotas and requisitions.
There are other lights besides those already taken notice of, in which the impropriety of restraints on the discretion of the national legislature will be equally manifest. The design of the objection, which has been mentioned, is to preclude standing armies in time of peace, though we have never been informed how far it is designed the prohibition should extend: whether to raising armies as well as to keeping them up in a season of tranquillity or not. If it be confined to the latter it will have no precise signification, and it will be ineffectual for the purpose intended. When armies are once raised what shall be denominated “keeping them up,” contrary to the sense of the Constitution? What time shall be requisite to ascertain the violation? Shall it be a week, a month, a year? Or shall we say they may be continued as long as the danger which occasioned their being raised continues? This would be to admit that they might be kept up in time of peace, against threatening or impending danger, which would be at once to deviate from the literal meaning of the prohibition, and to introduce an extensive latitude of construction. Who shall judge of the continuance of the danger? This must undoubtedly be submitted to the national government, and the matter would then be brought to this issue, that the national government, to provide against apprehended danger, might in the first instance raise troops, and might afterwards keep them on foot as long as they supposed the peace or safety of the community was in any degree of jeopardy. It is easy to perceive that a discretion so latitudinary as this would afford ample room for eluding the force of the provision.
The supposed utility of a provision of this kind can only be founded on the supposed probability, or at least possibility, of a combination between the executive and the legislative, in some scheme of usurpation. Should this at any time happen, how easy would it be to fabricate pretences of approaching danger! Indian hostilities, instigated by Spain or Britain, would always be at hand.
Provocations to produce the desired appearances might even be given to some foreign power, and appeased again by timely concessions. If we can reasonably presume such a combination to have been formed, and that the enterprise is warranted by a sufficient prospect of success, the army, when once raised, from whatever cause, or on whatever pretext, may be applied to the execution of the project.
If, to obviate this consequence, it should be resolved to extend the prohibition to the raising of armies in time of peace, the United States would then exhibit the most extraordinary spectacle which the world has yet seen, that of a nation incapacitated by its Constitution to prepare for defence, before it was actually invaded. As the ceremony of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our territories must be waited for, as the legal warrant to the government to begin its levies of men for the protection of the State. We must receive the blow, before we could even prepare to return it. All that kind of policy by which nations anticipate distant danger, and meet the gathering storm, must be abstained from, as contrary to the genuine maxims of a free government. We must expose our property and liberty to the mercy of foreign invaders, and invite them by our weakness to seize the naked and defenceless prey, because we are afraid that rulers, created by our choice, dependent on our will, might endanger that liberty, by an abuse of the means necessary to its preservation.
Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defence. This doctrine, in substance, had like to have lost us our independence. It cost millions to the United States that might have been saved. The facts which, from our own experience, forbid a reliance of this kind, are too recent to permit us to be the dupes of such a suggestion. The steady operations of war against a regular and disciplined army can only be successfully conducted by a force of the same kind. Considerations of economy, not less than of stability and vigor, confirm this position. The American militia, in the course of the late war, have, by their valor on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
All violent policy, as it is contrary to the natural and experienced course of human affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth of this remark. The Bill of Rights of that State declares that standing armies are dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the existence of partial disorders in one or two of her counties, has resolved to raise a body of troops; and in all probability will keep them up as long as there is any appearance of danger to the public peace. The conduct of Massachusetts affords a lesson on the same subject, though on different ground. That State (without waiting for the sanction of Congress, as the articles of the Confederation require) was compelled to raise troops to quell a domestic insurrection, and still keeps a corps in pay to prevent a revival of the spirit of revolt. The particular constitution of Massachusetts opposed no obstacle to the measure; but the instance is still of use to instruct us that cases are likely to occur under our government, as well as under those of other nations, which will sometimes render a military force in time of peace essential to the security of the society, and that it is therefore improper in this respect to control the legislative discretion. It also teaches us, in its application to the United States, how little the rights of a feeble government are likely to be respected, even by its own constituents.
And it teaches us, in addition to the rest, how unequal parchment provisions are to a struggle with public necessity. It was a fundamental maxim of the Lacedaemonian commonwealth, that the post of admiral should not be conferred twice on the same person. The Peloponnesian confederates, having suffered a severe defeat at sea from the Athenians, demanded Lysander, who had before served with success in that capacity, to command the combined fleets. The Lacedaemonians, to gratify their allies, and yet preserve the semblance of an adherence to their ancient institutions, had recourse to the flimsy subterfuge of investing Lysander with the real power of admiral, under the normal title of vice-admiral. The instance is selected from among a multitude that might be cited to confirm the truth already advanced and illustrated by domestic examples; which is, that nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society. Wise politicians will be cautious about fettering the governments with restrictions that cannot be observed, because they know that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence which ought to be maintained in the breast of rulers towards the constitution of a country, and forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent and palpable.
– PUBLIUS
In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledge prerogative of the crown, Charles II. had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II. increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that “the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of Parliament, was against law.”
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too well-informed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
From the same source, the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of a revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raised the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. The attempts of two of the States to restrict the authority of the legislature in the article of military establishments are of the number of the instances. The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies. Even in some of the States, where this error was not adopted, we find unnecessary declarations that standing armies ought not be kept up, in time of peace, WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the reason which had introduced a similar provision into the English Bill of Rights is not applicable to any of the State constitutions. The power of raising armies at all, under those constitutions, can by no construction be deemed to reside anywhere else, than in the legislatures themselves; and it was superfluous, if not absurd, to declare that a matter should not be done without the consent of a body, which alone had the power of doing it. Accordingly, in some of those constitutions, and among others, in that of this State of New York, which has been justly celebrated, both in Europe and America, as one of the best of the forms of government established in this country, there is a total silence upon the subject.
It is remarkable, that even in the two States which seem to have meditated an interdiction of military establishments in time of peace, the mode of expression made use of is rather cautionary than prohibitory. It is not said that standing armies shall not be kept up, but that they ought not to be kept up in time of peace. This ambiguity of terms appears to have been the result of a conflict between jealousy and conviction; between the desire of excluding such establishments at all events, and the persuasion that an absolute exclusion would be unwise and unsafe.
Can it be doubted that such a provision, whenever the situation of public affairs was understood to require a departure form it, would be interpreted by the legislature into a mere admonition, and would be made to yield to the necessities or supposed necessities of the State?
Let the fact already mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is the use of such a provision, if it cease to operate the moment there is an inclination to disregard it?
Let us examine whether there be any comparison, in point of efficacy, between the provisions alluded to and that which is contained in the new Constitution, for restraining the appropriations of money for military purposes to the period of two years. The former, by aiming at too much, is calculated to effect nothing; the latter, by steering clear of an imprudent extreme, and by being perfectly compatible with a proper provision for the exigencies of the nation, will have a salutary and powerful operation.
The legislature of the United States will be obliged, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not at liberty to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be, no doubt, persons in the national legislature willing enough to arraign the measures and criminate the views of the majority. The provision for the support of a military force will always be a favorable topic for declamation. As often as the question comes forward, the public attention will be roused and attracted to the subject, by the party in opposition; and if the majority should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.
Schemes to subvert the liberties of a great community require time to mature them for execution. An army, so large as seriously to menace those liberties, could only be formed by progressive augmentations; which would suppose, not merely a temporary combination between the legislature and executive, but a continued conspiracy for a series of time. Is it probable that such a combination would exist at all? Is it probable that it would be preserved in, and transmitted along through all the successive variations in a representative body, which biennial elections would naturally produce in both houses? Is it presumable, that every man, the instant he took his seat in the national Senate or House of Representatives, would commence a traitor to his constituents and to his country? Can it be supposed that there would not be found one man, discerning enough to detect so atrocious a conspiracy, or bold or honest enough to apprise his constituents of their danger? If such presumptions can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.
If such suppositions could even be reasonably made, still the concealment of the design, for any duration, would be impracticable.
It would be announced, by the very circumstance or augmenting the army to so great an extent in time of profound peace. What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people could be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery.
It has been said that the provision which limits the appropriation of money for the support of any army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature. But the question again recurs, upon what pretence could he be put in possession of a force of that magnitude in time of peace? If we suppose it to have been created in consequence of some domestic insurrection or foreign war, then it becomes a case not within the principles of the objection; for this is levelled against the power of keeping up troops in time of peace.
Few persons will be so visionary as seriously to contend that military forces ought not to be raised to quell a rebellion or resist an invasion; and if the defence of the community under such circumstances should make it necessary to have an army so numerous as to hazard its liberty, this is one of those calamities for which there is neither preventative nor cure. It cannot be provided against by any possible form of government; it might even result from a simple league offensive and defensive, if it should ever be necessary for the confederates or allies to form an army for common defence.
But is an evil infinitely less likely to attend us in a united than in a disunited state; nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the latter situation. It is not easy to conceive a possibility that dangers so formidable can assail the whole Union, as to demand a force considerable enough to place our liberties in the least jeopardy, especially if we take into our view the aid to be derived from the militia, which ought always to be counted upon as a valuable and powerful auxiliary. But in a state of disunion (as has been fully shown in another place), the contrary of this supposition would become not only probable, but almost unavoidable.
– PUBLIUS
Several additional reasons of considerable force, to fortify that probability, will occur when we come to survey, with a more critical eye, the interior structure of the edifice which we are invited to erect. It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.
The hope of impunity is a strong incitement to sedition; the dread of punishment, a proportionably strong discouragement to it. Will not the government of the Union, which, if possessed of a due degree of power, can call to its aid the collective resources of the whole Confederacy, be more likely to repress the former sentiment and to inspire the latter, than that of a single State, which can only command the resources within itself? A turbulent faction in a State may easily suppose itself able to contend with the friends to the government in that State; but it can hardly be so infatuated as to imagine itself a match for the combined efforts of the Union. If this reflection be just, there is less danger of resistance from irregular combinations of individuals to the authority of the Confederacy than to that of a single member.
I will, in this place, hazard an observation, which will not be the less just because to some it may appear new; which is, that the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life; the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit. A thing that rarely strikes his senses will generally have but little influence upon his mind. A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people. The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern; and will have less occasion to recur to force, in proportion to the familiarity and comprehensiveness of its agency. The more it circulates through those channels and currents in which the passions of mankind naturally flow, the less will it require the aid of the violent and perilous expedients of compulsion.
One thing, at all events, must be evident, that a government like the one proposed would bid much fairer to avoid the necessity of using force than the species of league contended for by most of its opponents, the authority of which should only operate upon the States in their political or collective capacities. It has been shown that in such a Confederacy there can be no sanction for the laws but force; that frequent delinquencies in the members are the natural offspring of the very frame of the government; and that as often as these happen, they can only be redressed, if at all, by war and violence.
The plan reported by the convention, by extending the authority of the federal head to the individual citizens of the several States, will enable the government to employ the ordinary magistracy of each, in the execution of its laws. It is easy to perceive that this will tend to destroy, in the common apprehension, all distinction between the sources from which they might proceed; and will give the federal government the same advantage for securing a due obedience to its authority which is enjoyed by the government of each State, in addition to the influence on public opinion which will result from the important consideration of its having power to call to its assistance and support the resources of the whole Union. It merits particular attention in this place, that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath.
Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws. *027 Any man who will pursue, by his own reflections, the consequences of this situation, will perceive that there is good ground to calculate upon a regular and peaceable execution of the laws of the Union, if its powers are administered with a common share of prudence. If we will arbitrarily suppose the contrary, we may deduce any inferences we please from the supposition; for it is certainly possible, by an injudicious exercise of the authorities of the best government that ever was, or ever can be instituted, to provoke and precipitate the people into the wildest excesses. But though the adversaries of the proposed Constitution should presume that the national rulers would be insensible to the motives of public good, or to the obligations of duty, I would still ask them how the interests of ambition, or the views of encroachment, can be promoted by such a conduct?
– PUBLIUS
If, on the contrary, the insurrection should pervade a whole State, or a principal part of it, the employment of a different kind of force might become unavoidable. It appears that Massachusetts found it necessary to raise troops for repressing the disorders within that State; that Pennsylvania, from the mere apprehension of commotions among a part of her citizens, has thought proper to have recourse to the same measure. Suppose the State of New York had been inclined to re-establish her lost jurisdiction over the inhabitants of Vermont, could she have hoped for success in such an enterprise from the efforts of the militia alone? Would she not have been compelled to raise and to maintain a more regular force for the execution of her design? If it must then be admitted that the necessity of recurring to a force different from the militia, in cases of this extraordinary nature, is applicable to the State governments themselves, why should the possibility, that the national government might be under a like necessity, in similar extremities, be made an objection to its existence? Is it not surprising that men who declare an attachment to the Union in the abstract should urge as an objection to the proposed Constitution what applies with tenfold weight to the plan for which they contend; and what, as far as it has any foundation in truth, is an inevitable consequence of civil society upon an enlarged scale? Who would not prefer that possibility to the unceasing agitations and frequent revolutions which are the continual scourges of petty republics?
Let us presume this examination in another light. Suppose, in lieu of one general system, two, or three, or even four Confederacies were to be formed, would not the same difficulty oppose itself to the operations of either of these Confederacies? Would not each of them be exposed to the same casualties; and when these happened, be obliged to have recourse to the same expedients for upholding its authority which are objected to in a government for all the States?
Would the militia, in this supposition, be more ready or more able to support the federal authority than in the case of a general union? All candid and intelligent men must, upon due consideration, acknowledge that the principle of the objection is equally applicable to either of the two cases; and that whether they have one government for all the States, or different governments for different parcels of them, or even if there should be an entire separation of the States, there might sometimes be a necessity to make use of a force constituted differently from the militia, to preserve the peace of the community and to maintain the just authority of the laws against those violent invasions of them which amount to insurrections and rebellions.
Independent of all other reasonings upon the subject, it is a full answer to those who require a more peremptory provision against military establishments in time of peace, to say that the whole powers of the proposed government is to be in the hands of the representatives of the people. This is the essential, and, after all, only efficacious security for the rights and privileges of the people, which is attainable in civil society. *028 If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defence which is paramount to all positive forms of government, and which against the usurpations of the national rulers may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons intrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defence. The citizens must rush tumultuously to arms, without concert, without system, without resource, except in their courage and despair. The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo. The smaller the extent of the territory, the more difficult will it be for the people to form a regular or systematic plan of opposition, and the more easy will it be to defeat their early efforts. Intelligence can be more speedily obtained of their preparations and movements, and the military force in the possession of the usurpers can be more rapidly directed against the part where the opposition has begun. In this situation there must be a peculiar coincidence of circumstances to insure success to the popular resistance.
The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them. The natural strength of the people in a large community, in proportion to the artificial strength of the government, is greater than in a small, and of course more competent to a struggle with the attempts of the government to establish a tyranny. But in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!
It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of the civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
The great extent of the country is a further security. We have already experienced its utility against the attacks of a foreign power. And it would have precisely the same effect against the enterprises of ambitious rulers in the national councils. If the federal army should be able to quell the resistance of one State, the distant States would have it in their power to make head with fresh forces. The advantages obtained in one place must be abandoned to subdue the opposition in others; and the moment the part which had been reduced to submission was left to itself, its efforts would be renewed, and its resistance revive.
We should recollect that the extent of the military force must, at all events, be regulated by the resources of the country. For a long time to come, it will not be possible to maintain a large army; and as the means of doing this increase, the population and natural strength of the community will proportionably increase. When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defence, with all the celerity, regularity, and system of independent nations? The apprehension may be considered as a disease, for which there can be found no cure in the resources of argument and reasoning.
– PUBLIUS
In order to cast an odium upon the power of calling forth the militia to execute the laws of the Union, it has been remarked that there is nowhere any provision in the proposed Constitution for calling out the POSSE COMITATUS, to assist the magistrate in the execution of his duty, whence it has been inferred that military force was intended to be his only auxiliary. There is a striking incoherence in the objections which have appeared, and sometimes even from the same quarter, not much calculated to inspire a favorable opinion of the sincerity of fair dealing of their authors. The same persons who tell us in one breath that the powers of the federal government will be despotic and unlimited inform us in the next that it has not authority sufficient even to call out the POSSE COMITATUS. The latter, fortunately, is as much short of the truth as the former exceeds it.
It would be as absurd to doubt that a right to pass all laws necessary and proper to execute its declared powers would include that of requiring the assistance of the citizens to the officers, who may be intrusted with the execution of those laws, as it would be to believe that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it. It being therefore evident that the supposition of a want of power to require the aid of the POSSE COMITATUS is entirely destitute of color, it will follow that the conclusion which has been drawn from it, in its application to the authority of the federal government over the militia, is as uncandid as it is illogical. What reason could there be to infer that force was intended to be the sole instrument of authority, merely because there is a power to make use of it when necessary? What shall we think of the motives which could induce men of sense to reason in this manner? How shall we prevent a conflict between charity and judgment?
By a curious refinement upon the spirit of republican jealously, we are even taught to apprehend danger from the militia itself, in the hands of the federal government. It is observed that select corps may be formed, composed of the young and ardent, who may be rendered subservient to the views of arbitrary power. What plan for the regulation of the militia may be pursued by the national government is impossible to be foreseen. But so far from viewing the matter in the same light with those who object to select corps as dangerous, were the Constitution ratified, and were I to deliver my sentiments to a member of the federal legislature from this State on the subject of a militia establishment, I should hold to him, in substance, the following discourse: “The project of disciplining all the militia of the United States is as futile as it would be injurious, if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss. It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent would be unwise; and the experiment, if made, could not succeed, because if would not long be endured. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
“But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable, yet is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia.
The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia ready to take the field whenever the defence of the State shall require it. This will not only lessen the call of military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
Thus differently from the adversaries of the proposed Constitution should I reason on the same subject, deducing arguments of safety from the very sources which they represent as fraught with danger and perdition. But how the national legislature may reason on the point is a thing which neither they nor I can foresee.
There is something so far-fetched, and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where, in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen, and who participate with them in the same feelings, sentiments, habits, and interests? What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its services when necessary, while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.
In reading many of the publications against the Constitution, a man is apt to imagine that he is perusing some ill-written tale or romance, which, instead of natural and agreeable images, exhibits to the mind nothing but frightful and distorted shapes- – Gorgons, hydras, and chimeras dire; – discoloring and disfiguring whatever it represents, and transforming every thing it touches into a monster.
A sample of this is to be observed in the exaggerated and improbable suggestions which have taken place respecting the power of calling for the services of the militia. That of New Hampshire is to be marched to Georgia, of Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake Champlain. Nay, the debt due to the French and Dutch are to be paid in militiamen instead of louis d’ors and ducats. At one moment there is to be a large army to lay prostrate the liberties of the people; at another moment the militia of Virginia are to be dragged from their homes five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do the persons who rave at this rate imagine that their art or their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?
If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would be the militia, irritated by being called upon to undertake a distant and hopeless expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, but to the seat of the tyrants, who had meditated so foolish as well as so wicked a project, to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and incensed people? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation? Do they begin by exciting the detestation of the very instruments of their intended usurpations? Do they usually commence their career by wanton and disgustful acts of power, calculated to answer no end, but to draw upon themselves universal hatred and execration? Are suppositions of this sort the sober admonitions of discerning patriots to a discerning people? Or are they the inflammatory ravings of incendiaries or distempered enthusiasts? If we were even to suppose the national rulers actuated by the most ungovernable ambition, it is impossible to believe that they would employ such preposterous means to accomplish their design.
In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition. This was frequently the case, in respect to the first object, in the course of the late war; and this mutual succor is, indeed, a principal end of our political association. If the power of affording it be placed under the direction of the Union, there will be no danger of a supine and listless inattention to the dangers of a neighbor, till its near approach had superadded the incitements of self-preservation to the too feeble impulses of duty and sympathy.
– PUBLIUS
In the Ottoman or Turkish empire, the sovereign, though in other respects absolute master of the lives and fortunes of his subjects, has no right to impose a new tax. The consequence is that he permits the bashaws or governors of provinces to pillage the people without mercy; and, in turn, squeezes out of them the sums of which he stands in need, to satisfy his own exigencies and those of the state. In America, from a like cause, the government of the Union has gradually dwindled into a state of decay, approaching nearly to annihilation. Who can doubt that the happiness of the people in both countries would be promoted by competent authorities in the proper hands, to provide the revenues which the necessities of the public might require?
The present Confederation, feeble as it is, intended to repose in the United States as unlimited power of providing for the pecuniary wants of the Union. But proceeding upon an erroneous principle, it has been done in such a manner as entirely to have frustrated the intention. Congress, by the articles which composed that compact (as has already been stated), are authorized to ascertain and call for any sums of money necessary, in their judgment, to the service of the United States; and their requisitions, if conformable to the rule of apportionment, are in every constitutional sense obligatory upon the States. These have no right to question the propriety of the demand; no discretion beyond that of devising the ways and means of furnishing the sums demanded. But though this be strictly and truly the case, though the assumption of such a right would be an infringement of the articles of Union, though it may seldom or never have been avowedly claimed, yet in practice it has been constantly exercised, and would continue to be so, as long as the revenues of the Confederacy should remain dependent on the intermediate agency of its members. What the consequences of this system have been is within the knowledge of every man the least conversant in our public affairs, and has been amply unfolded in different parts to these inquiries. It is this which has chiefly contributed to reduce us to a situation, which affords ample cause both of mortification to ourselves, and of triumph to our enemies.
What remedy can there be for this situation, but in a change of the system which has produced it- in a change of the fallacious and delusive system of quotas and requisitions? What substitute can there be imagined for this ignis fatuus in finance, but that of permitting the national government to raise its own revenues by the ordinary methods of taxation authorized in every well-ordered constitution of civil government? Ingenious men may declaim with plausibility on any subject; but no human ingenuity can point out any other expedient to rescue us from the inconveniences and embarrassments naturally resulting from defective supplies of the public treasury.
The more intelligent adversaries of the new Constitution admit the force of this reasoning; but they qualify their admission by a distinction between what they call internal and external taxation. The former they would reserve to the State governments, the latter, which they explain into commercial imposts, or rather duties on imported articles, they declare themselves willing to concede to the federal head. This distinction, however, would violate the maxim of good sense and sound policy, which dictates that every POWER ought to be in proportion to its OBJECT; and would still leave the general government in a kind of tutelage to the State governments, inconsistent with every idea of vigor or efficiency. Who can pretend that commercial imposts are, or would be, alone equal to the present and future exigencies of the Union? Taking into the account the existing debt, foreign and domestic, upon any plan of extinguishment which a man moderately impressed with the importance of public justice and public credit could approve, in addition to the establishments which all parties will acknowledge to be necessary, we could not reasonably flatter ourselves, that this resource alone, upon the most improved scale, would even suffice for its present necessities.
Its future necessities admit not of calculation or limitation; and upon the principle, more than once adverted to, the power of making provision for them as they arise ought to be equally unconfined. believe it may be regarded as a position warranted by the history of mankind, that, in the usual progress of things, the necessities of a nation, in every stage of existence, will be found at least equal to its resources.
To say that deficiencies may be provided for by requisitions upon the States, is on the one hand to acknowledge that this system cannot be depended upon, and on the other hand to depend upon it for every thing beyond a certain limit. Those who have carefully attended to its vices and deformities as they have been exhibited to experience, or delineated in the course of these papers, must feel invincible repugnancy to trusting the national interests in any degree to its operation. Its inevitable tendency, whenever it is brought into activity, must be to enfeeble the Union, and sow the seeds of discord and contention between the federal head and its members, and between the members themselves. Can it be expected that the deficiencies would be better supplied in this mode than the total wants of the Union have heretofore been supplied in the same mode?
It ought to be recollected that if less will be required from the States, they will have proportionally less means to answer the demand.
If the opinions of those who contend for the distinction which has been mentioned were to be received as evidence of truth, one would be led to conclude that there was some known point in the economy of national affairs at which it would be safe to stop and to say: Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied, and always necessitous, can fulfil the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful?
How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?
Let us attend to what would be the effects of this situation in the very first war in which we should happen to be engaged. We will presume, for argument’s sake, that the revenue arising from the impost duties answers the purposes of a provision for the public debt and of a peace establishment for the Union. Thus circumstanced, a war breaks out. What would be the probable conduct of the government in such an emergency? Taught by experience that proper dependence could not be placed on the success of requisitions, unable by its own authority to lay hold of fresh resources, and urged by considerations of national danger, would it not be driven to the expedient of diverting the funds already appropriated from their proper objects to the defence of the State? It is not easy to see how a step of this kind could be avoided; and if it should be taken, it is evident that it would prove the destruction of public credit at the very moment that it was becoming essential to the public safety. To imagine that at such a crisis credit might be dispensed with, would be the extreme of infatuation. In the modern system of war, nations the most wealthy are obliged to have recourse to large loans. A country so little opulent as ours must feel this necessity in a much stronger degree. But who would lend to a government that prefaced its overtures for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying? The loans it might be able to procure would be as limited in their extent as burdensome in their conditions. They would be made upon the same principles that usurers commonly lend to bankrupt and fraudulent debtors- with a sparing hand and at enormous premiums.
It may perhaps be imagined that, from the scantiness of the resources of the country, the necessity of diverting the established funds in the case supposed would exist, though the national government should possess an unrestrained power of taxation. But two considerations will serve to quiet all apprehension on this head: one is that we are sure the resources of the community, in their full extent, will be brought into activity for the benefit of the Union; the other is that whatever deficiencies there may be can without difficulty be supplied by loans.
The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. Foreigners, as well as the citizens of America, could then reasonably repose confidence in its engagements; but to depend upon a government that must itself depend upon thirteen other governments for the means of fulfilling its contracts, when once its situation is clearly understood, would require a degree of credulity not often to be met with in the pecuniary transactions of mankind, and little reconcilable with the usual sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who hope to see realized in America the halcyon scenes of the poetic or fabulous age; but to those who believe we are likely to experience a common portion of the vicissitudes and calamities which have fallen to the lot of other nations, they must appear entitled to serious attention. Such men must behold the actual situation of their country with painful solicitude, and deprecate the evils which ambition or revenge might, with too much facility, inflict upon it.
– PUBLIUS
The objects of geometrical inquiry are so entirely abstracted from those pursuits which stir up and put in motion the unruly passions of the human heart, that mankind, without difficulty, adopt not only the more simple theorems of the science, but even those abstruse paradoxes which, however they may appear susceptible of demonstration, are at variance with the natural conceptions which the mind, without the aid of philosophy, would be led to entertain upon the subject. The INFINITE DIVISIBILITY of matter, or in other words, the INFINITE divisibility of a FINITE thing, extending even to the minutest atom, is a point agreed among geometricians, though not less incomprehensible to common-sense than any of those mysteries in religion, against which the batteries of infidelity have been so industriously levelled.
But in the sciences of morals and politics, men are found far less tractable. To a certain degree, it is right and useful that this should be the case. Caution and investigation are a necessary armor against error and imposition. But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. Though it cannot be pretended that the principles of moral and political knowledge have, in general, the same degree of certainty with those of the mathematics, yet they have much better claims in this respect than, to judge from the conduct of men in particular situations, we should be disposed to allow them. The obscurity is much oftener in the passions and prejudices of the reasoner than in the subject. Men, upon too many occasions, do not give their own understandings fair play; but, yielding to some untoward bias, they entangle themselves in words and confound
themselves in subtleties.
How else could it happen (if we admit the objectors to be sincere in their opposition) that positions so clear as those which manifest the necessity of a general power of taxation in the government of the Union should have to encounter any adversaries among men of discernment? Though these positions have been elsewhere fully stated, they will perhaps not be improperly recapitulated in this place, as introductory to an examination of what may have been offered by way of objection to them. They are in substance as follows: A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.
As the duties of superintending the national defence and of securing the public peace against foreign or domestic violence involve a provision for casualties and dangers to which no possible limits can be assigned, the power of making that provision ought to know no other bounds than the exigencies of the nation and the resources of the community.
As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of procuring revenue is unavailing when exercised over the States in their collective capacities, the federal government must of necessity be invested with an unqualified power of taxation in the ordinary modes.
Did not experience evince the contrary, it would be natural to conclude that the propriety of a general power of taxation in the national government might safely be permitted to rest on the evidence of these propositions, unassisted by any additional arguments or illustrations. But we find, in fact, that the antagonists of the proposed Constitution, so far from acquiescing in their justness or truth, seem to make their principal and most zealous effort against this part of the plan. It may therefore be satisfactory to analyze the arguments with which they combat it.
Those of them which have been most labored with that view seem in substance to amount to this: “It is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of laying taxes ought to be unconfined. Revenue is an requisite to the purposes of the local administrations as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. It is, therefore, as necessary that the State governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the wants of the Union. But an indefinite power of taxation in the latter might, and probably would in time, deprive the former of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land, as it is to have power to pass all laws that may be NECESSARY for carrying into execution the authorities with which it is proposed to vest it, the national government might at any time abolish the taxes imposed for State objects upon the pretence of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenues. And thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the State governments.”
This mode of reasoning appears sometimes to turn upon the supposition of usurpation in the national government; at other times it seems to be designed only as a deduction from the constitutional operation of its intended powers. It is only in the latter light that it can be admitted to have any pretensions to fairness. The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured.
Whatever may be the limits or modifications of the powers of the Union, it is easy to imagine an endless train of possible dangers; and by indulging an excess of jealousy and timidity, we may bring ourselves to a state of absolute skepticism and irresolution. I repeat what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers. The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpation from that quarter?
Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people. If the proposed construction of the federal government be found, upon an impartial examination of it, to be such as to afford, to a proper extent, the same species of security, all apprehensions on the score of usurpation ought to be discarded.
It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments. What side would be likely to prevail in such a conflict, must depend on the means which the contending parties could employ towards insuring success. As in republics strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them, the natural conclusion is that such contests will be most apt to end to the disadvantage of the Union; and that there is greater probability of encroachments by the members upon the federal head than by the federal head upon the members. But it is evident that all conjectures of this kind must be extremely vague and fallible: that it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution.
Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments. Upon this ground, which is evidently the true one, it will not be difficult to obviate the objections which have been made to an indefinite power of taxation in the United States.
– PUBLIUS
I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.
These three cases of exclusive jurisdiction in the federal government may be exemplified by the following instances: The last clause but one in the eighth section of the first article provides expressly that Congress shall exercise “exclusive legislation” over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers Congress “to lay and collect taxes, duties, imposts and excises”; and the second clause of the tenth section of the same article declares that “no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws.” Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned; but this power is abridged by another clause, which declares that no tax or duty shall be laid on articles exported from any State; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third will be found in that clause which declares that Congress shall have power “to establish an UNIFORM RULE of naturalization throughout the United States.” This must necessarily be exclusive, because if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but which is in fact widely different, affects the question immediately under consideration. I mean the power of imposing taxes on all articles other than exports and imports. This, I contend, is manifestly a concurrent and coequal authority in the United States and in the individual States. There is plainly no expression in the granting clause which makes that power exclusive in the Union. There is no independent clause or sentence which prohibits the States from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is to be deduced from the restraint laid upon the States in relation to duties on imports and exports. This restriction implies an admission that, if it were not inserted, the States would possess the power it excludes; and it implies a further admission, that as to all other taxes, the authority of the States remains undiminished. In any other view it would be both unnecessary and dangerous; it would be unnecessary, because if the grant to the Union of the power of laying such duties implied the exclusion of the States, or even the subordination in this particular there could be no need of such a restriction; it would be dangerous, because the introduction of it leads directly to the conclusion which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean that the States, in all cases to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a NEGATIVE PREGNANT- that is, a negation of one thing, and an affirmance of another; a negation of the authority of the States to impose taxes on imports and exports, and an affirmance of their authority to impose them on all other articles. It would be mere sophistry to argue that it was meant to exclude them absolutely from the imposition of taxes of the former kind, and to leave them at liberty to lay others subject to the control of the national legislature. The restraining or prohibitory clause only says, that they shall not, without the consent of Congress, lay such duties; and if we are to understand this in the sense last mentioned, the Constitution would then be made to introduce a formal provision for the sake of a very absurd conclusion, which is, that the States, with the consent of the national legislature, might tax imports and exports, and that they might tax every other article, unless controlled by the same body. If this was the intention, why not leave it, in the first instance, to what is alleged to be the natural operation of the original clause, conferring a general power of taxation upon the Union? It is evident that this could not have been the intention, and it will not bear a construction of the kind.
As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in the sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it inexpedient that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or in expediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances. It is not, however, a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a preexisting right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary.
– PUBLIUS
They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the means to execute a LEGISLATIVE power, but LAWS? What is the power of laying and collecting taxes, but a legislative power, or a power of making laws, to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws?
This simple train of inquiry furnishes us at once with a test by which to judge of the true nature of the clause complained of. It conducts us to this palpable truth, that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect? I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.
But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction.
Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.
But it may be again asked, Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union? I answer, first that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last.
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. Suppose, by some forced constructions of its authority (which, indeed, cannot easily be imagined), the Federal legislature should attempt to vary the law of descent in any State, would it not be evident that, in making such an attempt, it had exceeded its jurisdiction, and infringed upon that of the State? Suppose, again, that upon the pretence of an interference with its revenues, it should undertake to abrogate a land-tax imposed by the authority of a State; would it not be equally evident that this was an invasion of that concurrent jurisdiction in respect to this species of tax, which its Constitution plainly supposes to exist in the State governments? If there ever should be a doubt on this head, the credit of it will be entirely due to those reasoners who, in the imprudent zeal of their animosity to the plan of the convention, have labored to envelop it in a cloud calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results form every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed.
It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United States would be supreme in its nature, and could not legally be opposed or controlled, yet a law for abrogating or preventing the collection of a tax laid by the authority of the State (unless upon imports and exports), would not be the supreme law of the land, but a usurpation of power not granted by the Constitution. As far as an improper accumulation of taxes on the same object might tend to render the collection difficult or precarious, this would be a mutual inconvenience, not arising from a superiority or defect of power on either side, but from an injudicious exercise of power by one or the other, in a manner equally disadvantageous to both. It is to be hoped and presumed, however, that mutual interest would dictate a concert in this respect which would avoid any material inconvenience. The inference from the whole is, that the individual States would, under the proposed Constitution, retain an independent and uncontrollable authority to raise revenue to any extent of which they may stand in need, by every kind of taxation, except duties on imports and exports. It will be shown in the next paper that this CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of the State authority to that of the Union.
– PUBLIUS
In the case particularly under consideration, there is no such contradiction as appears in the example cited; there is no power on either side to annul the acts of the other. And in practice there is little reason to apprehend any inconvenience; because, in a short course of time, the wants of the States will naturally reduce themselves within a very narrow compass; and in the interim, the United States will, in all probability, find it convenient to abstain wholly from those objects to which the particular States would be inclined to resort.
To form a more precise judgment of the true merits of this question, it will be well to advert to the proportion between the objects that will require a federal provision in respect to revenue, and those which will require a State provision. We shall discover that the former are altogether unlimited, and that the latter are circumscribed within very moderate bounds. In pursuing this inquiry, we must bear in mind that we are not to confine our view to the present period, but to look forward to remote futurity. Constitutions of civil government are not to be framed upon a calculation of existing exigencies, but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. Nothing, therefore, can be more fallacious than to infer the extent of any power, proper to be lodged in the national government, from an estimate of its immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, it is impossible safely to limit that capacity. It is true, perhaps, that a computation might be made with sufficient accuracy to answer the purpose of the quantity of revenue requisite to discharge the subsisting engagements of the Union, and to maintain those establishments which, for some time to come, would suffice in time of peace. But would it be wise, or would it not rather be the extreme of folly to stop at this point, and to leave the government intrusted with the care of the national defence in a state of absolute incapacity to provide for the protection of the community against future invasions of the public peace, by foreign war or domestic convulsions? If, on the contrary, we ought to exceed this point, where can we stop, short of an indefinite power of providing for emergencies as they may arise? Though it is easy to assert, in general terms, the possibility of forming a rational judgment of a due provision against probable dangers, yet we may safely challenge those who make the assertion to bring forward their data, and may affirm that they would be found as vague and uncertain as any that could be produced to establish the probable duration of the world. Observations confined to the mere prospects of internal attacks can deserve no weight; though even these will admit of no satisfactory calculation: but if we mean to be a commercial people, it must form a part of our policy to be able one day to defend that commerce. The support of a navy and of naval wars would involve contingencies that must baffle all the efforts of political arithmetic.
Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations. A cloud has been for some time hanging over the European world. If it should break forth into a storm, who can insure us that in its progress a part of its fury would not be spent upon us? No reasonable man would hastily pronounce that we are entirely out of its reach. Or if the combustible materials that now seem to be collecting should be dissipated without coming to maturity, or if a flame should be kindled without extending to us, what security can we have that our tranquillity will long remain undisturbed from some other course or from some other quarter? Let us recollect that peace or war will not always be left to our option; that however moderate or unambitious we may be, we cannot count upon the moderation, or hope to extinguish the ambition of others. Who could have imagined at the conclusion of the last war that France and Britain, wearied and exhausted as they both were, would so soon have looked with so hostile an aspect upon each other? To judge from the history of mankind, we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiments of peace; and that to model our political systems upon speculations of lasting tranquillity, is to calculate on the weaker springs of the human character.
What are the chief sources of expense in every government? What has occasioned that enormous accumulation of debts with which several of the European nations are oppressed? The answer plainly is, wars and rebellions, the support of those institutions which are necessary to guard the body politic against these two most mortal diseases of society. The expenses arising from those institutions which are relative to the mere domestic police of a state, to the support of its legislative, executive, and judicial departments, with their different appendages, and to the encouragement of agriculture and manufactures (which will comprehend almost all the objects of state expenditure), are insignificant in comparison with those which relate to the national defence.
In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be provided for, not above a fifteenth part of the annual income of the nation is appropriated to the class of expenses last mentioned; the other fourteen fifteenths are absorbed in the payment of the interest of debts contracted for carrying on the wars in which that country has been engaged, and in the maintenance of fleets and armies. If, on the one hand, it should be observed that the expenses incurred in the prosecution of the ambitious enterprises and vainglorious pursuits of a monarchy are not a proper standard by which to judge of those which might be necessary in a republic, it ought, on the other hand, to be remarked that there should be as great a disproportion between the profusion and extravagance of a wealthy kingdom in its domestic administration, and the frugality and economy which in that particular become the modest simplicity of republican government. If we balance a proper deduction from one side against that which it is supposed ought to be made from the other, the proportion may still be considered as holding good.
But let us advert to the large debt which we have ourselves contracted in a single war, and let us only calculate on a common share of the events which disturb the peace of nations, and we shall instantly perceive, without the aid of any elaborate illustration, that there must always be an immense disproportion between the objects of federal and state expenditures. It is true that several of the States, separately, are encumbered with considerable debts, which are an excrescence of the late war. But this cannot happen again, if the proposed system be adopted; and when these debts are discharged, the only call for revenue of any consequence, which the State governments will continue to experience, will be for the mere support of their respective civil lists, to which, if we add all contingencies, the total amount in every State ought to fall considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we ought, in those provisions which are designed to be permanent, to calculate, not on temporary, but on permanent causes of expense. If this principle be a just one, our attention would be directed to a provision in favor of the State governments for an annual sum of about two hundred thousand pounds; while the exigencies of the Union could be susceptible of no limits, even in imagination. In this view of the subject, by what logic can it be maintained that the local governments ought to command, in perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of two hundred thousand pounds? To extend its power further, in exclusion of the authority of the Union, would be to take the resources of the community out of those hands which stood in need of them for the public welfare, in order to put them into other hands which could have no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon the principle of a repartition of the objects of revenue, between the Union and its members, in proportion to their comparative necessities; what particular fund could have been selected for the use of the States, that would not either have been too much or too littletoo little for their present, too much for their future wants? As to the line of separation between external and internal taxes, this would leave to the States, at a rough computation, the command of two thirds of the resources of the community to defray from a tenth to a twentieth part of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. If we desert this boundary and content ourselves with leaving to the States an exclusive power of taxing houses and lands, there would still be a great disproportion between the means and the end; the possession of one third of the resources of the community to supply, at most, one tenth of its wants. If any fund could have been selected and appropriated, equal to and not greater than the object, it would have been inadequate to the discharge of the existing debts of the particular States, and would have left them dependent on the Union for a provision for this purpose.
The preceding train of observation will justify the position which has been elsewhere laid down, that “A CONCURRENT JURISDICTION in the article of taxation was the only admissible substitute for an entire subordination, in respect to this branch of power, of State authority to that of the Union.” Any separation of the objects of revenue that could have been fallen upon, would have amounted to a sacrifice of the great INTERESTS of the Union to the POWER of the individual States. The convention thought the concurrent jurisdiction preferable to that subordination; and it is evident that it has at least the merit of reconciling an indefinite constitutional power of taxation in the Federal government with an adequate and independent power in the States to provide for their own necessities. There remain a few other lights, in which this important subject of taxation will claim a further consideration.
– PUBLIUS
But all extremes are pernicious in various ways. Exorbitant duties on imported articles would beget a general spirit of smuggling; which is always prejudicial to the fair trader, and eventually to the revenue itself: they tend to render other classes of the community tributary, in an improper degree, to the manufacturing classes, to whom they give a premature monopoly of the markets; they sometimes force industry out of its more natural channels into others in which it flows with less advantage; and in the last place, they oppress the merchant, who is often obliged to pay them himself without any retribution from the consumer. When the demand is equal to the quantity of goods at market, the consumer generally pays the duty; but when the markets happen to be overstocked, a great proportion falls upon the merchant, and sometimes not only exhausts his profits, but breaks in upon his capital. I am apt to think that a division of the duty, between the seller and the buyer, more often happens than is commonly imagined. It is not always possible to raise the price of a commodity in exact proportion to every additional imposition laid upon it. The merchant, especially in a country of small commercial capital, is often under a necessity of keeping prices down in order to make a more expeditious sale.
The maxim that the consumer is the payer, is so much oftener true than the reverse of the proposition, that it is far more equitable that the duties on imports should go into a common stock, than that they should redound to the exclusive benefit of the importing States. But it is not so generally true as to render it equitable, that those duties should form the only national fund. When they are paid by the merchant they operate as an additional tax upon the importing State, whose citizens pay their proportion of them in the character of consumers. In this view they are productive of inequality among the States; which inequality would be increased with the increased extent of the duties. The confinement of the national revenues to this species of imposts would be attended with inequality, from a different cause, between the manufacturing and the non-manufacturing States. The States which can go farthest towards the supply of their own wants, by their own manufactures, will not, according to their numbers or wealth, consume so great a proportion of imported articles as those States which are not in the same favorable situation. They would not, therefore, in this mode alone contribute to the public treasury in a ratio to their abilities. To make them do this it is necessary that recourse be had to excises, the proper objects of which are particular kinds of manufactures, New York is more deeply interested in these considerations than such of her citizens as contend for limiting the power of the Union to external taxation may be aware of. New York is an importing State, and is not likely speedily to be, to any great extent, a manufacturing State. She would, of course, suffer in a double light from restraining the jurisdiction of the Union to commercial imposts.
So far as these observations tend to inculcate a danger of the import duties being extended to an injurious extreme it may be observed, conformably to a remark made in another part of these papers, that the interest of the revenue itself would be a sufficient guard against such an extreme. I readily admit that this would be the case, as long as other resources were open; but if the avenues to them were closed, HOPE, stimulated by necessity, would beget experiments, fortified by rigorous precautions and additional penalties, which, for a time, would have the intended effect, till there had been leisure to contrive expedients to elude these new precautions. The first success would be apt to inspire false opinions, which it might require a long course of subsequent experience to correct. Necessity, especially in politics, often occasions false hopes, false reasoning, and a system of measures correspondingly erroneous. But even if this supposed excess should not be a consequence of the limitation of the federal power of taxation, the inequalities spoken of would still ensue, though not in the same degree, from the other causes that have been noticed. Let us now return to the examination of objections.
One which, if we may judge from the frequency of its repetition, seems most to be relied on, is, that the House of Representatives is not sufficiently numerous for the reception of all the different classes of citizens, in order to combine the interests and feelings of every part of the community, and to produce a due sympathy between the representative body and its constituents. This argument presents itself under a very specious and seducing form, and is well calculated to lay hold of the prejudices of those to whom it is addressed. But when we come to dissect it with attention, it will appear to be made up of nothing but fair-sounding words. The object it seems to aim at is, in the first place, impracticable, and in the sense in which it is contended for, is unnecessary. I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers, and shall content myself with examining here the particular use which has been made of a contrary supposition, in reference to the immediate subject of our inquiries.
The idea of an actual representation of all classes of the people, by persons of each class, is altogether visionary. Unless it were expressly provided in the Constitution, that each different occupation should send one or more members, the thing would never take place in practice. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants, in preference to persons of their own professions or trades. Those discerning citizens are well aware that the mechanic and manufacturing arts furnish the materials of mercantile enterprise and industry. Many of them, indeed, are immediately connected with the operations of commerce. They know that the merchant is their natural patron and friend; and they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by the merchant than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments, without which, in a deliberative assembly, the greatest natural abilities are for the most part useless; and that the influence and weight, and superior acquirements of the merchants render them more equal to a contest with any spirit which might happen to infuse itself into the public councils, unfriendly to the manufacturing and trading interests. These considerations, and many others that might be mentioned, prove, and experience confirms its, that artisans and manufacturers will commonly be disposed to bestow their votes upon merchants and those whom they recommend. We must therefore consider merchants as the natural representatives of all these classes of the community.
With regard to the learned professions, little need be observed; they truly form no distinct interest in society, and, according to their situation and talents, will be indiscriminately the objects of the confidence and choice of each other, and of other parts of the community.
Nothing remains but the landed interest; and this, in a political view, and particularly in relation to taxes, I take to be perfectly united, from the wealthiest landlord down to the poorest tenant. No tax can be laid on land which will not affect the proprietor of millions of acres as well as the proprietor of a single acre. Every landholder will therefore have a common interest to keep the taxes on land as low as possible; and common interest may always be reckoned upon as the surest bond of sympathy. But if we even could suppose a distinction of interest between the opulent landholder and the middling farmer, what reason is there to conclude, that the first would stand a better chance of being deputed to the national legislature than the last? If we take fact as our guide, and look into our own senate and assembly, we shall find that moderate proprietors of land prevail in both; nor is this less the case in the senate, which consists of a smaller number, than in the assembly, which is composed of a greater number. Where the qualifications of the electors are the same, whether they have to choose a small or a large number, their votes will fall upon those in whom they have most confidence; whether these happen to be men of large fortunes, or of moderate property, or of no property at all.
It is said to be necessary, that all classes of citizens should have some of their own number in the representative body, in order that their feelings and interests may be the better understood and attended to. But we have seen that this will never happen under any arrangement that leaves the votes of the people free. Where this is the case, the representative body, with too few exceptions to have any influence on the spirit of the government, will be composed of landholders, merchants, and men of the learned professions. But where is the danger that the interests and feelings of the different classes of citizens will not be understood or attended to by these three descriptions of men? Will not the landholder know and feel whatever will promote or insure the interest of landed property? And will he not, from his own interest in that species of property, be sufficiently prone to resist every attempt to prejudice or encumber it? Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts, to which his commerce is so nearly allied? Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?
If we take into the account the momentary humors or dispositions which may happen to prevail in particular parts of the society, and to which a wise administration will never be inattentive, is the man whose situation leads to extensive inquiry and information less likely to be a competent judge of their nature, extent, and foundation than one of whose observation does not travel beyond the circle of his neighbors and acquaintances? Is it not natural that a man who is a candidate for the favor of the people, and who is dependent on the suffrages of his fellow-citizens for the continuance of his public honors, should take care to inform himself of their dispositions and inclinations, and should be willing to allow them their proper degree of influence upon his conduct? This dependence, and the necessity of being bound himself, and his posterity, by the laws to which he gives his assent, are the true, and they are the strong chords of sympathy between the representative and the constituent.
There is no part of the administration of government that requires extensive information and a thorough knowledge of the principles of political economy so much as the business of taxation. The man who understands those principles best will be least likely to resort to oppressive expedients, or to sacrifice any particular class of citizens to the procurement of revenue. It might be demonstrated that the most productive system of finance will always be the least burdensome. There can be no doubt that in order to a judicious exercise of the power of taxation, it is necessary that the person in whose hands it is should be acquainted with the general genius, habits, and modes of thinking of the people at large, and with the resources of the country. And this is all that can be reasonably meant by a knowledge of the interests and feelings of the people. In any other sense the proposition has either no meaning, or an absurd one.
And in that sense let every considerate citizen judge for himself where the requisite qualification is most likely to be found.
– PUBLIUS
There is another objection of a somewhat more precise nature that claims our attention. It has been asserted that a power of internal taxation in the national legislature could never be exercised with advantages, as well form the want of a sufficient knowledge of local circumstances, as from an interference between the revenue laws of the Union and of the particular States. The supposition of a want of proper knowledge seems to be entirely destitute of foundation. If any question is depending in a State legislature respecting one of the counties, which demands a knowledge of local details, how is it acquired? No doubt from the information of the members of the county. Cannot the like knowledge be obtained in the national legislature from the representatives of each State? And is it not to be presumed that the men who will generally be sent there will be possessed of the necessary degree of intelligence to be able to communicate that information? Is the knowledge of local circumstances, as applied to taxation, a minute topographical acquaintance with all the mountains, rivers, streams, highways, and by-paths in each State; or is it a general acquaintance with its situation and resources, with the state of its agriculture, commerce, manufactures, with the nature of its products and consumptions, with the different degrees and kinds of its wealth, property, and industry?
Nations in general, even under governments of the more popular kind, usually commit the administration of their finances to single men or to boards composed of a few individuals, who digest and prepare, in the first instance, the plans of taxation, which are afterwards passed into laws by the authority of the sovereign or legislature.
Inquisitive and enlightened statesmen are deemed everywhere best qualified to make a judicious selection of the objects proper for revenue; which is a clear indication, as far as the sense of mankind can have weight in the question, of the species of knowledge of local circumstances requisite to the purposes of taxation.
The taxes intended to be comprised under the general denomination of internal taxes may be subdivided into those of the direct and those of the indirect kind. Though the objection be made to both, yet the reasoning upon it seems to be confined to the former branch. And indeed, as to the latter, by which must be understood duties and excises on articles of consumption, one is at a loss to conceive what can be the nature of the difficulties apprehended. The knowledge relating to them must evidently be of a kind that will either be suggested by the nature of the article itself, or can easily be procured from any well-informed man, especially of the mercantile class. The circumstances that may distinguish its situation in one State from its situation in another must be few, simple, and easy to be comprehended. The principal thing to be attended to, would be to avoid those articles which had been previously appropriated to the use of a particular State; and there could be no difficulty in ascertaining the revenue system of each. This could always be known from the respective codes of laws, as well as from the information of the members from the several States.
The objection, when applied to real property or to houses and lands, appears to have, at first sight, more foundation, but even in this view it will not bear a close examination. Land-taxes are commonly laid in one of two modes, either by actual valuations, permanent or periodical, or by occasional assessments, at the discretion, or according to the best judgment, of certain officers whose duty it is to make them. In either case, the EXECUTION of the business, which alone requires the knowledge of local details, must be devolved upon discreet persons in the character of commissioners or assessors, elected by the people or appointed by the government for the purpose. All that the law can do must be to name the persons or to prescribe the manner of their election or appointment, to fix their numbers and qualifications and to draw the general outlines of their powers and duties. And what is there in all this that cannot as well be performed by the national legislature as by a State legislature?
The attention of either can only reach to general principles; local details, as already observed, must be referred to those who are to execute the plan.
But there is a simple point of view in which this matter may be placed that must be altogether satisfactory. The national legislature can make use of the system of each State within that State. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government.
Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that “all duties, imposts, and excises shall be UNIFORM throughout the United States.
It has been very properly observed by different speakers and writers on the side of the Constitution, that if the exercise of the power of internal taxation by the Union should be discovered on experiment to be really inconvenient, the federal government may then forbear the use of it, and have recourse to requisitions in its stead. By way of answer to this, it has been triumphantly asked, Why not in the first instance omit that ambiguous power, and rely upon the latter source?
Two solid answers may be given. The first is, that the exercise of that power, if convenient, will be preferable, because it will be more effectual; and it is impossible to prove in theory, or otherwise than by the experiment, that it cannot be advantageously exercised.
The contrary, indeed, appears most probable. The second answer is, that the existence of such a power in the Constitution will have a strong influence in giving efficacy to requisitions. When the States know that the Union can apply itself without their agency, it will be a powerful motive for exertion on their part.
As to the interference of the revenue laws of the Union, and of its members, we have already seen that there can be no clashing or repugnancy of authority. The laws cannot, therefore, in a legal sense, interfere with each other; and it is far from impossible to avoid an interference even in the policy of their different systems. An effectual expedient for this purpose will be, mutually to abstain from those objects which either side may have first had recourse to. As neither can control the other, each will have an obvious and sensible interest in this reciprocal forbearance. And where there is an immediate common interest, we may safely count upon its operation. When the particular debts of the States are done away, and their expenses come to be limited within their natural compass, the possibility almost of interference will vanish. A small land-tax will answer the purpose of the States, and will be their most simple and most fit resource.
Many spectres have been raised out of this power of internal taxation, to excite the apprehensions of the people: double sets of revenue officers, a duplication of their burdens by double taxations, and the frightful forms of odious and oppressive poll taxes, have been played off with all the ingenious dexterity of political legerdemain.
As to the first point, there are two cases in which there can be no room for double sets of officers: one, where the right of imposing the tax is exclusively vested in the Union, which applies to the duties on imports; the other, where the object has not fallen under any State regulation or provision, which may be applicable to a variety of objects. In other cases, the probability is that the United States will either wholly abstain from the objects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection, and will best avoid any occasion of disgust to the State governments and to the people. At all events, here is a practicable expedient for avoiding such an inconvenience; and nothing more can be required than to show that evils predicted do no necessarily result from the plan.
As to any argument derived from a supposed system of influence, it is a sufficient answer to say that it ought not to be presumed; but the supposition is susceptible of a more precise answer. If such a spirit should infest the councils of the Union, the most certain road to the accomplishment of its aim would be to employ the State officers as much as possible, and to attach them to the Union by an accumulation of their emoluments. This would serve to turn the tide of State influence into the channels of the national government, instead of making federal influence flow in an opposite and adverse current. But all suppositions of this kind or invidious, and ought to be banished from the consideration of the great question before the people. They can answer no other end than to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain. The wants of the Union are to be supplied in one way or another; if to be done by the authority of the federal government, it will not be to be done by that of the State government. The quantity of taxes to be paid by the community must be the same in either case; with this advantage, if the provision is to be made by the Union- that the capital resource of commercial imposts, which is the most convenient branch of revenue, can be prudently improved to a much greater extent under federal than under State regulation, and of course will render it less necessary to recur to more inconvenient methods; and with this further advantage, that as far as there may be any real difficulty in the exercise of the power of internal taxation, it will impose a disposition to greater care in the choice and arrangement of the means; and must naturally tend to make it a fixed point of policy in the national administration to go as far as may be practicable in making the luxury of the rich tributary to the public treasury, in order to diminish the necessity of those impositions which might create dissatisfaction in the poorer and most numerous classes of the society. Happy it is when the interest which the government has in the preservation of its own power, coincides with a proper distribution of the public burdens, and tends to guard the least wealthy part of the community from oppression!
As to poll taxes, I, without scruple, confess my disapprobation of them; and though they have prevailed from an early period in those States *029 which have uniformly been the most tenacious of their rights, I should lament to see them introduced into practice under the national government. But does it follow because there is a power to lay them, that they will actually be laid? Every State in the Union has power to impose taxes of this kind; and yet in several of them they are unknown in practice. Are the State governments to be stigmatized as tyrannies, because they possess this power? If they are not, with what propriety can the like power justify such a charge against the national government, or even be urged as an obstacle to its adoption? As little friendly as I am to the species of imposition, I still feel a thorough conviction that the power of having recourse to it ought to exist in the federal government. There are certain emergencies of nations, in which expedients, that in the ordinary state of things ought to be forborne, become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them. The real scarcity of objects in this country, which may be considered as productive sources of revenue, is a reason peculiar to itself, for not abridging the discretion of the national councils in this respect.
There may exist certain critical and tempestuous conjunctures of the State, in which a poll tax may become an inestimable resource. And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defence and security. I have now gone through the examination of such of the powers proposed to be vested in the United States, which may be considered as having an immediate relation to the energy of the government; and have endeavored to answer the principal objections which have been made to them. I have passed over in silence those minor authorities, which are either too inconsiderable to have been thought worthy of the hostilities of the opponents of the Constitution, or of too manifest propriety to admit of controversy.
The mass of judiciary power, however, might have claimed an investigation under this head, had it not been for the consideration that its organization and its extent may be more advantageously considered in connection. This has determined me to refer it to the branch of our inquiries upon which we shall next enter.
– PUBLIUS
It is a misfortune, inseparable from human affairs, that public measures are rarely investigated with that spirit of moderation which is essential to a just estimate of their real tendency to advance or obstruct the public good; and that this spirit is more apt to be diminished than promoted, by those occasions which require an unusual exercise of it. To those who have been led by experience to attend to this consideration, it could not appear surprising, that the act of the convention, which recommends so many important changes and innovations, which may be viewed in so many lights and relations, and which touches the springs of so many passions and interests, should find or excite dispositions unfriendly, both on one side and on the other, to a fair discussion and accurate judgment of its merits. In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn; as the language held by others betrays an opposite predetermination or bias, which must render their opinions also of little moment in the question. In placing, however, these different characters on a level, with respect to the weight of their opinions, I wish not to insinuate that there may not be a material difference in the purity of their intentions. It is but just to remark in favor of the latter descriptions, that as our situation is universally admitted to be peculiarly critical, and to require indispensably that something should be done for our relief, the predetermined patron of what has been actually done may have taken his bias from the weight of these considerations, as well as from considerations of a sinister nature.
The predetermined adversary, on the other hand, can have been governed by no venial motive whatever. The intentions of the first may be upright, as they may on the contrary be culpable. The views of the last cannot be upright, and must be culpable. But the truth is, that these papers are not addressed to persons falling under either of these characters. They solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.
With equal readiness will it be perceived, that besides these inducements to candor, many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention.
The novelty of the undertaking immediately strikes us. It has been shown, in the course of these papers, that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it. It has been shown, that the other confederacies which could be consulted as precedents have been vitiated by the same erroneous principles, and can therefore furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued. The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experience may unfold them.
Among the difficulties encountered by the convention, a very important one must have lain in combining the requisite stability and energy in government, with the inviolable attention due to liberty and to the republican form. Without substantially accomplishing this part of their undertaking, they would have very imperfectly fulfilled the object of their appointment, or the expectation of the public; yet that it could not be easily accomplished, will be denied by no one who is unwilling to betray his ignorance of the subject.
Energy in government is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government.
Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation is not more an evil in itself than it is odious to the people; and it may be pronounced with assurance that the people of this country, enlightened as they are with regard to the nature, and interested, as the great body of them are, in the effects of good government, will never be satisfied till some remedy be applied to the vicissitudes and uncertainties which characterise State administrations. On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them together in their due proportions. The genius of republican liberty seems to demand on one side, not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that even during this short period the trust should be placed not in a few, but a number of hands. Stability, on the contrary, requires that the hands in which power is lodged should continue for a length of time the same. A frequent change of men will result from a frequent return of elections; and a frequent change of measures from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.
How far the convention may have succeeded in this part of their work, will better appear on a more accurate view of it. From the cursory view here taken, it must clearly appear to have been an arduous part.
Not less arduous must have been the task of marking the proper line of partition between the authority of the general and that of the State governments. Every man will be sensible of this difficulty, in proportion as he has been accustomed to contemplate and discriminate objects extensive and complicated in their nature. The faculties of the mind itself have never yet been distinguished and defined, with satisfactory precision, by all the efforts of the most acute and metaphysical philosophers. Sense, perception, judgment, desire, volition, memory, imagination, are found to be separated by such delicate shades and minute gradations that their boundaries have eluded the most subtle investigations, and remain a pregnant source of ingenious disquisition and controversy. The boundaries between the great kingdom of nature, and, still more, between the various provinces, and lesser portions, into which they are subdivided, afford another illustration of the same important truth. The most sagacious and laborious naturalists have never yet succeeded in tracing with certainty the line which separates the district of vegetable life from the neighboring region of unorganized matter, or which marks the termination of the former and the commencement of the animal empire. A still greater obscurity lies in the distinctive characters by which the objects in each of these great departments of nature have been arranged and assorted.
When we pass from the works of nature, in which all the delineations are perfectly accurate, and appear to be otherwise only from the imperfection of the eye which surveys them, to the institutions of man, in which the obscurity arises as well from the object itself as from the organ by which it is contemplated, we must perceive the necessity of moderating still further our expectations and hopes form the efforts of human sagacity. Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces- the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reigns in these subjects, and which puzzle the greatest adepts in political science.
The experience of ages, with the continued and combined labors of the most enlightened legislators and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice. The precise extent of the common law, and the statute law, the maritime law, the ecclesiastical law, the law of corporations, and other local laws and customs, remains still to be clearly and finally established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world. The jurisdiction of her several courts, general and local, of law, of equity, of admiralty, etc., is not less a source of frequent and intricate discussions, sufficiently denoting the indeterminate limits by which they are respectively circumscribed. All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, according to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas. Any one of these must produce a certain degree of obscurity. The convention, in delineating the boundary between the federal and State jurisdictions, must have experienced the full effect of them all.
To the difficulties already mentioned may be added the interfering pretensions of the larger and smaller States. We cannot err in supposing that the former would contend for a participation in the government, fully proportioned to their superior wealth and importance; and that the latter would not be less tenacious of the quality at present enjoyed by them. We may well suppose that neither side would entirely yield to the other, and consequently that the struggle could be terminated only by compromise. It is extremely probable, also, that after the ratio of representation had been adjusted, this very compromise must have produced a fresh struggle between the same parties, to give such a turn to the organization of the government, and to the distribution of its powers, as would increase the importance of the branches, in forming which they had respectively obtained the greatest share of influence. There are features in the Constitution which warrant each of these suppositions; and as far as either of them is well founded, it shows that the convention must have been compelled to sacrifice theoretical propriety to the force of extraneous considerations.
Nor could it have been the large and small States only, which would marshal themselves in opposition to each other on various points. Other combinations, resulting from a difference of local position and policy, must have created additional difficulties. As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale. And although this variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, yet every one must be sensible of the contrary influence, which must have been experienced in the task of forming it.
Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
We had occasion, in a former paper, to take notice of the repeated trials which have been unsuccessfully made in the United Netherlands for reforming the baneful and notorious vices of their constitution.
The history of almost all the great councils and consultations held among mankind for reconciling their discordant opinions, assuaging their mutual jealousies, and adjusting their respective interests, is a history of factions, contentions, and disappointments, and may be classed among the most dark and degraded pictures which display the infirmities and depravities of the human character. If, in a few scattered instances, a brighter aspect is presented, they serve only as exceptions to admonish us of the general truth; and by their lustre to darken the gloom of the adverse prospect to which they are contrasted. In revolving the causes from which these exceptions result, and applying them to the particular instances before us, we are necessarily led to two important conclusions. The first is, that the convention must have enjoyed, in a very singular degree, an exemption from the pestilential influence of party animosities- the disease most incident to deliberative bodies, and most apt to contaminate their proceedings. The second conclusion is that all the deputations composing the convention were satisfactorily accommodated by the final act, or were induced to accede to it by a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by delays or by new experiments.
– PUBLIUS
Lycurgus was the lawgiver of Sparta. The foundation of the original government of rome was laid by Romulus, and the work completed by two of his elective successors, Numa and Tullius Hostilius. On the abolition of royalty the consular administration was substituted by Brutus, who stepped forward with a project for such a reform, which, he alleged, had been prepared by Tullius Hostilius, and to which his address obtained the assent and ratification of the senate and people.
This remark is applicable to confederate governments also. Amphictyon, we are told, was the author of that which bore his name. The Achaean league received its first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in their respective establishments, or how far they might be clothed with the legitimate authority of the people, cannot in every instance be ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with indefinite powers to reform its government and laws. And Solon, according to Plutarch, was in a manner compelled, by the universal suffrage of his fellow-citizens, to take upon him the sole and absolute power of new-modelling the constition. The proceedings under Lycurgus were less regular; but as far as the advocates for a regular reform could prevail, they all turned their eyes towards the single efforts of that celebrated patriot and sage, instead of seeking to bring about a revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded that a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen?
Whence could it have proceeded, that the Athenians, a people who would not suffer an army to be commanded by fewer than ten generals, and who required no other proof of danger to their liberties than the illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected? These questions cannot be fully answered, without supposing that the fears of discord and disunion among a number of counsellors exceed the apprehension of treachery or incapacity in a single individual. History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well at the expedients which they were obliged to employ in order to carry their reforms into effect. Solon, who seems to have indulged a more temporizing policy, confessed that he had not given to his countrymen the government best suited to their happiness, but most tolerable to their prejudices. And Lycurgus, more true to his object, was under the necessity of mixing a portion of violence with the authority of superstition, and of securing his final success by a voluntary renunciation, first of his country, and then of his life. If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.
Is it an unreasonable conjecture, that the errors which may be contained in the plan of the convention are such as have resulted rather from the defect of antecedent experience on this complicated and difficult subject, than from a want of accuracy or care in the investigation of it; and, consequently, such as will not be ascertained until an actual trial shall have pointed them out? This conjecture is rendered probable, not only by many considerations of a general nature, but by the particular case of the Articles of Confederation. It is observable that among the numerous objections and amendments suggested by the several States, when these articles were submitted for their ratification, not one is found which alludes to the great and radical error which on actual trial has discovered itself. And if we except the observations which New Jersey was led to make, rather by her local situation, than by her peculiar foresight, it may be questioned whether a single suggestion was of sufficient moment to justify a revision of the system. There is abundant reason, nevertheless, to suppose that immaterial as these objections were, they would have been adhered to with a very dangerous inflexibility, in some States, had not a zeal for their opinions and supposed interests been stifled by the more powerful sentiment of self-preservation. One State, we may remember, persisted for several years in refusing her concurrence, although the enemy remained the whole period at our gates, or rather in the very bowels of our country. Nor was her pliancy in the end effected by a less motive, than the fear of being chargeable with protracting the public calamities, and endangering the event of the contest. Every candid reader will make the proper reflections on these important facts.
A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, so far from being desperate, that it may be made to issue in an improvement of his constitution. They are equally unanimous in prescribing the remedy, by which this happy effect is to be produced. The prescription is no sooner made known, however, than a number of persons interpose, and, without denying the reality or danger of the disorder, assure the patient that the prescription will be poison to his constitution, and forbid him, under pain of certain death, to make use of it. Might not the patient reasonably demand, before he ventured to follow this advice, that the authors of it should at least agree among themselves on some other remedy to be substituted? And if he found them differing as much from one another as from his first counsellors, would he not act prudently in trying the experiment unanimously recommended by the latter, rather than be hearkening to those who could neither deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No. Are they agreed, are any two of them agreed, in their objections to the remedy proposed, or in the proper one to be substituted? Let them speak for themselves. This one tells us that the proposed Constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals.
Another admits that it ought to be a government over individuals to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed, but to the want of a bill of rights. A fourth concurs in the absolute necessity of a bill of rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a bill of rights of any sort would be superfluous and misplaced, and that the plan would be unexceptionable but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the Senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From this quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter, on another occasion, the cry is that the Congress will be but a shadow of a representation, and that the government would be far less objectionable if the number and the expense were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary in a State of great exports and imports, is not less dissatisfied that the whole burden of taxes may be thrown on consumption. This politician discovers in the Constitution a direct and irresistible tendency to monarchy; that is equally sure it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but see clearly it must be one or other of them; whilst a fourth is not wanting, who with no less confidence affirms that the Constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the Constitution the language is that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government and all the requisite precautions in favor of liberty. Whilst this objection circulates in vague and general expressions, there are but a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarce any two are exactly agreed upon the subject. In the eyes of one the junction of the Senate with the President in the responsible function of appointing to offices, instead of vesting this executive power in the Executive alone, is the vicious part of the organization.
To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With another, the admission of the President into any share of a power which must ever be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. “We concur fully,” reply others, “in the objection to this part of the plan, but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error. Our principal dislike to the organization arises from the extensive powers already lodged in that department.” Even among the zealous patrons of a council of state the most irreconcilable variance is discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of a small number to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it as a fundamental condition that the appointment should be made by the President himself.
As it can give no umbrage to the writers against the plan of the federal Constitution, let us suppose, that as they are the most zealous, so they are also the most sagacious, of those who think the late convention were unequal to the task assigned them, and that a wiser and better plan might and ought to be substituted. Let us further suppose that their country should concur, both in this favorable opinion of their merits, and in their unfavorable opinion of the convention; and should accordingly proceed to form them into a second convention, with full powers, and for the express purpose of revising and remoulding the work of the first. Were the experiment to be seriously made, though it required some effort to view it seriously even in fiction, I leave it to be decided by the sample of opinions just exhibited, whether, with all their enmity to their predecessors, they would, in any one point, depart so widely from their example, as in the discord and ferment that would mark their own deliberations; and whether the Constitution, now before the public, would not stand as fair a chance for immortality, as Lycurgus gave to that of Sparta, by making its change to depend on his own return from exile and death, if it were to be immediately adopted, and were to continue in force, not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers.
It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect: it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceiling a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation? Is an indefinite power to raise money dangerous in the hands of the federal government? The present Congress can make requisitions to any amount they please, and the States are constitutionally bound to furnish them; they can emit bills of credit as long as they will pay for the paper; they can borrow, both abroad and at home, as long as a shilling will be lent. Is an indefinite power to raise troops dangerous? The Confederation gives to Congress that power also; and they have already begun to make use of it. Is it improper and unsafe to intermix the different powers of government in the same body of men? Congress, a single body of men, are the sole depositary of all the federal powers. Is it particularly dangerous to give keys of the treasury, and the command of the army, into the same hands? The Confederation places them both in the hands of Congress. Is a bill of rights essential to liberty? The Confederation has no bill of rights. Is it an objection against the new Constitution, that it empowers the Senate, with the concurrence of the Executive, to make treaties which are to be the laws of the land? The existing Congress, without any such control, can make treaties which they themselves have declared, and most of the States have recognized, to be the supreme law of the land. Is the importation of slaves permitted by the new Constitution for twenty years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers may be in theory, it is rendered harmless by the dependence of Congress on the States for the means of carrying them into practice; that however large the mass of powers may be, it is in fact a lifeless mass. Then, say I, in the first place, that the Confederation is chargeable with the still greater folly of declaring certain powers in the federal government to be absolutely necessary, and at the same time rendering them absolutely nugatory; and, in the next place, that if the Union is to continue, and no better government be substituted, effective powers must either be granted to, or assumed by, the existing Congress; in either of which events, the contrast just stated will hold good. But this is not all. Out of this lifeless mass has already grown an excrescent power, which tends to realize all the dangers that can be apprehended from a defective construction of the supreme government of the Union. It is now no longer a point of speculation and hope, that the Western territory is a mine of vast wealth to the United States; and although it is not of such a nature as to extricate them from their present distresses, or for some time to come, to yield any regular supplies for the public expenses, yet must it hereafter be able, under proper management, both to effect a gradual discharge of the domestic debt, and to furnish, for a certain period, liberal tributes to the federal treasury. A very large proportion of this fund has been already surrendered by individual States; and it may with reason be expected that the remaining States will not persist in withholding similar proofs of their equity and generosity. We may calculate, therefore, that a rich and fertile country, of an area equal to the inhabited extent of the United States, will soon become a national stock. Congress have assumed the administration of this stock. They have begun to render it productive. Congress have undertaken to do more: they have proceeded to form new States, to erect temporary governments to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy. All this has been done; and done without the least color of constitutional authority. Yet no blame has been whispered; no alarm has been sounded. A GREAT AND INDEPENDENT fund of revenue is passing into the hands of a SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and appropriate money to their support for an INDEFINITE PERIOD OF TIME. And yet there are men, who have not only been silent spectators of this prospect, but who are advocates for the system which exhibits it; and, at the same time, urge against the new system the objections which we have heard. Would they not act with more consistency, in urging the establishment of the latter, as no less necessary to guard the Union against the future powers and resources of a body constructed like the existing Congress, than to save it from the dangers threatened by the present impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. But is not the fact an alarming proof of the danger resulting from a government which does not possess regular powers commensurate to its objects? A dissolution or usurpation is the dreadful dilemma to which it is continually exposed.
– PUBLIUS
Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitutions of different States, no satisfactory one would ever be found. Holland, in which no particle of the supreme authority is derived from the people, has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles. Poland, which is a mixture of aristocracy and of monarchy in their worst forms, has been dignified with the same appellation. The government of England, which has one republican branch only, combined with an hereditary aristocracy and monarchy, has, with equal impropriety, been frequently placed on the list of republics. These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. And according to one, this mode of appointment is extended to one of the coordinate branches of the legislature.
According to all the constitutions, also, the tenure of the highest offices is extended to a definite period, and in many instances, both within the legislative and executive departments, to a period of years. According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behavior. On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves. The duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions. The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office.
The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions.
Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.
“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the federal form, which regards the Union as a Confederacy of sovereign states; instead of which, they have framed a national government, which regards the Union as a consolidation of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision.
Without inquiring into the accuracy of the distinction on which the objection is founded, it will be necessary to a just estimate of its force, first, to ascertain the real character of the government in question; secondly, to inquire how far the convention were authorized to propose such a government; and thirdly, how far the duty they owed to their country could supply any defect of regular authority.
First.- In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.
On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State,- the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States.
Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution.
The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government, it appears to be of a mixed character, presenting at least as many federal as national features.
The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government. But if the government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.
If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. in requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character.
The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.
– PUBLIUS
The recommendatory act of Congress is in the words following: “Whereas, there is provision in the articles of Confederation and perpetual Union, for making alterations therein, by the assent of a Congress of the United States, and of the legislatures of the several States; and whereas experience hath evinced that there are defects in the present Confederation; as a mean to remedy which, several of the States, and particularly the State of New York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution; and such convention appearing to be the most probable mean of establishing in these States a firm national government: “Resolved,- That in the opinion of Congress it is expedient, that on the second Monday of May next a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.”
From these two acts, it appears, 1st, that the object of the convention was to establish, in these States, a firm national government; 2nd, that this government was to be such as would be adequate to the exigencies of government and the preservation of the Union; 3rd, that these purposes were to be effected by alterations and provisions in the articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary, as it stands in the recommendatory act from Annapolis; 4th, that the alterations and provisions were to be reported to Congress, and to the States, in order to be agreed to by the former and confirmed by the latter.
From a comparison and fair construction of these several modes of expression, is to be deduced the authority under which the convention acted. They were to frame a national government, adequate to the exigencies of government, and of the Union, and to reduce the articles of Confederation into such form as to accomplish these purposes.
There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.
Suppose, then, that the expressions defining the authority of the convention were irreconcilably at variance with each other; that a national and adequate government could not possibly, in the judgment of the convention, be effected by alterations and provisions in the articles of Confederation; which part of the definition ought to have been embraced, and which rejected? Which was the more important, which was the less important part? Which the end; which the means? Let the most scrupulous expositors of delegated powers; let the most inveterate objectors against those exercised by the convention, answer these questions. Let them declare, whether it was of most importance to the happiness of the people of America, that the articles of Confederation should be disregarded, and an adequate government be provided, and the Union preserved; or that an adequate government should be omitted, and the articles of Confederation preserved. Let them declare, whether the preservation of these articles was the end, for securing which a reform of the government was to be introduced as the means; or whether the establishment of a government, adequate to the national happiness, was the end at which these articles themselves originally aimed, and to which they ought, as insufficient means, to have been sacrificed.
But is it necessary to suppose that these expressions are absolute irreconcilable to each other; that no alterations or provisions in the articles of the Confederation could possibly mound them into a national and adequate government; into such a government as had been proposed by the convention? No stress, it is presumed, will, in this case, be laid on the title; a change of that could never be deemed an exercise of ungranted power. Alterations in the body of the instrument are expressly authorized.
New provisions therein are also expressly authorized. Here then is a power to change the title; to insert new articles; to alter old ones. Must it of necessity be admitted that this power is infringed, so long as a part of the old articles remain? Those who maintain the affirmative ought at least to mark the boundary between the authorized and usurped innovations; between the degree of change which lies within the compass of alterations and further provisions, and that which amounts to a transmutation of the government. Will it be said that the alterations ought not to have touched the substance of the Confederation? The States would never have appointed a convention with so much solemnity, nor described it objects with so much latitude, if some substantial reform had not been in contemplation. Will it be said that the fundamental principles of the Confederation were not within the purview of the convention, and ought not to have been varied? I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed. Do they require that the members of the government should derive their appointment from the legislatures, not from the people of the States? One branch of the new government is to be appointed by these legislatures; and under the Confederation, the delegates to Congress may all be appointed immediately by the people, and in two States *030 are actually so appointed. Do they require that the powers of the government should act on the States, and not immediately on individuals? In some instances, as has been shown, the powers of the new government will act on the States in their collective characters. In some instances, also, those of the existing government act immediately on individuals. In cases of capture; of piracy; of the post office; of coins, weights, and measures; of trade with the Indians; of claims under grants of land by different States; and, above all, in the case of trials by courts-martial in the army and navy, by which death may be inflicted without the intervention of a jury, or even of a civil magistrate;-in all these cases the powers of the Confederation operate immediately on the persons and interests of individual citizens. Do these fundamental principles require, particularly, that no tax should be levied without the intermediate agency of the States? The Confederation itself authorizes a direct tax, to a certain extent, on the post office. The power of coinage has been so construed by Congress as to levy a tribute immediately from that source also. But pretermitting these instances, was it not an acknowledged object of the convention and the universal expectation of the people, that the regulation of trade should be submitted to the general government in such a form as would render it an immediate source of general revenue?
Had not Congress repeatedly recommended this measure as not inconsistent with the fundamental principles of the Confederation? Had not every State but one; had not New York herself, so far complied with the plan of Congress as to recognize the principle of the innovation? Do these principles, in fine, require that the powers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government, as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.
The truth is that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.
In one particular it is admired that the convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation of the legislatures of all the States, they have reported a plan which is to be confirmed by the people, and may be carried into effect by nine States only. It is worthy of remark that this objection, though the most plausible, has been the least urged in the publications which have swarmed against the convention.
The forbearance can only have proceeded from an irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth; from the example of inflexible opposition given by a majority of one sixtieth of the people of America to a measure approved and called for by the voice of twelve States, comprising fifty-nine sixtieths of the people- an example still fresh in the memory and indignation of every citizen who has felt for the wounded honor and prosperity of his country. As this objection, therefore, has been in a manner waived by those who has criticised the powers of the convention, I dismiss it without further observation.
The third point to be inquired into is, how far considerations of duty arising out of the case itself could have supplied any defect of regular authority. In the preceding inquiries the powers of the convention have been analyzed and tried with the same rigor, and by the same rules, as if they had been real and final powers for the establishment of a Constitution for the United States. We have seen in what manner they have borne the trial even on that supposition. It is time now to recollect that the powers were merely advisory and recommendatory; that they were so meant by the States, and so understood by the convention; and that the latter have accordingly planned and proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed. This reflection places the subject in a point of view, altogether different, and will enable us to judge with propriety of the course taken by the convention.
Let us view the ground on which the convention stood. It may be collected from their proceedings, that they were deeply and unanimously impressed with the crisis which had led their country almost with one voice to make so singular and solemn an experiment for correcting the errors of a system by which this crisis had been produced; that they were no less deeply and unanimously convinced that such a reform as they have proposed was absolutely necessary to effect the purposes of their appointment. It could not be unknown to them that the hopes and expectations of the great body of citizens, throughout this great empire, were turned with the keenest anxiety to the event of their deliberations. They had every reason to believe that the contrary sentiments agitated the minds and bosoms of every external and internal foe to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity with which the proposition, made by a single State (Virginia), towards a partial amendment of the Confederation, had been attended to and promoted. They had seen the liberty assumed by a very few deputies from a very few States, convened at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified by the public opinion, but actually carried into effect by twelve out of the thirteen States. They had seen, in a variety of instances, assumptions by Congress, not only of recommendatory, but of operative, powers, warranted, in the public estimation, by occasions and objects infinitely less urgent than those by which their conduct was to be governed. They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to “abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,” *031 since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some informal and unauthorized propositions, made by some patriotic and respectable citizen or number of citizens. They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their ancient government; that committees and congresses were formed for concentrating their efforts and defending their rights; and that conventions were elected in the several States for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were anywhere seen, except in those who wished to indulge, under these masks, their secret enmity to the substance contended for. They must have borne in mind, that as the plan to be framed and proposed was to be submitted to the people themselves, the disapprobation of this supreme authority would destroy it forever; its approbation blot out antecedent errors and irregularities. It might even have occurred to them, that where a disposition to cavil prevailed, their neglect to execute the degree of power vested in them, and still more their recommendation of any measure whatever, not warranted by their commission, would not less excite animadversion, than a recommendation at once of a measure fully commensurate to the national exigencies.
Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly confidence in their country, by whose confidence they had been so peculiarly distinguished, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen resolution of disappointing its ardent hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken in his bosom one patriotic emotion, what judgment ought to have been pronounced by the impartial world, by the friends of mankind, by every virtuous citizen, on the conduct and character of his assembly? Or if there be a man who propensity to condemn is susceptible of no control, let me then ask what sentence he has in reserve for the twelve States who usurped the power of sending deputies to the convention, a body utterly unknown to their constitutions; for Congress, who recommended the appointment of this body, equally unknown to the Confederation; and for the State of New York, in particular, which first urged and then complied with this unauthorized interposition?
But that the objectors may be disarmed of every pretext, it shall be granted for a moment that the convention were neither authorized by their commission, nor justified by circumstances in proposing a Constitution for their country: does it follow that the Constitution ought, for that reason alone, to be rejected? If, according to the noble precept, it be lawful to accept good advice even from an enemy, shall we set the ignoble example of refusing such advice even when it is offered by our friends? The prudent inquiry, in all cases, ought surely to be, not so much from whom the advice comes, as whether the advice be good.
The sum of what has been here advanced and proved is, that the charge against the convention of exceeding their powers, except in one instance little urged by the objectors, has no foundation to support it; that if they had exceeded their powers, they were not only warranted, but required, as the confidential servants of their country, by the circumstances in which they were placed, to exercise the liberty which they assumed; and that finally, if they had violated both their powers and their obligations, in proposing a Constitution, this ought nevertheless to be embraced, if it be calculated to accomplish the views and happiness of the people of America. How far this character is due to the Constitution, is the subject under investigation.
– PUBLIUS
1. Whether any part of the powers transferred to the general government be unnecessary or improper?
2. Whether the entire mass of them be dangerous to the portion of jurisdiction left in the several States?
Is the aggregate power of the general government greater than ought to have been vested in it? This is the first question.
It cannot have escaped those who have attended with candor to the arguments employed against the extensive powers of the government, that the authors of them have very little considered how far these powers were necessary means of attaining a necessary end. They have chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power or trust, of which a beneficial use can be made. This method of handling the subject cannot impose on the good sense of the people of America. It may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, good; and that in every political institution, a power to advance the public happiness involves a discretion which may be misapplied and abused. They will see, therefore, that in all cases where power is to be conferred, the point first to be decided is, whether such a power be necessary to the public good; as the next will be, in case of an affirmative decision, to guard as effectually as possible against a perversion of the power to the public detriment.
That we may form a correct judgment on this subject, it will be proper to review the several powers conferred on the government of the Union; and that this may be the more conveniently done they may be reduced into different classes as they relate to the following different objects:
1. Security against foreign danger;
2. Regulation of the intercourse with foreign nations;
3. Maintenance of harmony and proper intercourse among the States;
4. Certain miscellaneous objects of general utility;
5. Restraint of the States from certain injurious acts;
6. Provisions for giving due efficacy to all these powers.
The powers falling within the first class are those of declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.
Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.
Is the power of declaring war necessary? No man will answer this question in the negative. It would be superfluous, therefore, to enter into a proof of the affirmative. The existing Confederation establishes this power in the most ample form.
Is the power of raising armies and equipping fleets necessary? This is involved in the foregoing power. It is involved in the power of self-defence. But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in war?
The answer to these questions has been too far anticipated in another place to admit an extensive discussion of them in this place. The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.
How could a readiness for war in time of peace of safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of necessary and multiplied repetitions. If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions. The fifteenth century was the unhappy epoch of military establishments in the time of peace. They were introduced by Charles VII. of France. All Europe has followed, or been forced into, the example. Had the example not been followed by other nations, all Europe must long ago have worn the chains of a universal monarch. Were every nation except France now to disband its peace establishments, the same event might follow. The veteran legions of Rome were an overmatch for the undisciplined valor of all other nations, and rendered her the mistress of the world.
Not the less true is it, that the liberties of Rome proved the final victim to her military triumphs; and that the liberties of Europe, as far as they every existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precautions. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties.
The clearest marks of this prudence are stamped on the proposed Constitution. The Union itself, which it cements and secures, destroys every pretext for a military establishment which could be dangerous. America united, with a handful of troops, or without a single soldier, exhibits a more forbidding posture to foreign ambition than American disunited, with a hundred thousand veterans ready for combat. It was remarked, on a former occasion, that the want of this pretext had saved the liberties of one nation in Europe. Being rendered by her insular situation and her maritime resources impregnable to the armies of her neighbors, the rulers of Great Britain have never been able, by real or artificial dangers, to cheat the public into an extensive peace establishment. The distance of the United States from the powerful nations of the world gives them the same happy security. A dangerous establishment can never be necessary or plausible, so long as they continue a united people. But let it never, for a moment, be forgotten that they are indebted for this advantage to the Union alone. The moment of its dissolution will be the date of a new order of things. The fears of the weaker, or the ambition of the stronger States, or Confederacies, will set the same example in the New, as Charles VII. did in the Old World. The example will be followed here from the same motives which produced universal imitation there.
Instead of deriving from our situation the precious advantage which Great Britain has derived from hers, the face of America will be but a copy of that of the continent of Europe. It will present liberty everywhere crushed between standing armies and perpetual taxes. The fortunes of disunited America will be even more disastrous than those of Europe. The sources of evil in the latter are confined to her own limits. No superior powers of another quarter of the globe intrigue among her rival nations, inflame their mutual animosities, and render them the instruments of foreign ambition, jealousy, and revenge. In America the miseries springing from her internal jealousies, contentions, and wars, would form a part only of her lot. A plentiful addition of evils would have their source in that relation in which Europe stands to this quarter of the earth, and which no other quarter of the earth bears to Europe.
This picture of the consequences of disunion cannot be too highly colored, or too often exhibited. Every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it.
Next to the effectual establishment of the Union, the best possible precaution against danger from standing armies is a limitation of the term for which revenue may be appropriated to their support. This precaution the Constitution has prudently added. I will not repeat here the observations which I flatter myself have placed this subject in a just and satisfactory light. But it may not be improper to take notice of an argument against this part of the Constitution, which has been drawn from the policy and practice of Great Britain. It is said that the continuance of an army in that kingdom requires an annual vote of the legislature; whereas the American Constitution has lengthened this critical period to two years. This is the form in which the comparison is usually stated to the public: but is it a just form? Is it a fair comparison? Does the British Constitution restrain the parliamentary discretion to one year? Does the American impose on the Congress appropriations for two years? On the contrary, it cannot be unknown to the authors of the fallacy themselves, that the British Constitution fixes no limit whatever to the discretion of the legislature, and that the American ties down the legislature to two years, as the longest admissible term.
Had the argument from the British example been truly stated, it would have stood thus: The term for which supplies may be appropriated to the army establishment, though unlimited by the British Constitution, has nevertheless, in practice, been limited by parliamentary discretion to a single year. Now, if in Great Britain, where the House of commons is elected for seven years; where so great a proportion of the members are elected by so small a proportion of the people; where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown, the representative body can possess a power to make appropriations to the army for an indefinite term, without desiring, or without daring, to extend the term beyond a single year, ought not suspicion herself to blush, in pretending that the representatives of the United States, elected FREELY by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely intrusted with the discretion over such appropriations, expressly limited to the short period of TWO YEARS?
A bad cause seldom fails to betray itself. Of this truth, the management of the opposition to the federal government is an unvaried exemplification. But among all the blunders which have been committed, none is more striking than the attempt to enlist on that side the prudent jealousy entertained by the people, of standing armies. The attempt has awakened fully the public attention to that important subject; and has led to investigations which must terminate in a thorough and universal conviction, not only that the Constitution has provided the most effectual guards against danger from that quarter, but that nothing short of a Constitution fully adequate to the national defence and the preservation of the Union, can save America from as many standing armies as it may be split into States or Confederacies, and from such a progressive augmentation, of these establishments in each, as will render them as burdensome to the properties and ominous to the liberties of the people, as any establishment that can become necessary, under a united and efficient government, must be tolerable to the former and safe to the latter.
The palpable necessity of the power to provide and maintain a navy has protected that part of the Constitution against a spirit of censure, which has spared few other parts. It must, indeed, be numbered among the greatest blessings of America, that as her Union will be the only source of her maritime strength, so this will be a principal source of her security against danger from abroad. In this respect our situation bears another likeness to the insular advantage of Great Britain. The batteries most capable of repelling foreign enterprises on our safety, are happily such as can never be turned by a perfidious government against our liberties.
The inhabitants of the Atlantic frontier are all of them deeply interested in this provision for naval protection, and if they have hitherto been suffered to sleep quietly in their beds; if their property has remained safe against the predatory spirit of licentious adventurers; if their maritime towns have not yet been compelled to ransom themselves from the terrors of a conflagration, by yielding to the exactions of daring and sudden invaders, these instances of good fortune are not to be ascribed to the capacity of the existing government for the protection of those from whom it claims allegiance, but to causes that are fugitive and fallacious.
If we except perhaps Virginia and Maryland, which are peculiarly vulnerable on their eastern frontiers, no part of the Union ought to feel more anxiety on this subject than New York. Her sea-coast is extensive. A very important district of the State is an island. The State itself is penetrated by a large navigable river for more than fifty leagues. The great emporium of its commerce, the great reservoir of its wealth, lies every moment at the mercy of events, and may almost be regarded as a hostage for ignominious compliances with the dictates of a foreign enemy, or even with the rapacious demands of pirates and barbarians. Should a war be the result of the precarious situation of European affairs, and all the unruly passions attending it be let loose on the ocean, our escape from insults and depredations, not only on that element, but every part of the other bordering on it, will be truly miraculous. In the present condition of America, the States more immediately exposed to these calamities have nothing to hope from the phantom of a general government which now exists; and if their single resources were equal to the task of fortifying themselves against the danger, the object to be protected would be almost consumed by the means of protecting them.
The power of regulating and calling forth the militia has been already sufficiently vindicated and explained. The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defence, is properly thrown into the same class with it. This power, also, has been examined
already with much attention, and has, I trust, has been clearly shown to be necessary, both in the extent and form given to it by the Constitution. I will address one additional reflection only to those who contend that the power ought to have been restrained to external taxation- by which they mean, taxes on articles imported from other countries. It cannot be doubted that this will always be a valuable source of revenue; that for a considerable time it must be a principal source; that at this moment it is an essential one. But we may form very mistaken ideas on this subject, if we do not call to mind in our calculations, that the extent of revenue drawn from foreign commerce must vary with the variations, both in the extent and the kind of imports; and that these variations do not correspond with the progress of population, which must be the general measure of the public wants. As long as agriculture continues the sole field of labor, the importation of manufactures must increase as the consumers multiply. As soon as domestic manufactures are begun by the hands not called for by agriculture, the imported manufactures will decrease as the numbers of people increase. In a more remote stage, the imports may consist in a considerable part of raw materials, which will be wrought into articles for exportation, and will, therefore, require rather the encouragement of bounties, than to be loaded with discouraging duties. A system of government, meant for duration, ought to contemplate these revolutions, and be able to
accommodate itself to them.
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury; or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied by signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are, “their common defence, security of their liberties, and mutual and general welfare.” The terms of article eighth are still more identical: “All charges of war and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,” etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever. But what would have been thought of that assembly, if, attaching themselves to these general expressions, and disregarding the specifications which ascertain and limit their import, they had exercised an unlimited power of providing for the common defence and general welfare? I appeal to the objectors themselves, whether they would in that case have employed the same reasoning in justification of Congress as they now make use of against the convention. How difficult it is for error to escape its own condemnation!
– PUBLIUS
The term ambassador, if taken strictly, as seems to be required by the second of the articles of Confederation, comprehends the highest grade only of public ministers, and excludes the grades which the United States will be most likely to prefer, where foreign embassies may be necessary. And under no latitude of construction will the term comprehend consuls. Yet it has been found expedient, and has been the practice of Congress, to employ the inferior grades of public ministers, and to send and receive consuls.
It is true, that where treaties of commerce stipulate for the mutual appointment of consuls, whose functions are connected with commerce, the admission of foreign consuls may fall within the power of making commercial treaties; and that where no such treaties exist, the mission of American consuls into foreign countries may perhaps be covered under the authority, given by the ninth article of the Confederation, to appoint all such civil officers as may be necessary for managing the general affairs of the United States. But the admission of consuls into the United States, where no previous treaty has stipulated it, seems to have been nowhere provided for. A supply of the omission is one of the lesser instances in which the convention have improved on the model before them. But the most minute provisions become important when they tend to obviate the necessity or the pretext for gradual and unobserved usurpations of power. A list of the cases in which Congress have been betrayed, or forced by the defects of the Confederation, into violations of their chartered authorities, would not a little surprise those who have paid no attention to the subject; and would be no inconsiderable argument in favor of the new Constitution, which seems to have provided no less studiously for the lesser, than the more obvious and striking defects of the old.
The power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, belongs with equal propriety to the general government, and is a still greater improvement on the articles of Confederation. These articles contain no provision for the case of offences against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision of the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offences. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. Felony is a term of signification, even in the common law of England; and of various import in the statute law of that kingdom. But neither the common nor the statute law of that, or of any other nation, ought to be a standard for the proceedings of this, unless previously made its own by legislative adoption. The meaning of the term, as defined in the codes of the several States, would be as impracticable as the former would be a dishonorable and illegitimate guide. It is not precisely the same in any two of the States; and varies in each with every revision of its criminal laws. For the sake of certainty and uniformity, therefore, the power of defining felonies in this case was in every respect necessary and proper.
The regulation of foreign commerce, having fallen within several views which have been taken of this subject, has been too fully discussed to need additional proofs here of its being properly submitted to the federal administration.
It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it has been suffered to have immediate operation. But it is not difficult to account, either for this restriction on the general government, or for the manner in which the whole clause is expressed. It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate forever, within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the federal government, and may be totally abolished, by a concurrence of the few States which continue to unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union.
Happy would it be for the unfortunate Africans, if an equal prospect lay before them of being redeemed from the oppressions of their uropean brethren!
Attempts have been made to pervert this clause into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice, and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.
The powers included in the third class are those which provide the harmony and proper intercourse among the States. Under this head might be included the particular restraints imposed on the authority of the States, and certain powers of the judicial department; but the former are reserved for a distinct class, and the latter will be particularly examined when we arrive at the structure and organization of the government. I shall confine myself to a cursory review of the remaining powers comprehended under this third description, to wit: to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin: to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy; to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.
The necessity of a superintending authority over the reciprocal trade of confederate States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an organization of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.
Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission. The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is then restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.
All that need be remarked on the power to coin money, regulate the value thereof, and of foreign coin, is, that by providing for this last case, the Constitution has supplied a material omission in the articles of Confederation. The authority of the existing Congress is restrained to the regulation of coin struck by their own authority, or that of the respective States. It must be seen at once that the proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.
The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.
The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. There is confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizens in another, and people in another; or what was meant by superadding to “all privileges and immunities of free citizens,: “all the privileges of trade and commerce,” cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State: so that it may be in the power of a particular State, or rather every State is laid under a necessity, not only to confer the rights of citizenshipin other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term “inhabitants” to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. An alien, therefore legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States.
The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of its seems not likely to be drawn into question.
The power of prescribing the general laws, the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.
The power of establishing post roads must, in every view, be a harmless power and may, perhaps, by judicious management, become productive of great public conveniency. Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.
– PUBLIUS
1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.” The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
2. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the legislatures of the States in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”
The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight, as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hand of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence.
The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State, in their adoption of the Constitution, every imaginable objection seems to be obviated.
The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend, to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated, by requiring the concurrence of the States concerned, in every such establishment.
3. “To declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.” As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.
4. “To admit new States into the Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of legislatures of the States concerned, as well as of the Congress.” In the articles of Confederation, no provision is found on this important subject. Canada was to be admitted of right, on her joining in the measures of the United States; and the other colonies, by which were evidently meant the other British colonies, at the discretion of nine States. The eventual establishment of new States seems to have been overlooked by the compilers of that instrument. We have seen the inconvenience of this omission, and the assumption of power into which Congress have been led by it. With great propriety, therefore, has the new system supplied the defect.
The general precaution, that no new States shall be formed, without the concurrent of the federal authority, and that of the States concerned, is consonant to the principles which ought to govern such transactions. The particular precaution against the erection of new States, by the partition of a State without its consent, quiets the jealousy of the larger States; as that of the smaller is quieted by a like precaution, against a junction of States without their consent.
5. “To dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with a proviso, that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.”
This is a power of very great importance, and required by considerations similar to those which show the propriety of the former. The proviso annexed is proper in itself, and was probably rendered absolutely necessary by jealousies and questions concerning the Western territory sufficiently known to the public.
6. “To guarantee to every State in the Union a republican form of government; to protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.” In a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations. The more intimate the nature of such a union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained. But a right implies a remedy; and where else could the remedy be deposited, than where it is deposited by the Constitution? Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature. “As the confederate republic of Germany,” says Montesquieu, “consists of free cities and petty states, subject to different princes, experience shows us that it is more imperfect than that of Holland and Switzerland.” “Greece was undone,” he adds, “as soon as the king of Macedon obtained a seat among the Amphictyons.” In the latter case, no doubt, the disproportionate force, as well as the monarchical form, of the new confederate, had its share of influence on the events. It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the general government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the general government should interpose by virtue of this constitutional authority, it will be, of course, bound to pursue the authority. But the authority extends no further than to a guaranty of a republican form of government, which supposes a preexisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever, the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican Constitutions: a restriction which, it is presumed, will hardly be considered as a grievance.
A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article. Protection against domestic violence is added with equal propriety. It has been remarked, that even among the Swiss cantons, which, properly speaking, are not under one government, provision is made for this object; and the history of that league informs us that mutual aid is frequently claimed and afforded; and as well by the most democratic, as the other cantons. A recent and well-known event among ourselves has warned us to be prepared for emergencies of a like nature.
At first view, it might seem not square with the republican theory, to suppose, either a majority have not the right, or that a minority will have the force, to subvert a government, and consequently, that the federal interposition can never be required, but when it would be improper. But theoretic reasoning, in this as in most other cases, must be qualified by the lessons of practice. Why may not illicit combinations, for purposes of violence, be formed as well by a majority of a State, especially a small State as by a majority of a county, or a district of the same State; and if the authority of the State ought, in the latter case, to protect the local magistracy, ought not the federal authority, in the former, to support the State authority? Besides, there are certain parts of the State constitutions which are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other. Insurrections in a State will rarely induce a federal interposition, unless the number concerned in them bear some proportion to the friends of government. It will be much better that the violence in such cases should be repressed by the superintending power, than that the majority should be left to maintain their cause by a bloody and obstinate contest. The existence of a right to interpose, will generally prevent the necessity of exerting it. Is it true that force and right are necessarily on the same side in republican governments? May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers, as will render it superior also in an appeal to the sword? May not a more compact and advantageous position turn the scale on the same side, against a superior number so situated as to be less capable of a prompt and collected exertion of its strength? Nothing can be more chimerical than to imagine that in a trial of actual force, victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of CITIZENS may become a majority of PERSONS, by the accession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage? I take no notice of an unhappy species of population abounding in some of the States, who, during the calm of regular government, are sunk below the level of men; but who, in the tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind!
Should it be asked, what is to be the redress for an insurrection pervading all the States, and comprising a superiority of the entire force, though not a constitutional right? the answer must be, that such a case, as it would be without the compass of human remedies, so it is fortunately not within the compass of human probability; and that is a sufficient recommendation of the federal Constitution, that it diminishes the risk of a calamity for which no possible constitution can provide a cure.
Among the advantages of a confederate republic enumerated by Montesquieu, an important one is, “that should a popular insurrection happen in one of the States, the others are able to quell it. Should abuses creep into one part, they are informed by those that remain sound.”
7. “To consider all debts contracted, and engagements entered into, before the adoption of the Constitution, as being no less valid against the United States, under this Constitution, than under the Confederation.”
This can only be considered as a declaratory proposition; and may have been inserted, among other reasons, for the satisfaction of the foreign creditors of the United States, who cannot be strangers to the pretended doctrine, that a change in the political form of civil society has the magical effect of dissolving its moral obligations.
Among the lesser criticisms which have been exercised on the Constitution, it has been remarked that the validity of engagements ought to have been asserted in favor of the United States, as well as against them; and in the spirit which usually characterizes little critics, the omission has been transformed and magnified into a plot against the national rights. The authors of this discovery may be told, what few others need to be informed of, that as engagements are in their nature reciprocal, an assertion of their validity on one side; necessarily involves a validity on the other side; and that as the article is merely declaratory, the establishment of the principle in one case is sufficient for every case. They may be further told, that every constitution must limit its precautions to dangers that are not altogether imaginary; and that no real danger can exist that the government would DARE, with, or even without, this constitutional declaration before it, to remit the debts justly due to the public, on the pretext here condemned.
8.”To provide for amendments to be ratified by three fourths of the States, under two exceptions only.” That useful alterations will be suggested by experience, could not but be foreseen. It will requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality.
The other exception must have been admitted on the same considerations which produced the privilege defended by it.
9. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same.” This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.
Two questions of a very delicate nature present themselves on this occasion:
1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?
2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.
The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other.
– PUBLIUS
The prohibition against treaties, alliances, and confederations makes a part of the existing articles of Union; and for reasons which need no explanation, is copied into the new Constitution. The prohibition of letters of marque is another part of the old system, but is somewhat extended in the new. According to the former, letters of marque could be granted by the States after a declaration of war; according to the latter, these licenses must be obtained, as well during war as previous to its declaration, from the government of the United States. This alteration is fully justified by the advantage of uniformity in all points which relate to foreign powers; and of immediate responsibility to the nation in all those for whose conduct the nation itself is to be responsible.
The right of coining money, which is here taken from the States, was left in their hands by the Confederation, as a concurrent right with that of Congress, under an exception in favor of the exclusive right of Congress to regulate the alloy and value. In this instance, also, the new provision is an improvement on the old. Whilst the alloy and value depended on the general authority, a right of coinage in the particular States could have no other effect than to multiply expensive mints and diversify the forms and weights of the circulating pieces. The latter inconveniency defeats one purpose for which the power was originally submitted to the federal head; and as far as the former might prevent an inconvenient remittance of gold and silver to the central mint for recoinage, the end can be as well attainedby local mints established under the general authority.
The extension of the prohibition to bills of credit must give pleasure to every citizen, in proportion to his love of justice and his knowledge of the true springs of public prosperity. The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man, on the necessary confidence in public councils, on the industry and morals of people, and on the character of republican government, constitutes an enormous debt against the State chargeable with this unadvised measure, which must long remain unsatisfied; or rather an accumulation of guilt, which can be expiated no otherwise than by a voluntary sacrifice on the altar of justice, of the power which has been the instrument of it. In addition to these persuasive considerations, it may be observed, that the same reasons which show the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States, and thus the intercourse among them would be impeded; retrospective alterations in its value might be made, and thus the citizens of other States be injured, and animosities be kindled among the States themselves. The subjects of foreign powers might suffer from the same cause, and hence the Union be discredited and embroiled by the indiscretion of a single member. No one of these mischiefs is less incident to a power in the States to emit paper money, than to coin gold or silver. The power to make any thing but gold and silver a tender in payment of debts, is withdrawn from the States, on the same principle with that of issuing a paper currency.
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society. The prohibition with respect to titles of nobility is copied from the articles of Confederation, and needs no comment.
2. “No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay.”
The restraint on the power of the States over imports and exports is enforced by all the arguments which prove the necessity of submitting the regulation of trade to the federal councils. It is needless, therefore, to remark further on this head, than that the manner in which the restraint is qualified seems well calculated at once to secure to the States reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion. The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark.
The sixth and last class consists of the several powers and provisions by which efficacy is given to all the rest.
1. Of these the first is, “the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof.”
Few parts of the Constitution have been assailed with more intemperance than this; yet on a fair investigation of it, no part can appear more completely invulnerable. Without the substance of this power, the whole Constitution would be a dead letter. Those who object to the article, therefore, as a part of the Constitution, can only mean that the form of the provision is improper. But have they considered whether a better form could have been substituted?
There are four other possible methods which the Constitution might have taken on this subject. They might have copied the second article of the existing Confederation, which would have prohibited the exercise of any power not expressly delegated; they might have attempted a positive enumeration of the powers comprehended under the general terms “necessary and proper”; they might have attempted a negative enumeration of them, by specifying the powers excepted from the general definition; they might have been altogether silent on the subject, leaving these necessary and proper powers to construction and inference.
Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term “expressly” with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction.
It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of construction or implication. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not expressly granted.
Had the convention attempted a positive enumeration of the powers necessary and proper for carrying their other powers into effect, the attempt would have involved a complete digest of laws on every subject to which the Constitution relates; accommodated too, not only to the existing state of things, but to all the possible changes which futurity may produce; for in every new application of a general power, the particular powers, which are the means of attaining the object of the general power, must always necessarily vary with that object, and be often properly varied whilst the object remains the same.
Had they attempted to enumerate the particular powers or means not necessary or proper for carrying the general powers into execution, the task would have been no less chimerical; and would have been liable to this further objection, that every defect in the enumeration would have been equivalent to a positive grant of authority. If, to avoid this consequence, they had attempted a partial enumeration of the exceptions, and described the residue by the general terms, not necessary or proper, it must have happened that the enumeration would comprehend a few of the excepted powers only; that these would be such as would be least likely to be assumed or tolerated, because the enumeration would of course select such as would be least necessary or proper; and that the unnecessary and improper powers included in the residuum, would be less forcibly excepted, than if no partial enumeration had been made.
Had the Constitution been silent on this head, there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government, by unavoidable implication. No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included. Had this last method, therefore, been pursued by the convention, every objection now urged against their plan would remain in all its plausibility; and the real inconveniency would be incurred of not removing a pretext which may be seized on critical occasions for drawing into question the essential powers of the Union.
If it be asked what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution, and exercise powers not warranted by its true meaning, I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the State legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the federal than of the State legislatures, for this plain reason, that as every such act of the former will be an invasion of the rights of the latter, these will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives. There being no such intermediate body between the State legislatures and the people interested in watching the conduct of the former, violations of the State constitutions are more likely to remain unnoticed and unredressed.
2. “This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”
The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State constitutions had been left complete by a saving clause in their favor.
In the first place, as these constitutions invest the State legislatures with absolute sovereignty, in all cases not excepted by the existing Articles of Confederation, all the authorities contained in the proposed Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition with their predecessors.
In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former would, in such States, have brought into question every power contained in the proposed Constitution. In the third place, as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others.
In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.
3. “The Senators and Representatives, and the members of the several State legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by oath or affirmation to support this Constitution.”
It has been asked why it was thought necessary, that the State magistracy should be bound to support the federal Constitution, and unnecessary that a like oath should be imposed on the officers of the United States, in favor of the State constitutions.
Several reasons might be assigned for the distinction. I content myself with one, which is obvious and conclusive. The members of the federal government will have no agency in carrying the State constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the federal Constitution. The election of the President and Senate will depend, in all cases, on the legislatures of
the several States. And the election of the House of Representatives will equally depend on the same authority in the first instance; and will, probably, forever be conducted by the officers, and according to the laws, of the States.
4. Among the provisions for giving efficacy to the federal powers might be added those which belong to the executive and judiciary departments; but as these are reserved for particular examination in another place, I pass them over in this.
We have now reviewed, in detail, all the articles composing the sum or quantity of power delegated by the proposed Constitution to the federal government, and are brought to this undeniable conclusion, that no part of the power is unnecessary or improper for accomplishing the necessary objects of the Union. The question, therefore, whether this amount of power shall be granted or not, resolves itself into another questions, whether or not a government commensurate to the exigencies of the Union shall be established; or, in other words, whether the Union itself shall be preserved.
– PUBLIUS
Several important considerations have been touched in the course of these papers, which discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments. The more I revolve the subject, the more fully I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first scale.
We have seen, in all the examples of ancient and moderate confederacies, the strongest tendency continually betraying itself in the members, to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments. Although, in most of these examples, the system has been so dissimilar from that under consideration as greatly to weaken any inference concerning the latter from the fate of the former, yet, as the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty, the inference ought not to be wholly disregarded. In the Achaean league it is probable that the federal head had a degree and species of power, which gave it a considerable likeness to the government framed by the convention. The Lycian Confederacy, as far as its principles and form are transmitted, must have borne a still greater analogy to it. Yet history does not inform us that either of them ever degenerated, or tended to degenerate, into one consolidated government. On the contrary, we know that the ruin of one of them proceeded from the incapacity of the federal authority to prevent the dissensions, and finally the disunion, of the subordinate authorities. These cases are the more worthy of our attention, as the external cases by which the component parts were pressed together were much more numerous and powerful than in our case; and consequently less powerful ligaments within would be sufficient to bind the members to the head, and to each other.
In the feudal system, we have seen a similar propensity exemplified. Notwithstanding the want of proper sympathy in every instance between the local sovereigns and the people, and the sympathy in some instances between the general sovereign and the latter, it usually happened that the local sovereigns prevailed in the rivalship for encroachments. Had no external dangers enforced internal harmony and subordination, and particularly, had the local sovereigns possessed the affections of the people, the great kingdoms in Europe would at this time consist of as many independent princes as there were formerly feudatory barons.
The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating, the measure of each other.
The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, it at all, to the local influence of its members.
The number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular States. There will consequently be less of personal influence on the side of the former than of the latter. The members of the legislative, executive, and judiciary departments of thirteen and more States, the justices of peace, officers of militia, ministerial officers of justice, with all the county, corporation, and town officers, for three millions and more of people, intermixed, and having particular acquaintance with every class and circle of people, must exceed, beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system. Compare the members of the three great departments of the thirteen States, excluding from the judiciary department the justices of peace, with the members of the
corresponding departments of the single government of the Union; compare the militia officers of three millions of people with the military and marine officers of any establishment which is within the compass of probability, or, I may add of possibility, and in this view alone, we may pronounce the advantage of the States to be decisive. If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the sea-coast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side. It is true, that the Confederacy is to possess, and may exercise, the power of collecting internal as well as external taxes throughout the States; but it is probable that this power will not be resorted to, except for supplemental purposes of revenue; than an option will then be given to the States to supply their quotas by previous collections of their own; and that the eventual collection, under the immediate authority of the Union, will generally be made by the officers, and according to the rules, appointed by the several States. Indeed it is extremely probable, that in other instances, particularly in the organization of the judicial power, the officers of the States will be clothed with the correspondent authority of the Union. Should it happen, however, that separate collectors of internal revenue should be appointed under the federal government, the influence of the whole number would not bear a comparison with that of the multitude of State officers in the opposite scale.
Within every district to which a federal collector would be allotted, there would not be less than thirty or forty, or even more, officers of different descriptions, and many of them persons of character and weight, whose influence would lie on the side of the State.
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL powers. The regulations of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained. The powers relating to war and peace, armies and fleets, treaties and finance, with the other more considerable powers, are all vested in the existing Congress by the articles of Confederation. The proposed change does not enlarge these powers; it only substitutes a more effectual mode of administering them. The change relating to taxation may be regarded as the most important; and yet the present Congress have as complete authority to REQUIRE of the States indefinite supplies of money for the common defence and general welfare, as the future Congress will have to require them of individual citizens; and the latter will be no more bound than the States themselves have been, to pay the quotas respectively taxed on them. Had the States complied punctually with the articles of Confederation, or could their compliance have been enforced by as peaceable means as many be used with success towards single persons, our past experience is very far from countenancing an opinion, that the State governments would have lost their constitutional powers, and have gradually undergone an entire consolidation. To maintain that such an event would have ensued, would be to say at once, that the existence of the State governments is incompatible with any system whatever that accomplishes the essential purposes of the Union.
– PUBLIUS
Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States. Into the administration of these a greater number of individuals will expect to rise. From the gift of these a greater number of offices and emoluments will flow. By the superintending care of these, all the most domestic and personal interests of the people will be regulated and provided for. With the affairs of these, the people will be more familiarly and minutely conversant. And with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments; on the side of these, therefore, the popular bias may well be expected most strongly to incline.
Experience speaks the same language in this case. The federal administration, though hitherto very defective in comparison with what may be hoped under a better system, had, during the war, and particularly whilst the independent fund of paper emissions was in credit, an activity and importance as great as it can well have in any future circumstances whatever. It was engaged, too, in a course of measures which had for their object the projection of every thing that was dear, and the acquisition of every thing that could be desirable to the people at large. It was, nevertheless, invariably found, after the transient enthusiasm for the early Congress was over, that the attention and attachment of the people were turned anew to their own particular governments; that the federal council was at no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.
If, therefore, as has been elsewhere remarked, the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of a better administration, as will overcome all their antecedent propensities. And in that case, the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due; but even in that case the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.
The remaining points on which I propose to compare the federal and State governments, are the disposition and the faculty they may respectively possess, to resist and frustrate the measures of each other.
It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared, also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage. But in a distinct and very important point of view, the advantage will lie on the same side. The prepossessions, which the members themselves will carry into the federal government, will generally be favorable to the States; whilst it will rarely happen, that the members of the State governments will carry into the public councils a bias in favor of the general government. A local spirit will infallibly prevail much more in the members of Congress, than a national spirit will prevail in the legislatures of the particular States. Every one knows that a great proportion of the errors committed by the State legislatures proceeds from the disposition of the members to sacrifice the comprehensive and permanent interest of the State, to the particular and separate views of the counties or districts in which they reside. And if they do not sufficiently enlarge their policy to embrace the collective welfare of their particular State, how can it be imagined that they will make the aggregate prosperity of the Union, and the dignity and respectability of its government, the objects of their affections and consultations? For the same reason that the members of the State legislatures will be unlikely to attach themselves sufficiently to national objects, the members of the federal legislature will be likely to attach themselves too much to local objects. The States will be to the latter what counties and towns are to the former. Measures will too often be decided according to their probable effect, not on the national prosperity and happiness, but on the prejudices, interests, and pursuits of the governments and people of the individual States. What is the spirit that has in general characterized the proceedings of Congress? A perusal of their journals, as well as the candid acknowledgments of such as have had a seat in that assembly, will inform us, that the members have but too frequently displayed the character, rather of partisans of their respective States, than of impartial guardians of a common interest; that where on one occasion improper sacrifices have been made of local considerations, to the aggrandizement of the federal government, the great interests of the nation have suffered on a hundred, from an undue attention to the local prejudices, interests, and views of the particular States. I mean not by these reflections to insinuate, that the new federal government will not embrace a more enlarged plan of policy than the existing government may have pursued; much less, that its views will be as confined as those of the State legislatures; but only that it will partake sufficiently of the spirit of both, to be disinclined to invade the rights of the individual States, or the prerogatives of their governments. The motives on the part of the State governments, to augment their prerogatives by defalcations form the federal government, will be overruled by no reciprocal predispositions in the members.
Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter would still have the advantage in the means of defeating such encroachments. If an act of a particular State, though unfriendly to the national government, be generally popular in that State, and should not too grossly violate the oaths of the State officers, it is executed immediately and, of course, by means on the spot and depending on the State alone. The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to cooperate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would opposed, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. In the contest with Great Britain, one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise; but it was not in speculation absolutely chimerical. But what would be the contest in the case we are supposing? Who would be the parties? A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.
The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundreth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield; in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of the oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
The argument under the present head may be put into a very concise form, which appears altogether conclusive. Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.
On summing up the considerations stated in this and the last paper, they seem to amount to the most convincing evidence, that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them.
– PUBLIUS
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point.
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.
On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. he alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.
From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers,” he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; not administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department.
The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” Again: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to
arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
If we look into the constitutions of the several States, we find that, notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct. New Hampshire, whose constitution was the last formed, seems to have been fully aware of the impossibility and inexpediency of avoiding any mixture whatever of these departments, and has qualified the doctrine by declaring “that the legislative, executive, and judiciary powers ought to be kept as separate from, and independent of, each other as the nature of a free government will admit; or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of unity and amity.” Her constitution accordingly mixes these departments in several respects. The Senate, which is a branch of the legislative department, is also a judicial tribunal for the trial of impeachments. The President, who is the head of the executive department, is the presiding member also of the Senate; and, besides an equal vote in all cases, has a casting vote in case of a tie. The executive head is himself eventually elective every year by the legislative department, and his council is every year chosen by and from the members of the same department. Several of the officers of state are also appointed by the legislature. And the members of the judiciary department are appointed by the executive department.
The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative departments shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them.” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department.
In the very Constitution to which it is prefixed, a partial mixture of powers has been admitted. The executive magistrate has a qualified negative on the legislative body, and the Senate, which is a part of the legislature, is a court of impeachment for members both of the executive and judiciary departments. The members of the judiciary department, again, are appointable by the executive department, and removable by the same authority on the address of the two legislative branches. Lastly, a number of the officers of government are annually appointed by the legislative department. As the appointment to offices, particularly executive offices, is in its nature an executive function, the compilers of the Constitution have, in this last point at least, violated the rule established by themselves.
I pass over the constitutions of Rhode Island and Connecticut, because they were formed prior to the Revolution, and even before the principle under examination had become an object of political attention.
The constitution of New York contains no declaration on this subject; but appears very clearly to have been framed with an eye to the danger of improperly blending the different departments. It gives, nevertheless, to the executive magistrate, a partial control over the legislative department; and, what is more, gives a like control to the judiciary department; and even blends the executive and judiciary departments in the exercise of this control. In its council of appointment members of the legislative are associated with the executive authority, in the appointment of officers, both executive and judiciary. And its court for the trial of impeachments and correction of errors is to consist of one branch of the legislature and the principal members of the judiciary department.
The constitution of New Jersey has blended the different powers of government more than any of the preceding. The governor, who is the executive magistrate, is appointed by the legislature; is chancellor and ordinary, or surrogate of the State; is a member of the Supreme Court of Appeals, and president, with a casting vote, of one of the legislative branches. The same legislative branch acts again as executive council of the governor, and with him constitutes the Court of Appeals. The members of the judiciary department are appointed by the legislative department, and removable by one branch of it, on the impeachment of the other.
According to the constitution of Pennsylvania, the president, who is the head of the executive department, is annually elected by a vote in which the legislative department predominates. In conjunction with an executive council, he appoints the members of the judiciary department, and forms a court of impeachment for trial of all officers, judiciary as well as executive. The judges of the Supreme Court and justices of the peace seem also to be removable by the legislature; and the executive power of pardoning in certain cases, to be referred to the same department. The members of the executive council are made EX-OFFICIO justices of peace throughout the State In Delaware, the chief executive magistrate is annually elected by the legislative department. The speakers of the two legislative branches are vice-presidents in the executive department. The executive chief, with six others, appointed, three by each of the legislative branches, constitutes the Supreme Court of Appeals; he is joined with the legislative department in the appointment of the other judges. Throughout the States, it appears that the members of the legislature may at the same time be justices of the peace; in this State, the members of one branch of it are EX OFFICIO justices of the peace; as are also the members of the executive council. The principal officers of the executive department are appointed by the legislative; and one branch of the latter forms a court of impeachments. All officers may be removed on address of the legislature.
Maryland has adopted the maxim in the most unqualified terms; declaring that the legislative, executive, and judicial powers of government ought to be forever separate and distinct from each other. Her constitution, notwithstanding, makes the executive magistrate appointable by the legislative department; and the members of the judiciary by the executive department.
The language of Virginia is still more pointed on this subject. Her constitution declares, “that the legislative, executive, and judiciary departments shall be separate and distinct; so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them at the same time, except that the justices of county courts shall be eligible to either House of Assembly.” Yet we find not only this express exception, with respect to the members of the inferior courts, but that the chief magistrate, with his executive council, are appointable by the legislature; that two members of the latter are triennially displaced at the pleasure of the legislature; and that all the principal offices, both executive and judiciary, are filled by the same department. The executive prerogative of pardon, also, is in one case vested in the legislative department.
The constitution of North Carolina, which declares “that the legislative, executive, and supreme judicial powers of government ought to be forever separate and distinct from each other,” refers, at the same time, to the legislative department, the appointment not only of the executive chief, but all the principal officers within both that and the judiciary department.
In South Carolina, the constitution makes the executive magistracy eligible by the legislative department. It gives to the latter, also, the appointment of the members of the judiciary department, including even justices of the peace and sheriffs; and the appointment of officers in the executive department, down to captains in the army and navy of the State.
In the constitution of Georgia, where it is declared “that the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other,” we find that the executive department is to be filled by appointments of the legislature; and the executive prerogative of pardon to be finally exercised by the same authority. Even justices of the peace are to be appointed by the legislature. In citing these cases, in which the legislative, executive, and judiciary departments have not been kept totally separate and distinct, I wish not to be regarded as an advocate for the particular organizations of the several State governments. I am fully aware that among the many excellent principles which they exemplify, they carry strong marks of the haste, and still stronger of the inexperience, under which they were framed. It is but too obvious that in some instances the fundamental principle under consideration has been violated by too great a mixture, and even an actual consolidation, of the different powers; and that in no instance has a competent provision been made for maintaining in practice the separation delineated on paper. What I have wished to evince is, that the charge brought against the proposed Constitution, of violating the sacred maxim of free government, is warranted neither by the real meaning annexed to that maxim by its author, nor by the sense in which it has hitherto been understood in America. This interesting subject will be resumed in the ensuing paper.
– PUBLIUS
This is the security which appears to have been principally relied on by the compilers of most of the American constitutions. But experience assures us, that the efficacy of the provision has been greatly overrated; and that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government. The legislative department is everywhere extending the sphere of its activity, and drawing all power into its
impetuous vortex.
The founders of our republics have so much merit for the wisdom which they have displayed, that no task can be less pleasing than that of pointing out the errors into which they have fallen. A respect for truth, however, obliges us to remark, that they seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.
In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire. In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter. But in a representative republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.
The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not unfrequently a question of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere. On the other side, the executive power being restrained within a narrower compass, and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all: as the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence, over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.
I have appealed to our own experience for the truth of what I advance on this subject. Were it necessary to verify this experience by particular proofs, they might be multiplied without end. I might find a witness in every citizen who has shared in, or been attentive to, the course of public administrations. I might collect vouchers in abundance from the records and archives of every State in the Union. But as a more concise, and at the same time equally satisfactory, evidence, I will refer to the example of two States, attested by two unexceptionable authorities.
The first example is that of Virginia, a State which, as we have seen, has expressly declared in its constitution, that the three great departments ought not to be intermixed. The authority in support of it is Mr. Jefferson, who, besides his other advantages for remarking the operation of the government, was himself the chief magistrate of it. In order to convey fully the ideas with which his experience had impressed him on this subject, it will be necessary to quote a passage of some length from his very interesting “Notes on the State of Virginia,” p. 195. “All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one.
One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice. As little will it avail us, that they are chosen by ourselves. An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason, that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and the executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made; nor, if made, can be effectual; because in that case they may put their proceedings into the form of acts of Assembly, which will render them obligatory on the other branches. They have accordingly, in many instances, decided rights which should have been left to judiciary controversy, and the direction of the executive, during the whole time of their session, is becoming habitual and familiar.”
The other State which I shall take for an example is Pennsylvania; and the other authority, the Council of Censors, which assembled in the years 1783 and 1784. A part of the duty of this body, as marked out by the constitution, was “to inquire whether the constitution had been preserved inviolate in every part; and whether the legislative and executive branches of government had performed their duty as guardians of the people, or assumed to themselves, or exercised, other or greater powers than they are entitled to by the constitution.” In the execution of this trust, the council were necessarily led to a comparison of both the legislative and executive proceedings, with the constitutional powers of these departments; and from the facts enumerated, and to the truth of most of which both sides in the council subscribed, it appears that the constitution had been flagrantly violated by the legislature in a variety of important instances.
A great number of laws had been passed, violating, without any apparent necessity, the rule requiring that all bills of a public nature shall be previously printed for the consideration of the people; although this is one of the precautions chiefly relied on by the constitution against improper acts of the legislature. The constitutional trial by jury had been violated, and powers assumed which had not been delegated by the constitution. Executive powers had been usurped.
The salaries of the judges, which the constitution expressly requires to be fixed, had been occasionally varied; and cases belonging to the judiciary department frequently drawn within legislative cognizance and determination.
Those who wish to see the several particulars falling under each of these heads, may consult the journals of the council, which are in print. Some of them, it will be found, may be imputable to peculiar circumstances connected with the war; but the greater part of them may be considered as the spontaneous shoots of an ill-constituted government.
It appears, also, that the executive department had not been innocent of frequent breaches of the constitution. There are three observations, however, which ought to be made on this head: first, a great proportion of the instances were either immediately produced by the necessities of the war, or recommended by Congress or the commander-in-chief; secondly, in most of the other instances, they conformed either to the declared or the known sentiments of the legislative department; thirdly, the executive department of Pennsylvania is distinguished from that of the other States by the number of members composing it. In this respect, it has as much affinity to a legislative assembly as to an executive council. And being at once exempt from the restraint of an individual responsibility for the acts of the body, and deriving confidence from mutual example and joint influence, unauthorized measures would, of course, be more freely hazarded, than where the executive department is administered by a single hand, or by a few hands.
The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
– PUBLIUS
As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly coordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commission, can alone declare its true meaning, and enforce its observance?
There is certainly great force in this reasoning, and it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions. But there appear to be insuperable objections against the proposed recurrence to the people, as a provision in all cases for keeping the several departments of power within their constitutional limits.
In the first place, the provision does not reach the case of a combination of two of the departments against the third. If the legislative authority, which possesses so many means of operating on the motives of the other departments, should be able to gain to its interest either of the others, or even one third of its members, the remaining department could derive no advantage from its remedial provision. I do not dwell, however, on this objection, because it may be thought to be rather against the modification of the principle, than against the principle itself.
In the next place, it may be considered as an objection inherent in the principle, that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability. If it be true that all governments rest on opinion, it is not less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ancient as well as numerous, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded.
A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato.
And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side.
The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied. We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended.
But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government. We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments. The appeals to the people, therefore, would usually be made by the executive and judiciary departments. But whether made by one side or the other, would each side enjoy equal advantages on the trial? Let us view their different situations? The members of the executive and judiciary departments are few in number, and can be personally known to a small part only of the people. The latter, by the mode of their appointment, as well as by the nature and permanency of it, are too far removed from the people to share much in their prepossessions. The former are generally the objects of jealousy, and their administration is always liable to be discolored and rendered unpopular. The members of the legislative department, on the other hand, are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society. The nature of their public trust implies a personal influence among the people, and that they are more immediately the confidential guardians of the rights and liberties of the people. With these advantages, it can hardly be supposed that the adverse party would have an equal chance for a favorable issue.
But the legislative party would not only be able to plead their cause most successfully with the people. They would probably be constituted themselves the judges. The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies. The convention, in short, would be composed chiefly of men who had been, who actually were, or who expected to be, members of the department whose conduct was arraigned. They would consequently be parties to the very question to be decided by them.
It might, however, sometimes happen, that appeals would be made under circumstances less adverse to the executive and judiciary departments. The usurpations of the legislature might be so flagrant and so sudden, as to admit of no specious coloring. A strong party among themselves might take side with the other branches. The executive power might be in the hands of a peculiar favorite of the people. In such a posture of things, the public decision might be less swayed by prepossessions in favor of the legislative party. But still it could never be expected to turn on the true merits of the question. It would inevitably be connected with the spirit of preexisting parties, or of parties springing out of the question itself. It would be connected with persons of distinguished character and extensive influence in the community. It would be pronounced by the very men who had been agents in, or opponents of, the measures to which the decision would relate. The passions, therefore, not the reason, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.
We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose. How far the provisions of a different nature contained in the plan above quoted might be adequate, I do not examine. Some of them are unquestionably founded on sound political principals, and all of them are framed with singular ingenuity and precision.
– PUBLIUS
The scheme of revising the constitution, in order to correct recent breaches of it, as well as for other purposes, has been actually tried in one of the States. One of the objects of the Council of Censors which met in Pennsylvania in 1783 and 1784, was, as we have seen, to inquire, “whether the constitution had been violated, and whether the legislative and executive departments had encroached on each other.” This important and novel experiment in politics merits, in several points of view, very particular attention. In some of them it may, perhaps, as a single experiment, made under circumstances somewhat peculiar, be thought to be not absolutely conclusive. But as applied to the case under consideration, it involves some facts, which I venture to remark, as a complete and satisfactory illustration of the reasoning which I have employed.
First. It appears, from the names of the gentlemen who composed the council, that some, at least, of its most active and leading members had also been active and leading characters in the parties which preexisted in the State.
Secondly. It appears that the same active and influential members of the council had been active and influential members of the legislative and executive branches, within the period to be reviewed; and even patrons or opponents of the very measures to be thus brought to the test of the constitution. Two of the members had been vice-presidents of the State, and several others members of the executive council, within the seven preceding years. One of them had been speaker, and a number of others distinguished members, of the legislative assembly within the same period.
Thirdly. Every page of their proceedings witnesses the effect of all these circumstances on the temper of their deliberations. Throughout the continuance of the council, it was split into two fixed and violent parties. The fact is acknowledged and lamented by themselves. Had this not been the case, the face of their proceedings exhibits a proof equally satisfactory. In all questions, however unimportant in themselves, or unconnected with each other, the same names stand invariably contrasted on the opposite columns.
Every unbiased observer may infer, without danger of mistake, and at the same time without meaning to reflect on either party, or any individuals of either party, that, unfortunately, passion, not reason, must have presided over their decisions. When men exercise their reason coolly and freely on a variety of distinct questions, they inevitably fall into different opinions on some of them. When they are governed by a common passion, their opinions, if they are so to be called, will be the same.
Fourthly. It is at least problematical, whether the decisions of this body do not, in several instances, misconstrue the limits prescribed for the legislative and executive departments, instead of reducing and limiting them within their constitutional places.
Fifthly. I have never understood that the decisions of the council on constitutional questions, whether rightly or erroneously formed, have had any effect in varying the practice founded on legislative constructions. It even appears, if I mistake not, than in one instance the contemporary legislature denied the constructions of the council, and actually prevailed in the contest.
This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.
This conclusion cannot be invalidated by alleging that the State in which the experiment was made was at that crisis, and had been for a long time before, violently heated and distracted by the rage of party. Is it to be presumed, that at any future septennial epoch the same State will be free from parties? Is it to be presumed that any other State, at the same or any other given period, will be exempt from them? Such an event ought to be neither presumed nor desired; because an extinction of parties necessarily implies either a universal alarm for the public safety, or an absolute extinction of liberty. Were the precaution taken of excluding from the assemblies elected by the people, to revise the preceding administration of the government, all persons who should have been concerned with the government within the given period, the difficulties would not be obviated. The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.
– PUBLIUS
Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.
It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of powers, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other- that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defence. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defence with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department?
If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution, it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority- that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority.
This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States, oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rights of every class of citizens, will be diminished; and consequently the stability and independence of some member of the government, the only other security, must be proportionally increased.
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.
It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.
– PUBLIUS
The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith.
The term for which the representatives are to be elected falls under a second view which may be taken of this branch. In order to decide on the propriety of this article, two questions must be considered: first, whether biennial elections will, in this case, be safe; secondly, whether they be necessary or useful. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured. But what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation, and must depend on a variety of circumstances with which it may be connected. Let us consult experience, the guide that ought always to be followed whenever it can be found.
The scheme of representation, as a substitute for a meeting of the citizens in person, being at most but very imperfectly known to ancient polity, it is in more modern times only that we are to expect instructive examples. And even here, in order to avoid a research too vague and diffusive, it will be proper to confine ourselves to the few examples which are best known, and which bear the greatest analogy to our particular case. The first to which this character ought to be applied, is the House of Commons in Great Britain. The history of this branch of the English Constitution, anterior to the date of Magna Charta, is too obscure to yield instruction. The very existence of it has been made a question among political antiquaries. The earliest records of subsequent date prove that parliaments were to sit only every year; not that they were to be elected every year. And even these annual sessions were left so much at the discretion of the monarch, that, under various pretexts, very long and dangerous intermissions were often contrived by royal ambition. To remedy this grievance, it was provided by a statute in the reign of Charles II., that the intermissions should not be protracted beyond a period of three years. On the accession of William III., when a revolution took place in the government, the subject was still more seriously resumed, and it was declared to be among the fundamental rights of the people, that parliaments ought to be held frequently. By another statute, which passed a few years later in the same reign, the term “frequently,’ which had alluded to the triennial period settled in the time of Charles II., is reduced to a precise meaning, it being expressly enacted that a new parliament shall be called within three years after the termination of the former. The last change, from three to seven years, is well known to have been introduced pretty early in the present century, under an alarm for the Hanoverian succession. From these facts it appears that the greatest frequency of elections which has been deemed necessary in that kingdom, for binding the representatives to their constituents, does not exceed a triennial return of them. And if we may argue from the degree of liberty retained even under septennial elections, and all the other vicious ingredients in the parliamentary constitution, we cannot doubt that a reduction of the period from seven to three years, with the other necessary reforms, would so far extend the influence of the people over their representatives as to satisfy us that biennial elections, under the federal system, cannot possibly be dangerous to the requisite dependence of the House of Representatives on their constituents.
Elections in Ireland, till of late, were regulated entirely by the discretion of the crown, and were seldom repeated, except on the accession of a new prince, or some other contingent event. The parliament which commenced with George II. was continued throughout his whole reign, a period of about thirty-five years. The only dependence of the representatives on the people consisted in the right of the latter to supply occasional vacancies, by the election of new members, and in the chance of some event which might produce a general new election. The ability also of the Irish parliament to maintain the rights of their constituents, so far as the disposition might exist, was extremely shackled by the control of the crown over the subjects of their deliberation. Of late, these shackles, if I mistake not, have been broken; and octennial parliaments have besides been established. What effect may be produced by this partial reform, must be left to further experience. The example of Ireland, from this view of it, can throw but little light on the subject. As far as we can draw any conclusion from it, it must be that if the people of that country have been able under all these disadvantages to retain any liberty whatever, the advantage of biennial elections would secure to them every degree of liberty, which might depend on a due connection between their representatives and themselves.
Let us bring our inquiries nearer home. The example of these States, when British colonies, claims particular attention, at the same time that it is so well known as to require little to be said on it. The principle of representation, in one branch of the legislature at least, was established in all of them. But the periods of election were different. They varied from one to seven years. Have we any reason to infer, from the spirit and conduct of the representatives of the people, prior to the Revolution, that biennial elections would have been dangerous to the public liberties? The spirit which everywhere displayed itself at the commencement of the struggle, and which vanquished the obstacles to independence, is the best of proofs that a sufficient portion of liberty had been everywhere enjoyed to inspire both a sense of its worth and a zeal for its proper enlargement. This remark holds good, as well with regard to the then colonies whose elections were least frequent, as to those whose elections were most frequent. Virginia was the colony which stood first in resisting the parliamentary usurpations of Great Britain; it was the first also in espousing, by public act, the resolution of independence. In Virginia, nevertheless, if I have not been misinformed, elections under the former government were septennial.
This particular example is brought into view, not as a proof of any peculiar merit, for the priority in those instances was probably accidental; and still less of any advantage in septennial elections, for when compared with a greater frequency they are inadmissible; but merely as a proof, and I conceive it to be a very substantial proof, that the liberties of the people can be in no danger from biennial elections.
The conclusion resulting from these examples will be not a little strengthened by recollecting three circumstances. The first is, that the federal legislature will possess a part only of that supreme legislative authority which is vested completely in the British Parliament; and which, with a few exceptions, was exercised by the colonial assemblies and the Irish legislature. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration; and, conversely, the smaller the power, the more safely may its duration be protracted. In the second place, it has, on another occasion, been shown that the federal legislature will not only be restrained by its dependence on the people, as other legislative bodies are, but that it will be, moreover, watched and controlled by the several collateral legislatures, which other legislative bodies are not. And in the third place, no comparison can be made between the means that will be possessed by the more permanent branches of the federal government for seducing, if they should be disposed to seduce, the House of Representatives from their duty to the people, and the means of influence over the popular branch possessed by the other branches of the government above cited. With less power, therefore, to abuse, the federal representatives can be less tempted on one side, and will be doubly watched on the other.
– PUBLIUS
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 the local affairs connected with them, and can with difficulty be correctly learned 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 regulations 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 cooperation. 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 re-elections, 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
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 ration 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 defence? 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 large 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 cooperation, 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
their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many; fourthly, that defective as the number will be in the first instance, it will be more and more disproportionate, by the increase of the people, and the obstacles which will prevent a correspondent increase of the representatives.In general it may be remarked on this subject, that no political problem is less susceptible of a precise solution than that which relates to the number most convenient for a representative legislature; nor is there any point on which the policy of the several States is more at variance, whether we compare their legislative assemblies directly with each other, or consider the proportions which they respectively bear to the number of their constituents. Passing over the difference between the smallest and largest States, as Delaware, whose most numerous branch consists of twenty-one representatives, and Massachusetts, where it amounts to between three and four hundred, a very considerable difference is observable among States nearly equal in population. The number of representatives in Pennsylvania is not more than one fifth of that in the State last mentioned. New York, whose population is to that of South Carolina as six to five, has little more than one third of the number of representatives. As great a disparity prevails between the States of Georgia and Delaware or Rhode Island. In Pennsylvania, the representatives do not bear a greater proportion to their constituents than of one for every four or five thousand. In Rhode Island, they bear a proportion of at least one for every thousand. And according to the constitution of Georgia, the proportion may be carried to one to every ten electors; and must unavoidably far exceed the proportion in any of the other States.
Another general remark to be made is, that the ratio between the representatives and the people ought not to be the same where the latter are very numerous as where they are very few. Were the representatives in Virginia to be regulated by the standard in Rhode Island, they would, at this time, amount to between four and five hundred; and twenty or thirty years hence, to a thousand. On the other hand, the ratio of Pennsylvania, if applied to the State of Delaware, would reduce the representative assembly of the latter to seven or eight members. Nothing can be more fallacious than to found our political calculations on arithmetical principles. Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed. The truth is, that in all cases a certain number at least seems to be necessary to secure the benefits of free consultation and discussion, and to guard against too easy a combination for improper purposes; as, on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob. It is necessary also to recollect here the observations which were applied to the case of biennial elections. For the same reason that the limited powers of the Congress, and the control of the State legislatures, justify less frequent election than the public safety might otherwise require, the members of Congress need be less numerous than if they possessed the whole power of legislation, and were under no other than the ordinary restraints of other legislative bodies.
With these general ideas in our minds, let us weigh the objections which have been stated against the number of members proposed for the House of Representatives. It is said, in the first place, that so small a number cannot be safely trusted with so much power.
The number of which this branch of the legislature is to consist, at the outset of the government, will be sixty-five. Within three years a census is to be taken, when the number may be augmented to one for every thirty thousand inhabitants; and within every successive period of ten years the census is to be renewed, and augmentations may continue to be made under the above limitation. It will not be thought an extravagant conjecture that the first census will, at the rate of one for every thirty thousand, raise the number of representatives to at least one hundred. Estimating the negroes in the proportion of three fifths, it can scarcely be doubted that the population of the United States will by that time, if it does not already, amount to three millions. At the expiration of twenty-five years, according to the computed rate of increase, the number of representatives will amount to two hundred; and of fifty years, to four hundred. This is a number which, I presume, will put an end to all fears arising from the smallness of the body. I take for granted here what I shall, in answering the fourth objection, hereafter show, that the number of representatives will be augmented from time to time in the manner provided by the Constitution. On a contrary supposition, I should admit the objection to have very great weight indeed. The true question to be decided then is, whether the smallness of the number, as a temporary regulation, be dangerous to the public liberty? Whether sixty-five members for a few years, and a hundred or two hundred for a few more, be a safe depositary for a limited and well-guarded power of legislating for the United States? I must own that I could not give a negative answer to this question, without first obliterating every impression which I have received with regard to the present genius of the people of America, the spirit which actuates the State legislatures, and the principles which are incorporated with the political character of every class of citizens. I am unable to conceive that the people of America, in their present temper, or under any circumstances which can speedily happen, will choose, and every second year repeat the choice of, sixty-five or a hundred men who would be disposed to form and pursue a scheme of tyranny or treachery.
I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents. I am equally unable to conceive that there are at this time, or can be in any short time, in the United States, any sixty-five or a hundred men capable of recommending themselves to the choice of the people at large, who would either desire or dare, within the short space of two years, to betray the solemn trust committed to them. What change of circumstances, time, and a fuller population of our country may produce, requires a prophetic spirit to declare, which makes so part of my pretensions. But judging from the circumstances now before us, and from the probable state of them within a moderate period of time, I must pronounce that the liberties of America cannot be unsafe in the number of hands proposed by the federal Constitution.
From what quarter can the danger proceed? Are we afraid of foreign gold? If foreign gold could so easily corrupt our federal rulers and enable them to ensnare and betray their constituents, how has it happened that we are at this time a free and independent nation? The congress which conducted us through the Revolution was a less numerous body than their successors will be; they were chosen by, nor responsible to, their fellow-citizens at large; though appointed from year to year, and recallable at pleasure, they were generally continued for three years, and, prior to the ratification of the federal articles, for a still longer term. They held their consultations always under the veil of secrecy; they had the sole transaction of our affairs with foreign nations; through the whole course of the war they had the fate of their country more in their hands than it is to be hoped will ever be the case with our future representatives; and from the greatness of the prize at stake, and the eagerness of the party which lost it, it may well be supposed that the use of other means than force would not have been scrupled. Yet we know by happy experience that the public trust was not betrayed; nor has the purity of our public councils in this particular ever suffered, even from the whispers of calumny.
Is the danger apprehended from the other branches of the federal government? But where are the means to be found by the President, or the Senate, or both? Their emoluments of office, it is to be presumed, will not, and without a previous corruption of the House of Representatives cannot, more than suffice for very different purposes; their private fortunes, as they must all be American citizens, cannot possibly be sources of danger. The only means, then, which they can possess, will be in the dispensation of appointments. Is it here that suspicion rests her charge? Sometimes we are told that this fund of corruption is to be exhausted by the President in subduing the virtue of the Senate. Now, the fidelity of the other House is to be the victim. The improbability of such a mercenary and perfidious combination of the several members of government, standing on as different foundations as republican principles will well admit, and at the same time accountable to the society over which they are placed, ought alone to quiet this apprehension. But, fortunately, the Constitution has provided a still further safeguard. The members of the Congress are rendered ineligible to any civil offices that may be created, or of which the emoluments may be increased, during the term of their election. No offices therefore can be dealt out to the existing members but such as may become vacant by ordinary casualties; and to suppose that these would be sufficient to purchase the guardians of the people, selected by the people themselves, is to renounce every rule by which events ought to be calculated, and to substitute an indiscriminate and unbounded jealousy, with which all reasoning must be vain. The sincere friends of liberty, who give themselves up to the extravagancies of this passion, are not aware of the injury they do their own cause. As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem in confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.
– PUBLIUS
It is a sound and important principle that the representative ought to be acquainted with the interests and circumstances of his constituents. But this principle can extend no further than to those circumstances and interests to which the authority and care of the representative relate. An ignorance of a variety of minute and particular objects, which do not lie within the compass of legislation, is consistent with every attribute necessary to a due performance of the legislative trust. In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.
What are to be the objects of federal legislation? Those which are of most importance, and which seem most to require local knowledge, are commerce, taxation, and the militia.
A proper regulation of commerce requires much information, as has been elsewhere remarked; but as far as this information relates to the laws and local situation of each individual State, a very few representatives would be very sufficient vehicles of it to the federal councils.
Taxation will consist, in a great measure, of duties which will be involved in the regulation of commerce. So far the preceding remark is applicable to this object. As far as it may consist of internal collections, a more diffusive knowledge of the circumstances of the State may be necessary. But will not this also be possessed in sufficient degree by a very few intelligent men, diffusively elected within the State? Divide the largest State into ten or twelve districts, and it will be found that there will be no peculiar local interests in either, which will not be within the knowledge of the representative of the district. Besides this source of information, the laws of the State, framed by representatives from every part of it, will be almost of themselves a sufficient guide. In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act. A skillful individual in his closet, with all the local codes before him, might compile a law on some subjects of taxation for the whole Union, without any aid from oral information, and it may be expected that whenever internal taxes may be necessary, and particularly in cases requiring uniformity throughout the States, the more simple objects will be preferred. To be fully sensible of the facility which will be given to this branch of federal legislation by the assistance of the State codes, we need only suppose for a moment that this or any other State were divided into a number of parts, each having and exercising within itself a power of local legislation. Is it not evident that a degree of local information and preparatory labor would be found in the several volumes of their proceedings, which would very much shorten the labors of the general legislature, and render a much smaller number of members sufficient for it?
The federal councils will derive great advantage from another circumstance. The representatives of each State will not only bring with them a considerable knowledge of its laws, and a local knowledge of their respective districts, but will probably in all cases have been members, and may even at the very time be members, of the State legislature, where all the local information and interests of the State are assembled, and from whence they may easily be conveyed by a very few hands into the legislature of the United States.
The observations made on the subject of taxation apply with greater force to the case of the militia. For however different the rules of discipline may be in different States, they are the same throughout each particular State; and depend on circumstances which can differ but little in different parts of the same State.
The attentive reader will discern that the reasoning here used, to prove the sufficiency of a moderate number of representatives, does not in any respect contradict what was urged on another occasion with regard to the extensive information which the representatives ought to possess, and the time that might be necessary for acquiring it. This information, so far as it may relate to local objects, is rendered necessary and difficult, not by a difference of laws and local circumstances within a single State, but of those among different States. Taking each State by itself, its laws are the same, and its interests but little diversified. A few men, therefore, will possess all the knowledge requisite for a proper representation of them. Were the interests and affairs of each individual State perfectly simple and uniform, a knowledge of them in one part would involve a knowledge of them in every other, and the whole State might be competently represented by a single member taken from any part of it. On a comparison of the different States together, we find a great dissimilarity in their laws, and in many other circumstances connected with the objects of federal legislation, with all of which the federal representatives ought to have some acquaintance. Whilst a few representatives, therefore, from each State, may bring with them a due knowledge of their own State, every representative will have much information to acquire concerning all the other States. The changes of time, as was formerly remarked, on the comparative situation of the different States, will have an assimilating effect. The effect of time on the internal affairs of the States, taken singly, will be just the contrary. At present some of the States are little more than a society of husbandmen. Few of them have made much progress in those branches of industry which give a variety and complexity to the affairs of a nation. These, however, will in all of them be the fruits of a more advanced population; and will require, on the part of each State, a fuller representation.
The foresight of the convention has accordingly taken care that the progress of population may be accompanied with a proper increase of the representative branch of the government. The experience of Great Britain, which presents to mankind so many political lessons, both of the monitory and exemplary kind, and which has been frequently consulted in the course of these inquiries, corroborates the result of the reflections which we have just made.
The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight million. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. *032 It cannot be supposed that the half thus elected, and who do not even reside among the people at large, can add anything either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. On the contrary, it is notorious, that they are more frequently the representatives and instruments of the executive magistrate, than the guardians and advocates of the popular rights. They might therefore, with great propriety, be considered as something more than a mere deduction from the real representatives of the nation. We will, however, consider them in this light alone, and will not extend the deduction to a considerable number of others, who do not reside among their constituents, are very faintly connected with them, and have very little particular knowledge of their affairs. With all these concessions, two hundred and seventy-nine persons only will be the depositary of the safety, interest, and happiness of eight millions- that is to say, there will be one representative only to maintain the rights and explain the situation of twenty-eight thousand six hundred and seventy constituents, in an assembly exposed to the whole force of executive influence, and extending its authority to every object of legislation within a nation whose affairs are in the highest degree diversified and complicated. Yet it is very certain, not only that a valuable portion of freedom has been preserved under all these circumstances, but that the defects in the British code are chargeable, in a very small proportion, on the ignorance of the legislature concerning the circumstances of the people. Allowing to this case the weight which is due to it, and comparing it with that of the House of Representatives as above explained, it seems to give the fullest assurance, that a representative for every thirty thousand inhabitants will render the latter both a safe and competent guardian of the interests which will be confided to it.
– PUBLIUS
The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.
Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people.
If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.
In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements.
In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life.
But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment. In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people.
All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.
I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.
It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America- a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.
Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and
infallibly betray the trust committed to them?
Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was, in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined.
Is it supported by reason? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the bribes of the rich.
Is the consequence from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens?
Is the doctrine warranted by facts? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money.
Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many.
But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress.
Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one country, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. This is the case in all the other counties of the State.
Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people?
But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty.
– PUBLIUS
1. Those who urge the objection seem not to have recollected that the federal Constitution will not suffer by a comparison with the State constitutions, in the security provided for a gradual augmentation of the number of representatives. The number which is to prevail in the first instance is declared to be temporary. Its duration is limited to the short term of three years. Within every successive term of ten years a census of inhabitants is to be repeated. The unequivocal objects of these regulations are, first, to readjust, from time to time, the apportionment of representatives to the number of inhabitants, under the single exception that each State shall have one representative at least; secondly, to augment the number of representatives at the same periods, under the sole limitation that the whole number shall not exceed one for every thirty thousand inhabitants. If we review the constitutions of the several States, we shall find that some of them contain no determinate regulations on this subject, that others correspond pretty much on this point with the federal Constitution, and that the most effectual security in any of them is resolvable into a mere directory provision.
2. As far as experience has taken place on this subject, a gradual increase of representatives under the State constitutions has at least kept pace with that of the constituents, and it appears that the former have been as ready to concur in such measures as the latter have been to call for them.
3. There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States: in the former, consequently, the larger States will have most weight; in the latter, the advantage will be in favor of the smaller States. From this circumstance it may with certainty be inferred that the larger States will be strenuous advocates for increasing the number and weight of that part of the legislature in which their influence predominates. And it so happens that four only of the largest will have a majority of the whole votes in the House of Representatives. Should the representatives or people, therefore, of the smaller States oppose at any time a reasonable addition of members, a coalition of a very few States will be sufficient to overrule the opposition; a coalition which, notwithstanding the rivalship and local prejudices which might prevent it on ordinary occasions, would not fail to take place, when not merely prompted by common interest, but justified by equity and the principles of the Constitution.
It may be alleged, perhaps, that the Senate would be prompted by like motives to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions in the jealous friends of a numerous representation. Fortunately it is among the difficulties which, existing only in appearance, vanish on a close and accurate inspection. The following reflections will, if I mistake not, be admitted to be conclusive and satisfactory on this point.
Notwithstanding the equal authority which will subsist between the two houses on all legislative subjects, except the originating of money bills, it cannot be doubted that the House, composed of the greater number of members, when supported by the more powerful States, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses.
This advantage must be increased by the consciousness, felt by the same side, of being supported in its demands by right, by reason, and by the Constitution; and the consciousness, on the opposite side, of contending against the force of all these solemn considerations.
It is farther to be considered, that in the gradation between the smallest and largest States, there are several, which, though most likely in general to arrange themselves among the former, are too little removed in extent and population from the latter, to second an opposition to their just and legitimate pretensions. Hence it is by no means certain that a majority of votes, even in the Senate, would be unfriendly to proper augmentations in the number of representatives.
It will not be looking too far to add, that the senators from all the new States may be gained over to the just views of the House of Representatives, by an expedient too obvious to be overlooked. As these States will, for a great length of time, advance in population with peculiar rapidity, they will be interested in frequent reapportionments of the representatives to the number of inhabitants. The large States, therefore, who will prevail in the House of Representatives, will have nothing to do but to make reapportionments and augmentations mutually conditions of each other; and the senators from all the most growing States will be bound to contend for the latter, by the interest which their States will feel in the former.
These considerations seem to afford ample security on this subject, and ought alone to satisfy all the doubts and fears which have been indulged with regard to it. Admitting, however, that they should all be insufficient to subdue the unjust policy of the smaller States, or their predominant influence in the councils of the Senate, a constitutional and infallible resource still remains with the larger States, by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse- that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal Senate or President, will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles.
In this review of the Constitution of the House of Representatives, I have passed over the circumstances of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of representatives, and a disregard of which would probably have been as rich a theme of declamation against the Constitution as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the federal service a large number of such characters as the people will probably elect. One observation, however, I must be permitted to add on this subject as claiming, in my judgment, a very serious attention. It is, that in all legislative assemblies the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendancy of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities.
Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the people assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few.
Experience will forever admonish them that, on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic. The machine will be enlarged, but the fewer, and often the more secret, will be the springs by which its motions are directed.
As connected with the objection against the number of representatives, may properly be here noticed, that which has been suggested against the number made competent for legislative business. It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted form such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.
– PUBLIUS
I am greatly mistaken, notwithstanding, if there be any article in the whole plan more completely defensible than this. Its propriety rests upon the evidence of this plain proposition, that every government ought to contain in itself the means of its own preservation. Every just reasoner will, at first sight, approve an adherence to this rule, in the work of the convention: and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. Even in this case, though he may acquiesce in the necessity, yet he will not cease to regard and to regret a departure from so fundamental a principle, as a portion of imperfection in the system which may prove the seed of future weakness, and perhaps anarchy.
It will not be alleged, that an election law could have been framed and inserted in the Constitution, which would have been always applicable to every probable change in the situation of the country; and it will therefore not be denied, that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded, that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter and ultimately in the former. The last mode has, with reason, been preferred by the convention. They have submitted the regulation of elections for the federal government, in the first instance, to the local administrations; which, in ordinary cases, and when no improper views prevail, may be both more convenient and more satisfactory; but they have reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety.
Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it, by neglecting to provide for the choice of persons to administer its affairs. It is to little purpose to say, that a neglect or omission of this kind would not be likely to take place. The constitutional possibility of the thing, without an equivalent for the risk, is an unanswerable objection. Nor has any satisfactory reason been yet assigned for incurring that risk. The extravagant surmises of a distempered jealousy can never be dignified with that character. If we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government. And as it is more consonant to the rules of a just theory, to trust the Union with the care of its own existence, than to transfer that care to any other hands, if abuses of power are to be hazarded on the one side or on the other, it is more rational to hazard them where the power would naturally be placed, than where the power would unnaturally be placed.
Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular States, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the State governments? The violation of principle, in this case, would have required no comment; and, to an unbiased observer, it will not be less apparent in the project of subjecting the existence of the national government, in a similar respect, to the pleasure of the State governments. An impartial view of the matter cannot fail to result in a conviction, that each, as far as possible, ought to depend on itself for its own preservation.
As an objection to this position, it may be remarked that the constitution of the national Senate would involve, in its full extent, the danger which it is suggested might flow from an exclusive power in the State legislatures to regulate the federal elections. It may be alleged, that by declining the appointment of senators, they might at any time give a fatal blow to the Union; and from this it may be inferred, that as its existence would be thus rendered dependent upon them in so essential a point, there can be no objection to intrusting them with it in the particular case under consideration. The interest of each State, it may be added, to maintain its representation in the national councils, would be a complete security against an abuse of the trust. This argument, though specious, will not, upon examination, be found solid. It is certainly true that the State legislatures, by forbearing the appointment of senators, may destroy the national government.
But it will not follow that, because they have the power to do this in one instance, they ought to have it in every other. There are cases in which the pernicious tendency of such a power may be far more decisive, without any motive equally cogent with that which must have regulated the conduct of the convention in respect to the formation of the Senate, to recommend their admission into the system.
So far as that construction may expose the Union to the possibility of injury from the State legislatures, it is an evil; but it is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done, it would doubtless have been interpreted into an entire dereliction of the federal principle; and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision.
But however wise it may have been to have submitted in this instance to an inconvenience, for the attainment of a necessary advantage or a greater good, no inference can be drawn from thence to favor an accumulation of the evil, where no necessity urges, nor any greater good invites.
It may be easily discerned also that the national government would run a much greater risk from a power in the State legislatures over the elections of its House of Representatives, than from their power of appointing the members of its Senate. The senators are to be chosen for the period of six years; there is to be a rotation, by which the seats of a third part of them are to be vacated and replenished every two years; and no State is to be entitled to more than two senators; a quorum of the body is to consist of sixteen members. The joint result of these circumstances would be, that a temporary combination of a few States to intermit the appointment of senators, could neither annul the existence nor impair the activity of the body; and it is not from a general and permanent combination of the States that we can have any thing to fear. The first might proceed from sinister designs in the leading members of a few of the State legislatures; the last would suppose a fixed and rooted disaffection in the great body of the people, which will either never exist at all, or will, in all probability, proceed from an experience of the inaptitude of the general government to the advancement of their happiness- in which event no good citizen could desire its continuance.
But with regard to the federal House of Representatives, there is intended to be a general election of members once in two years. If the State legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election.
I shall not deny, that there is a degree of weight in the observation, that the interests of each State, to be represented in the federal councils, will be a security against the abuse of a power over its elections in the hands of the State legislatures. But the security will not be considered as complete, by those who attend to the force of an obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices. The people of America may be warmly attached to the government of the Union, at times when the particular rulers of particular States, stimulated by the natural rivalship of power, and by the hopes of personal aggrandizement, and supported by a strong faction in each of those States, may be in a very opposite temper. This diversity of sentiment between a majority of the people, and the individuals who have the greatest credit in their councils, is exemplified in some of the States at the present moment, on the present question. The scheme of separate confederacies, which will always multiply the chances of ambition, will be a never failing bait to all such influential characters in the State administrations as are capable of preferring their own emolument and advancement to the public weal. With so effectual a weapon in their hands as the exclusive power of regulating elections for the national government, a combination of a few such men, in a few of the most considerable States, where the temptation will always be the strongest, might accomplish the destruction of the Union, by seizing the opportunity of some casual dissatisfaction among the people (and which perhaps they may themselves have excited), to discontinue the choice of members for the federal House of Representatives. It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them. Its preservation therefore ought in no case that can be avoided, to be committed to the guardianship of any but those whose situation will uniformly beget an immediate interest in the faithful and vigilant performance of the trust.
– PUBLIUS
The improbability of the attempt may be satisfactorily inferred from this single reflection, that it could never be made without causing an immediate revolt of the great body of the people, headed and directed by the State governments. It is not difficult to conceive that this characteristic right of freedom may, in certain turbulent and factious seasons, be violated, in respect to a particular class of citizens, by a victorious and overbearing majority; but that so fundamental a privilege, in a country so situated and enlightened, should be invaded to the prejudice of the great mass of the people, by the deliberate policy of the government, without occasioning a popular revolution, is altogether inconceivable and incredible. In addition to this general reflection, there are considerations of a more precise nature, which forbid all apprehension on the subject. The dissimilarity in the ingredients which will compose the national government, and still more in the manner in which they will be brought into action in its various branches, must form a powerful obstacle to a concert of views in any partial scheme of elections.
There is sufficient diversity in the state of property, in the genius, manners, and habits of the people of the different parts of the Union, to occasion a material diversity of disposition in their representatives towards the different ranks and conditions in society. And though an intimate intercourse under the same government will promote a gradual assimilation in some of these respects, yet there are causes, as well physical as moral, which may, in a greater or less degree, permanently nourish different propensities and inclinations in this respect. But the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors. As to the Senate, it is impossible that any regulation of “time and manner,” which is all that is proposed to be submitted to the national government in respect to that body, can affect the spirit which will direct the choice of its members. The collective sense of the State legislatures can never be influenced by extraneous circumstances of that sort; a consideration which alone ought to satisfy us that the discrimination apprehended would never be attempted. For what inducement could the Senate have to concur in a preference in which itself would not be included? Or to what purpose would it be established, in reference to one branch of the legislature, if it could not be extended to the other. The composition of the one would in this case counteract that of the other. And we can never suppose that it would embrace the appointments to the Senate, unless we can at the same time suppose the voluntary cooperation of the State legislatures. If we make the latter supposition, it then becomes immaterial where the power in question is placed- whether in their hands or in those of the Union.
But what is to be the object of this capricious partiality in the national councils? Is it to be exercised in a discrimination between the different departments of industry, or between the different kinds of property, or between the different degrees of property? Will it lean in favor of the landed interest, or the moneyed interest, or the mercantile interest, or the manufacturing interest? Or, to speak in the fashionable language of the adversaries to the Constitution, will it court the elevation of “the wealthy and the well-born,” to the exclusion and debasement of all the rest of the society.
If this partiality is to be exerted in favor of those who are concerned in any particular description of industry or property. I presume it will readily be admitted, that the competition for it will lie between landed men and merchants. And I scruple not to affirm, that it is infinitely less likely that either of them should gain an ascendant in the national councils, than that the one or the other of them should predominate in all the local councils. The inference will be, that a conduct tending to give an undue preference to either is much less to be dreaded from the former than from the latter.
The several States are in various degrees addicted to agriculture and commerce. In most, if not all of them, agriculture is predominant. In a few of them, however, commerce nearly divides its empire, and in most of them has a considerable share of influence. In proportion as either prevails, it will be conveyed into the national representation; and for the very reason, that this will be an emanation from a greater variety of interests, and in much more various proportions, than are to be found in any single State, it will be much less apt to espouse either of them with a decided partiality, than the representation of any single State.
In a country consisting chiefly of the cultivators of land, where the rules of an equal representation obtain, the landed interest must, upon the whole, preponderate in the government. As long as this interest prevails in most of the State legislatures, so long it must maintain a correspondent superiority in the national Senate, which will generally be a faithful copy of the majorities of those assemblies. It cannot therefore be presumed, that a sacrifice of the landed to the mercantile class will ever be a favorite object of this branch of the federal legislature. In applying thus particularly to the Senate a general observation suggested by the situation of the country, I am governed by the consideration, that the credulous votaries of State power cannot, upon their own principles, suspect, that the State legislatures would be warped from their duty by any external influence. But in reality the same situation must have the same effect, in the primitive composition at least of the federal House of Representatives: an improper bias towards the mercantile class is as little to be expected from this quarter as from the other.
In order, perhaps, to give countenance to the objection at any rate, it may be asked, is there not danger of an opposite bias in the national government, which may dispose it to endeavor to secure a monopoly of the federal administration to the landed class? As there is little likelihood that the supposition of such a bias will have any terrors for those who would be immediately injured by it, a labored answer to this question will be dispensed with. It will be sufficient to remark, first, that for the reasons elsewhere assigned, it is less likely that any decided partiality should prevail in the councils of the Union than in those of any of its members. Secondly, that there would be no temptation to violate the Constitution in favor of the landed class, because that class would, in the natural course of things, enjoy as great a preponderancy as itself could desire. And thirdly, that men accustomed to investigate the sources of public prosperity upon a large scale, must be too well convinced of the utility of commerce, to be inclined to inflict upon it so deep a wound as would result from the entire exclusion of those who would best understand its interest from a share in the management of them. The importance of commerce, in the view of revenue alone, must effectually guard it against the enmity of a body which would be continually importuned in its favor, by the urgent calls of public necessity.
I rather consult brevity in discussing the probability of a preference founded upon a discrimination between the different kinds of industry and property, because, as far as I understand the meaning of the objectors, they contemplate a discrimination of another kind. They appear to have in view, as the objects of the preference with which they endeavor to alarm us, those whom they designate by the description of “the wealthy and the well-born.” These, it seems, are to be exalted to an odious preeminence over the rest of their fellow-citizens. At one time, however, their elevation is to be a necessary consequence of the smallness of the representative body; at another time it is to be effected by depriving the people at large of the opportunity of exercising their right of suffrage in the choice of that body.
But upon what principle is the discrimination of the places of election to be made, in order to answer the purpose of the meditated preference? Are “the wealthy and the well-born,” as they are called, confined to particular spots in the several States? Have they, by some miraculous instinct or foresight, set apart in each of them a common place of residence? Are they only to be met with in the towns or cities? Or are they, on the contrary, scattered over the face of the country as avarice or chance may have happened to cast their own lot or that of their predecessors? of the latter is the case, (as every intelligent man knows it to be,) *034 is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptionable on every other account? The truth is, that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.
Let it, however, be admitted, for argument sake, that the expedient suggested might be successful; and let it at the same time be equally taken for granted that all the scruples which a sense of duty or an apprehension of the danger of the experiment might inspire, were overcome in the breasts of the national rulers, still I imagine it will hardly be pretended that they could ever hope to carry such an enterprise into execution without the aid of a military force sufficient to subdue the resistance of the great body of the people.
The improbability of the existence of a force equal to that object has been discussed and demonstrated in different parts of these papers; but that the futility of the objection under consideration may appear in the strongest light, it shall be conceded for a moment that such a force might exist, and the national government shall be supposed to be in the actual possession of it. What will be the conclusion? With a disposition to invade the essential rights of the community, and with the means of gratifying that disposition, is it presumable that the persons who were actuated by it would amuse themselves in the ridiculous task of fabricating election laws for securing a preference to a favorite class of men? Would they not be likely to prefer a conduct better adapted to their own immediate aggrandizement? Would they not rather boldly resolve to perpetuate themselves in office by one decisive act of usurpation, than to trust to precarious expedients which, in spite of all the precautions that might accompany them, might terminate in the dismission, disgrace, and ruin of their authors? Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective States to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the
people?
– PUBLIUS
If it should be said that defects in the State constitutions furnish no apology for those which are to be found in the plan proposed, I answer, that as the former have never been thought chargeable with inattention to the security of liberty, where the imputations thrown on the latter can be shown to be applicable to them also, the presumption is that they are rather the cavilling refinements of a predetermined opposition, than the well-founded inferences of a candid research after truth. To those who are disposed to consider, as innocent omissions in the State constitutions, what they regard as unpardonable blemishes in the plan of the convention, nothing can be said; or at most, they can only be asked to assign some substantial reason why the representatives of the people in a single State should be more impregnable to the lust of power, or other sinister motives, than the representatives of the people of the United States? If they cannot do this, they ought at least to prove to us that it is easier to subvert the liberties of three millions of people, with the advantage of local governments to head their opposition, than of two hundred thousand people who are destitute of that advantage. And in relation to the point immediately under consideration, they ought to convince us that it is less probable that a predominant faction in a single State should, in order to maintain its superiority, incline to a preference of a particular class of electors, than that a similar spirit should take possession of the representatives of thirteen States, spread over a vast region, and in several respects distinguishable from each other by a diversity of local circumstances, prejudices, and interests.
Hitherto my observations have only aimed at a vindication of the provision in question, on the ground of theoretic propriety, on that of the danger of placing the power elsewhere, and on that of the safety of placing it in the manner proposed. But there remains to be mentioned a positive advantage which will result from this disposition, and which could not as well have been obtained from any other: I allude to the circumstance of uniformity in the time of elections for the federal House of Representatives. It is more than possible that this uniformity may be found by experience to be of great importance to the public welfare, both as a security against the perpetuation of the same spirit in the body, and as a cure for the diseases of faction. If each State may choose its own time of election, it is possible there may be at least as many different periods as there are months in the year. The times of election in the several States, as they are now established for local purposes, vary between extremes as wide as March and November. The consequence of this diversity would be that there could never happen a total dissolution of renovation of the body at one time. If an improper spirit of any kind should happen to prevail in it, that spirit would be apt to infuse itself into the new members, as they come forward in succession. The mass would be likely to remain nearly the same, assimilating constantly to itself its gradual accretions. There is a contagion in example which few men have sufficient force of mind to resist. I am inclined to think that treble the duration in office, with the condition of a total dissolution of the body at the same time, might be less formidable to liberty than one third of that duration subject to gradual and successive alterations.
Uniformity in the time of elections seems not less requisite for executing the idea of a regular rotation in the Senate, and for conveniently assembling the legislature at a stated period in each year.
It may be asked, Why, then, could not a time have been fixed in the Constitution? As the most zealous adversaries of the plan of the convention in this State are, in general, not less zealous admirers of the constitution of the State, the question may be retorted, and it may be asked, Why was not a time for the like purpose fixed in the constitution of this State? No better answer can be given than that it was a matter which might safely be entrusted to legislative discretion; and that if a time had been appointed, it might, upon experiment, have been found less convenient than some other time. The same answer may be given to the question put on the other side. And it may be added that the supposed danger of a gradual change being merely speculative, it would have been hardly advisable upon that speculation to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government at the same epochs.
– PUBLIUS
I. The qualifications of senators;
II. The appointment of them by the State legislatures;
III. The equality of representation in the Senate;
IV. The number of senators, and the term for which they are to be elected;
V. The powers vested in the Senate.I. The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. A senator must be thirty years of age at least; as a representative must be twenty-five. And the former must have been a citizen nine years; as seven years are required for the latter. The propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and stability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages; and which, participating immediately in transactions with foreign nations, ought to be exercised by none who are not thoroughly weaned from the prepossessions and habits incident to foreign birth and education. The term of nine years appears to be a prudent mediocrity between a total exclusion of adopted citizens, whose merits and talents may claim a share in the public confidence, and an indiscriminate and hasty admission of them, which might create a channel for foreign influence on the national councils.
II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.
III. The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. If indeed it be right, that among a people thoroughly incorporated into one nation, every district ought to have a proportional share in the government, and that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an equal share in the common councils, it does not appear to be without some reason that in a compound republic, partaking both of the national and federal character, the government ought to be founded on a mixture of the principles of proportional and equal representation. But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” A common government, with powers equal to its objects, is called for by the voice, and still more loudly by the political situation, of America. A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one
simple republic.
Another advantage accruing from this ingredient in the Constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defence which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the facility and excess of lawmaking seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation of perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.
Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?
A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.
Fourthly. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.
To trace the mischievous effects of a mutable government, would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.
In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretion of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained form the more systematic policy of their wiser neighbors.
But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.
The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.
In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.
But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity; and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.
– PUBLIUS
Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. it can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust, that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community. The half-yearly representatives of Rhode Island would probably have been little affected in their deliberations on the iniquitous measures of that State, by arguments drawn from the light in which such measures would be viewed by foreign nations, or even by the sister States; whilst it can scarcely be doubted that if the concurrence of a select and stable body had been necessary, a regard to national character alone would have prevented the calamities under which that misguided people is now laboring.
I add, as a sixth defect, the want, in some important cases, of a due responsibility in the government to the people, arising from that frequency of elections which in other cases produces this responsibility. This remark will, perhaps, appear not only new, but paradoxical. It must nevertheless be acknowledged, when explained, to be as undeniable as it is important.
Responsibility, in order to be reasonable, must be limited to objects within the power of the responsible party, and in order to be effectual, must relate to operations of that power, of which a ready and proper judgment can be formed by the constituents. The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half dozen years. Nor is it possible for the people to estimate the share of influence which their annual assemblies may respectively have on events resulting form the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.
The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.
Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the representatives of the people. To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defence to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.
It may be suggested, that a people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the people of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them. It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage are, in fact, the only states to whom that character can be applied. In each of the two first there was a senate for life. The constitution of the senate in the last is less known. Circumstantial evidence makes it probable that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller council, drawn out of the senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius, of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty. I am not unaware of the circumstances which distinguish the American from other popular governments, as well ancient as modern; and which render extreme circumspection necessary, in reasoning from one case to the other. But after allowing due weight to this consideration, it may still be maintained, that there are many points of similitude which render these examples not unworthy of our attention. Many of the defects, as we have seen, which can only be supplied by a senatorial institution, are common to a numerous assembly frequently elected by the people, and to the people themselves. There are others peculiar to the former, which require the control of such an institution. The people can never wilfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.
The difference most relied on, between the American and other republics, consists in the principle of representation; which is the pivot on which the former move, and which is supposed to have been unknown to the latter, or at least to the ancient part of them. The use which has been made of this difference, in reasonings contained in former papers, will have shown that I am disposed neither to deny its existence nor to undervalue its importance. I feel the less restraint, therefore, in observing, that the position concerning the ignorance of the ancient governments on the subject of representation, is by no means precisely true in the latitude commonly given to it. Without entering into a disquisition which here would be misplaced, I will refer to a few known facts, in support of what I advance. In the most pure democracies of Greece, many of the executive functions were performed, not by the people themselves, but by officers elected by the people, and representing the people in their executive capacity.
Prior to the reform of Solon, Athens was governed by nine Archons, annually elected by the people at large. The degree of power delegated to them seems to be left in great obscurity. Subsequent to that period, we find an assembly, first of four, and afterwards of six hundred members, annually elected by the people; and partially representing them in their legislative capacity, since they were not only associated with the people in the function of making laws, but had the exclusive right of originating legislative propositions to the people. The senate of Carthage, also, whatever might be its power, or the duration of its appointment, appears to have been elective by the suffrages of the people. Similar instances might be traced in most, if not all the popular governments of antiquity.
Lastly, in sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually elected by the whole body of the people, and considered as the representatives of the people, almost in their plenipotentiary capacity. The Cosmi of Crete were also annually elected by the people, and have been considered by some authors as an institution analogous to those of Sparta and Rome, with this difference only, that in the election of that representative body the right of suffrage was communicated to a part only of the people.
From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American government, lies in the total exclusion of the people, in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States. But to insure to this advantage its full effect, we must be careful not to separate it from the other advantage, of an extensive territory. For it cannot be believed, that any form of representative government could have succeeded within the narrow limits occupied by the democracies of Greece.
In answer to all these arguments, suggested by reason, illustrated by examples, and enforced by our own experience, the jealous adversary of the Constitution will probably content himself with repeating, that a senate appointed not immediately by the people, and for the term of six years, must gradually acquire a dangerous preeminence in the government, and finally transform it into a tyrannical aristocracy. To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States. But a more particular reply may be given.
Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that co-equal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of lawless ambition, through all these obstructions?
If reason condemns the suspicion, the same sentence is pronounced by experience. The constitution of Maryland furnishes the most apposite example. The Senate of that State is elected, as the federal Senate will be, indirectly by the people, and for a term less by one year only than the federal Senate. It is distinguished, also, by the remarkable prerogative of filling up its own vacancies within the term of its appointment, and, at the same time, is not under the control of any such rotation as is provided for the federal Senate. There are some other lesser distinctions, which would expose the former to colorable objections, that do not lie against the latter. If the federal Senate, therefore, really contained the danger which has been so loudly proclaimed, some symptoms at least of a like danger ought by this time to have been betrayed by the Senate of Maryland, but no such symptoms have appeared. On the contrary, the jealousies at first entertained by men of the same description with those who view with terror the correspondent part of the federal Constitution, have been gradually extinguished by the progress of the experiment; and the Maryland constitution is daily deriving, from the salutary operation of this part of it, a reputation in which it will probably not be rivalled by that of any State in the Union.
But if any thing could silence the jealousies on this subject, it ought to be the British example. The Senate there, instead of being elected for a term of six years, and of being unconfined to particular families or fortunes, is an hereditary assembly of opulent nobles. The House of Representatives, instead of being elected for two years, and by the whole body of the people, is elected for seven years, and, in very great proportion, by a very small proportion of the people. Here, unquestionably, ought to be seen in full display the aristocratic usurpations and tyranny which are at some future period to be exemplified in the United States. Unfortunately, however, for the anti-federal argument, the British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.
As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion.
Besides the conclusive evidence resulting from this assemblage of facts, that the federal Senate will never be able to transform itself, by gradual usurpations, into an independent and aristocratic body, we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves.
– PUBLIUS
As the select assemblies for choosing the President, as well as the State legislatures who appoint the senators, will in general be composed of the most enlightened and respectable citizens, there is reasons to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. The Constitution manifests very particular attention to this object. By excluding men under thirty-five from the first office, and those under thirty from the second, it confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, some times mislead as well as dazzle.
If the observation be well founded, that wise kings will always be served by able ministers, it is fair to argue, that as an assembly of select electors possess, in a greater degree than kings, the means of extensive and accurate information relative to men and characters, so will their appointments bear at least equal marks of discretion and discernment. The inference which naturally results from these considerations is this, that the President and senators so chosen will always be of the number of those who best understand our national interests whether considered in relation to the several States or to foreign nations, who are best able to promote those interests, and whose reputation for integrity inspires and merits confidence. With such men the power of making treaties may be safely lodged.
Although the absolute necessity of system, in the conduct of any business, is universally known and acknowledged, yet the high importance of it in national affairs has not yet become sufficiently impressed on the public mind. They who wish to commit the power under consideration to a popular assembly, composed of members constantly coming and going in quick succession, seem not to recollect that such a body must necessarily be inadequate to the attainment of those great objects, which require to be steadily contemplated in all their relations and circumstances, and which can only be approached and achieved by measures which not only talents, but also exact information, and often much time, are necessary to concert and to execute. It was wise, therefore, in the convention to provide, not only that the power of making treaties should be committed to able and honest men, but also that they should continue in place a sufficient time to become perfectly acquainted with our national concerns, and to form and introduce a system for the management of them. The duration prescribed is such as will give them an opportunity of greatly extending their political information, and of rendering their accumulating experience more and more beneficial to their country. Nor has the convention discovered less prudence in providing for the frequent elections of senators in such a way as to obviate the inconvenience of periodically transferring those great affairs entirely to new men; for by leaving a considerable residue of the old ones in place, uniformity and order, as well as a constant succession of official information, will be preserved.
There are a few who will not admit that the affairs of trade and navigation should be regulated by a system cautiously formed and steadily pursued; and that both our treaties and our laws should correspond with and be made to promote it. It is of much consequence that this correspondence and conformity be carefully maintained; and they who assent to the truth of this position will see and confess that it is well provided for by making concurrence of the Senate necessary both to treaties and to laws.
It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate despatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives; and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may suggest.
They who have turned their attention to the affairs of men, must have perceived that there are tides in them; tides very irregular in their duration, strength, and direction, and seldom found to run twice exactly in the same manner or measure. To discern and to profit by these tides in national affairs is the business of those who preside over them; and they who have had much experience on this head inform us, that there frequently are occasions when days, nay, even when hours, are precious. The loss of a battle, the death of a prince, the removal of a minister, or other circumstances intervening to change the present posture and aspect of affairs, may turn the most favorable tide into a course opposite to our wishes. As in the field, so in the cabinet, there are moments to be seized as they pass, and they who preside in either should be left in capacity to improve them. So often and so essentially have we heretofore suffered from the want of secrecy and despatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects.
Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them. Thus we see that the Constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigations, on the one hand, and from secrecy and despatch on the other.
But to this plan, as to most others that have ever appeared, objections are contrived and urged. Some are displeased with it, not on account of any errors or defects in it, but because, as the treaties, when made, are to have the force of laws, they should be made only by men invested with legislative authority. These gentlemen seem not to consider that the judgments of our courts, and the commissions constitutionally given by our governor, are as valid and as binding on all persons whom they concern, as the laws passed by our legislature. All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; and therefore, whatever name be given to the power of making treaties, or however obligatory they may be when made, certain it is, that the people may, with much propriety, commit the power to a distinct body from the legislature, the executive, or the judicial. It surely does not follow, that because they have given the power of making laws to the legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected. Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme laws of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it. They who make laws may, without doubt, amend or repeal them; and it will not be disputed that they who make treaties may alter or cancel them; but still let us not forget that treaties are made, not by only one of the contracting parties, but by both; and consequently, that as the consent of both was essential to their formation at first, so must it ever afterwards be to alter or cancel them. The proposed Constitution, therefore, has not in the least extended the obligation of treaties. They are just as binding, and just as far beyond the lawful reach of legislative acts now, as they will be at any future period, or under any form of government.
However useful jealousy may be in republics, yet when like bile in the natural, it abounds too much in the body politic, the eyes of both become very liable to be deceived by the delusive appearances which that malady casts on surrounding objects. From this cause, probably, proceed the fears and apprehensions of some, that the President and Senate may make treaties without an equal eye to the interests of all the States. Others suspect that two thirds will oppress the remaining third, and ask whether those gentlemen are made sufficiently responsible for their conduct; whether, if they act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?
As all the States are equally represented in the Senate, and by men the most able and the most willing to promote the interests of their constituents, they will all have an equal degree of influence in that body, especially while they continue to be careful in appointing proper persons, and to insist on their punctual attendance. In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole. It will not be the power of the President and Senate to make any treaties by which they and their families and estates will not be equally bound and affected with the rest of the community; and, having no private interests distinct from that of the nation, they will be under no temptations to neglect the latter.
As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.
With respect to their responsibility, it is difficult to conceive how it could be increased. Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience, the love of country, and family affections and attachments, afford security for their fidelity. In short, as the Constitution has taken the utmost care that they shall be men of talents, and integrity, we have reason to be persuaded that the treaties they make will be as advantageous as, all circumstances considered, could be made; and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.
– PUBLIUS
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the preexisting factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.
The convention, it appears, thought the Senate the most fit depositary of this of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.
What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?
Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?
Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard, in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.
These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen, in one trial, should, in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reasons to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know any thing of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges; who had predetermined his guilt?
Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.
Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments, to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.
But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan, in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infallible criterion for the fallible criterion of his more conceited neighbor? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.
– PUBLIUS
The true meaning of this maxim has been discussed and ascertained in another place, and has been shown to be entirely compatible with a partial intermixture of those departments for special purposes, preserving them, in the main, distinct and unconnected. This partial intermixture is even, in some cases, not only proper but necessary to the mutual defence of the several members of the government against each other. An absolute or qualified negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in political science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason be contended, that the powers relating to impeachments are, as before intimated, an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both ACCUSERS and judges; and guards against the danger of persecution, from the prevalency of a factious spirit in either of those branches. As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire.
It is curious to observe, with what vehemence this part of the plan is assailed, on the principle here taken notice of, by men who profess to admire, without exception, the constitution of this State; while that constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not only a court of impeachments, but the highest judicatory in the State, in all causes, civil and criminal. The proportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New York, in the last resort, may, with truth, be said to reside in its Senate. If the plan of the convention be, in this respect, chargeable with a departure from the celebrated maxim which has been so often mentioned, and seems to be so little understood, how much more culpable must be the constitution of New York? *035
A second objection to the Senate, as a court of impeachments, is, that it contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic. The Senate, it is observed, is to have concurrent authority with the Executive in the formation of treaties and in the appointment to offices: if, say the objectors, to these prerogatives is added that of deciding in all cases of impeachment, it will give a decided predominancy to senatorial influence. To an objection so little precise in itself, it is not each to find a very precise answer. Where is the measure or criterion to which we can appeal, for determining what will give the Senate too much, too little, or barely the proper degree of influence? Will it not be more safe, as well as more simple, to dismiss such vague and uncertain calculations, to examine each power by itself, and to decide, on general principles, where it may be deposited with most advantage and least inconvenience?
If we take this course, it will lead to a more intelligible, if not to a more certain result. The disposition of the power of making treaties, which has obtained in the plan of the convention, will, then, if I mistake not, appear to be fully justified by the consideration stated in a former number, and by others which will occur under the next head of our inquiries. The expediency of the junction of the Senate with the Executive, in the power of appointing to offices, will, I trust, be placed in a light not less satisfactory, in the disquisitions under the same head. And I flatter myself the observations in my last paper must have gone no inconsiderable way towards proving that it was not easy, if practicable, to find a more fit receptacle for the power of determining impeachments, than that which has been chosen. If this be truly the case, the hypothetical dread of the too great weight of the Senate ought to be discarded from our reasonings.
But this hypothesis, such as it is, has already been refuted in the remarks applied to the duration in office prescribed for the senators. It was by them shown, as well on the credit of historical examples, as from the reason of the thing, that the most popular branch of every government, partaking of the republican genius, by being generally the favorite of the people, will be as generally a full match, if not an overmatch, for every other member of the Government.
But independent of this most active and operative principle, to secure the equilibrium of the national House of Representatives, the plan of the convention has provided in its favor several important counterpoises to the additional authorities to be conferred upon the Senate. The exclusive privilege of originating money bills will belong to the House of Representatives. The same house will possess the sole right of instituting impeachments: is not this a complete counterbalance to that of determining them? The same house will be the umpire in all elections of the President, which do not unite the suffrages of a majority of the whole number of electors; a case which it cannot be doubted will sometimes, if not frequently, happen. The constant possibility of the thing must be a fruitful source of influence to that body. The more it is contemplated, the more important will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the Union, for the first office in it. It would not perhaps be rash to predict, that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate.
A third objection to the Senate as a court of impeachments, is drawn from the agency they are to have in the appointments to office. It is imagined that they would be too indulgent judges of the conduct of men, in whose official creation they had participated. The principle of this objection would condemn a practice, which is to be seen in all the State governments, if not in all the governments with which we are acquainted: I mean that of rendering those who hold offices during pleasure, dependent on the pleasure of those who appoint them. With equal plausibility might it be alleged in this case, that the favoritism of the latter would always be an asylum for the misbehavior of the former. But that practice, in contradiction to this principle, proceeds upon the presumption, that the responsibility of those who appoint, for the fitness and competency of the persons on whom they bestow their choice, and the interest they will have in the respectable and prosperous administration of affairs, will inspire a sufficient disposition to dismiss from a share in it all such who, by their conduct, shall have proved themselves unworthy of the confidence reposed in them. Though facts may not always correspond with this presumption, yet if it be, in the main, just, it must destroy the supposition that the Senate, who will merely sanction the choice of the Executive, should feel a bias, towards the objects of that choice, strong enough to blind them to the evidences of guilt so extraordinary, as to have induced the representatives of the nation to become its accusers.
If any further arguments were necessary to evince the improbability of such a bias, it might be found in the nature of the agency of the Senate in the business of appointments. It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose- they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
A fourth objection to the Senate, in the capacity of a court of impeachments, is derived from its union with the Executive in the power of making treaties. This, it has been said, would constitute the senators their own judges, in every case of a corrupt or perfidious execution of that trust. After having combined with the Executive in betraying the interests of the nation in a ruinous treaty, what prospect, it is asked, would there be of their being made to suffer the punishment they would deserve, when they were themselves to decide upon the accusation brought against them for the treachery of which they have been guilty?
This objection has been circulated with more earnestness and with greater show of reason than any other which has appeared against this part of the plan; and yet I am deceived if it does not rest upon an erroneous foundation.
The security essentially intended by the Constitution against corruption and treachery in the formation of treaties, is to be sought for in the numbers and characters of those who are to make them. The JOINT AGENCY of the Chief Magistrate of the Union, and of two thirds of the members of a body selected by the collective wisdom of the legislatures of the several States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of integrity in the conduct of the negotiations committed to him; they might also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as the mercenary instruments of foreign corruption: but they could not, with more or with equal propriety, have contemplated the impeachment and punishment of two thirds of the Senate, consenting to an improper treaty, than of a majority of that or of the other branch of the national legislature, consenting to a pernicious or unconstitutional law,- a principle which, I believe, has never been admitted into any government. How, in fact, could a majority in the House of Representatives impeach themselves? Not better, it is evident, than two thirds of the Senate might try themselves. And yet what reason is there, that a majority of the House of Representatives, sacrificing the interests of the society by an unjust and tyrannical act of legislation, should escape with impunity, more than two thirds of the Senate, sacrificing the same interests in an injurious treaty with a foreign power? The truth is, that in all such cases it is essential to the freedom and to the necessary independence of the deliberations of the body, that the members of it should be exempt from punishment for acts done in a collective capacity; and the security to the society must depend on the care which is taken to confide the trust to proper hands, to make it their interest to execute it with fidelity, and to make it as difficult as possible for them to combine in any interest opposite to that of the public good.
So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence, or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. And so far even as might concern the corruption of leading members, by whose arts and influence the majority may have been inveigled into measures odious to the community, if the proofs of that corruption should be satisfactory, the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.
– PUBLIUS
Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. Calculating upon the aversion of the people to monarchy, they have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as the embryo, but as the full-grown progeny, of that detested parent. To establish the pretended affinity, they have not scrupled to draw resources even from the regions of fiction. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York, have been magnified into more than royal prerogatives. He has been decorated with attribute superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.
Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated.
In the execution of this task, there is no man who would not find it an arduous effort either to behold with moderation, or to treat with seriousness, the devices, not less weak than wicked, which have been contrived to pervert the public opinion in relation to the subject.
They so far exceed the usual though unjustifiable licences of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. It is impossible not to bestow the imputation of deliberate imposture and deception upon the gross pretence of a similitude between a king of Great Britain and a magistrate of the character marked out for that of the President of the United States. It is still more impossible to withhold that imputation from the rash and barefaced expedients which have been employed to give success to the attempted imposition.
In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is expressly allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. This bold experiment upon the discernment of his countrymen has been hazarded by a writer who (whatever may be his real merit) has had no inconsiderable share in the applauses of his party; *036 and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded. Let him now be confronted with the evidence of the fact, and let him, if he be able, justify or extenuate the shameful outrage he has offered to the dictates of truth and to the rules of fair dealing.
The second clause of the second section of the second article empowers the President of the United States “to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law.” Immediately after this clause follows another in these words: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable. The first of these two clauses, it is clear, only provides a mode for appointing such officers, “whose appointments are not otherwise provided for in the Constitution, and which shall be established by law”; of course it cannot extend to the appointments of senators, whose appointments are otherwise provided for in the Constitution, *037 and who are established by the Constitution, and will not require a future establishment by law. This position will hardly be contested.
The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons:- First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers, and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Secondly. If this clause is to be considered as supplementary to the one which precedes, the vacancies of which it speaks must be construed to relate to the “officers” described in the preceding one; and this, we have seen, excludes from its description the members of the Senate. Thirdly.
The time within which the power is to operate, “during the recess of the Senate,” and the duration of the appointments, “to the end of the next session” of that body, conspire to elucidate the sense of the provision, which, if it had been intended to comprehend senators, would naturally have referred the temporary power of filling vacancies to the recess of the State legislatures, who are to make the permanent appointments, and not to the recess of the national Senate, who are to have no concern in those appointments; and would have extended the duration in office of the temporary senators to the next session of the legislature of the State, in whose representation the vacancies had happened, instead of making it to expire at the end of the ensuing session of the national Senate. The circumstances of the body authorized to make the permanent appointments would, of course, have governed the modification of a power which related to the temporary appointments; and as the national Senate is the body, whose situation is alone contemplated in the clause upon which the suggestion under examination has been founded, the vacancies to which it alludes can only be deemed to respect those officers in whose appointment that body has a concurrent agency with the President.
But lastly, the first and second clauses of the third section of the first article, not only obviate all possibility of doubt, but destroy the pretext of misconception. The former provides, that “the Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof for six years”; and the latter directs, that, “if vacancies in that body should happen by resignation or otherwise, during the recess of the legislature of ANY STATE, the Executive THEREOF may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.” Here is an express power given, in clear and unambiguous terms, to the State Executives, to fill casual vacancies in the Senate, by temporary appointments; which not only invalidates the supposition, that the clause before considered could have been intended to confer that power upon the President of the United States, but proves that this supposition, destitute as it is even of the merit of plausibility, must have originated in an intention to deceive the people, too palpable to be obscured by sophistry, too atrocious to be palliated by hypocrisy.
I have taken the pains to select this instance of misrepresentation, and to place it in a clear and strong light, as an unequivocal proof of the unwarrantable arts which are practiced to prevent a fair and impartial judgment of the real merits of the Constitution submitted to the consideration of the people. Nor have I scrupled, in so flagrant a case, allow myself a severity of animadversion little congenial with the general spirit of these papers. I hesitate not to submit it to the decision of any candid and honest adversary of the proposed government, whether language can furnish epithets of too much asperity, for so shameless and so prostitute an attempt to impose on the citizens of America.
– PUBLIUS
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.
Another and no less important desideratum was, that the Executive should be independent for his continuance in the office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.
All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to center in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office. The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue. And this will be thought no inconsiderable recommendation of the Constitution, by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says:
–
“For forms of government let fools contest-
That which is best administered is best,”-
–
yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration. The Vice-President is to be chosen in the same manner with the President; with this difference, that the Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect to the latter.
The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate to elect out of their own body an officer answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the President should have only a casting vote. And to take the senator of any State from his seat as senator, to place him in that of President of the Senate, would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The other consideration is, that as the Vice-President may occasionally become a substitute for the President, in the supreme executive magistracy, all the reasons which recommend the mode of election prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It is remarkable that in this, as in most other instances, the objection which is made would lie against the constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which would authorize the Vice-President to exercise the authorities and discharge the duties of the President.
– PUBLIUS
That magistrate is to be elected for four years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between him and a king of Great Britain, who is an hereditary monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between him and a governor of New York, who is elected for three years, and is re-eligible without limitation or intermission. If we consider how much less time would be requisite for establishing a dangerous influence in a single State, than for establishing a like influence throughout the United States, we must conclude that a duration of four years for the Chief Magistrate of the Union is a degree of permanency far less to be dreaded in that office, than a duration of three years for a corresponding office in a single State. The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.
The President of the United States is to have power to return a bill, which shall have passed the two branches of the legislature, for reconsideration; and the bill so returned is to become a law, if, upon that reconsideration, it be approved by two thirds of both houses. The king of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time past does not affect the reality of its existence; and is to be ascribed wholly to the crown’s having found the means of substituting influence to authority, or the art of gaining a majority in one or the other of the two houses, to the necessity of exerting a prerogative which could seldom be exerted without hazarding some degree of national agitation. The qualified negative of the President differs widely from this absolute negative of the British sovereign; and tallies exactly with the revisionary authority of the council of revision of this State, of which the governor is a constituent part. In this respect the power of the President would exceed that of the governor of New York, because the former would possess, singly, what the latter shares with the chancellor and judges; but it would be precisely the same with that of the governor of Massachusetts, whose constitution, as to this article, seems to have been the original from which the convention have copied.
The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.” In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York.
The most material points of difference are these:-
First. The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.
Secondly. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,- all which, by the Constitution under consideration, would appertain to the legislature. *039 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy. But the constitutions of several of the States expressly declare their governors to be commanders-in-chief, as well of the army as navy; and it may well be a question, whether those of New Hampshire and Massachusetts, in particular, do not, in this instance, confer larger powers upon their respective governors, than could be claimed by a President of the United States.
Thirdly. The power of the President, in respect to pardons, would extend to all cases, except those of impeachment. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offence of treason is limited “to levying war upon the United States, and adhering to their enemies, giving them aid and comfort”; and that by the laws of New York it is confined within similar bounds.
Fourthly. The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment. The British monarch may prorogue or even dissolve the Parliament. The governor of New York may also prorogue the legislature of this State for a limited time; a power which, in certain situations, may be employed to very important purposes.
The President is to have power, with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur. The king of Great Britain is the sole and absolute representative of the nation in all foreign transactions. He can of his own accord make treaties of peace, commerce, alliance, and of every other description. It has been insinuated, that his authority in this respect is not conclusive, and that his conventions with foreign powers are subject to the revision, and stand in need of the ratification, of Parliament. But I believe this doctrine was never heard of, until it was broached upon the present occasion. Every jurist *040 of that kingdom, and every other man acquainted with its Constitution, knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanction. The Parliament, it is true, is sometimes seen employing itself in altering the existing laws to conform them to the stipulations in a new treaty; and this may have possibly given birth to the imagination, that its cooperation was necessary to the obligatory efficacy of the treaty. But this parliamentary interposition proceeds from a different cause: from the necessity of adjusting a most artificial and intricate system of revenue and commercial laws, to the changes made in them by the operation of the treaty; and of adapting new provisions and precautions to the new state of things, to keep the machine from running into disorder. In this respect, therefore, there is no comparison between the intended power of the President and the actual power of the British sovereign. The one can perform alone what the other can do only with the concurrence of a branch of the legislature. It must be admitted, that, in this instance, the power of the federal Executive would exceed that of any State Executive. But this arises naturally from the sovereign power which relates to treaties. If the Confederacy were to be dissolved, it would become a question whether the Executives of the several States were not solely invested with that delicate and important prerogative.
The President is also to be authorized to receive ambassadors and other public ministers. This, though it has been a rich theme of declamation, is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.
The President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure; and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king; nor is it equal to that of the governor of New York, if we are to interpret the meaning of the constitution of the State by the practice which has obtained under it. The power of appointment is with us lodged in a council, composed of the governor and four members of the Senate, chosen by the Assembly. The governor claims, and has frequently exercised, the right of nomination, and is entitled to a casting vote in the appointment. If he really has the right of nominating, his authority is in this respect equal to that of the President, and exceeds it in the article of the casting vote. In the national government, if the Senate should be divided, no appointment could be made; in the government of New York, if the council should be divided, the governor can turn the scale, and confirm his own nomination. *041 If we compare the publicity which must necessarily attend the mode of appointment by the President and an entire branch of the national legislature, with the privacy in the mode of appointment by the governor of New York, closeted in a secret apartment with at most four, and frequently with only two persons; and if we at the same time consider how much more easy it must be to influence the small number of which a council of appointment consist, than the considerable number of which the national Senate would consist, we cannot hesitate to pronounce that the power of the chief magistrate of this State, in the disposition of offices, must, in practice, be greatly superior to that of the Chief Magistrate of the Union.
Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would in the aggregate, possess more or less power than the Governor of New York. And it appears yet more unequivocally, that there is no pretence for the parallel which has been attempted between him and the king of Great Britain. But to render the contrast in this respect still more striking, it may be of use to throw the principal circumstances of dissimilitude into a closer group.
The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever: the other can make denizens of aliens, noblemen of commoners: can erect corporations with all the rights incident to corporate bodies.
The one can prescribe no rules concerning the commerce or currencyof the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
– PUBLIUS
There can be no need, however, to multiply arguments for examples on this head. A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government. Taking it for granted, therefore, that all men of sense will agree in the necessity of an energetic Executive, it will only remain to inquire, what are the ingredients which constitute this energy? How far can they be combined with those other ingredients which constitute safety in the republican sense? And how far does this combination characterize the plan which has been reported by the convention?
The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers. The ingredients, which constitute safety in the republican sense are, first a due dependence on the people; secondly, a due responsibility.
Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive and a numerous legislature. They have, with great propriety, considered energy as the most necessary qualification of the former, and have regarded this as most applicable to power in a single hand; while they have, with equal propriety, considered the latter as best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests.
That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any great number; and in proportion as the number is increased, these qualities will be diminished. This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and cooperation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. *042 Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.
The experience of other nations will afford little instruction on this head. As far, however, as it teaches any thing, it teaches us not to be enamored of plurality in the Executive. We have seen that the Achaeans, on an experiment of two Praetors, were induced to abolish one. The Roman history records many instances of mischiefs to the republic from the dissensions between the Consuls, and between the military Tribunes, who were at times substituted for the Consuls.
But it gives us no specimens of any peculiar advantages derived to the state from the circumstance of the plurality of those magistrates. That the dissensions between them were not more frequent or more fatal, is matter of astonishment, until we advert to the singular position in which the republic was almost continually placed, and to the prudent policy pointed out by the circumstances of the state, and pursued by the Consuls, of making a division of the government between them. The patricians engaged in a perpetual struggle with the plebeians for the preservation of their ancient authorities and dignities; the Consuls, who were generally chosen out of the former body, were commonly united by the personal interest they had in the defence of the privileges of their order. In addition to this motive of union, after the arms of the republic had considerably expanded the boundary of its empire, it became an established custom with the Consuls to divide the administration between themselves by lot- one of them remaining at Rome to govern the city and its environs, the other taking command in the more distant provinces. This expedient must, no doubt, have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic.
But quitting the dim light of historical research, attaching ourselves purely to the dictates of reason and good sense, we shall discover much greater cause to reject than to approve the idea of plurality in the Executive, under any modification whatever. Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring. Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operations of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.
Men often oppose a thing, merely because they have had no agency in planning it, or because it may have been planned by those whom they dislike. But if they have been consulted, and have happened to disapprove, opposition then becomes, in their estimation, an indispensable duty of self-love. They seem to think themselves bound in honor, and by all the motives of personal infallibility, to defeat the success of what has been resolved upon contrary to their sentiments. Men of upright, benevolent tempers have too many opportunities of remarking, with horror, to what desperate lengths this disposition is sometimes carried, and how often the great interests of society are sacrificed to the vanity, to the conceit, and to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind. Perhaps the question now before the public may, in its consequences, afford melancholy proofs of the effects of this despicable frailty, or rather detestable vice, in the human character.
Upon the principles of a free government, inconveniences from the source just mentioned must necessarily be submitted to in the formation of the legislature; but it is unnecessary, and therefore unwise, to introduce them into the constitution of the Executive. It is here too that they may be most pernicious. In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of the government, though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection, and serve to check excesses in the majority. When a resolution too is once taken, the opposition must be at an end. That resolution is a law, and resistance to it punishable. But no favorable circumstances palliate or atone for the disadvantages of dissension in the executive department. Here, they are pure and unmixed. There is no point at which they cease to operate. They serve to embarrass and weaken the execution of the plan or measure to which they relate, from the first step to the final conclusion of it. They constantly counteract those qualities in the Executive which are the most necessary ingredients in its composition,- vigor and expedition, and this without any counterbalancing good. In the conduct of war, in which the energy of the Executive is the bulwark of the national security, every thing would be to be apprehended from its plurality.
It must be confessed that these observations apply with principal weight to the first case supposed- that is, to a plurality of magistrates of equal dignity and authority, a scheme, the advocates for which are not likely to form a numerous sect; but they apply, though not with equal, yet with considerable weight to the project of a council, whose concurrence is made constitutionally necessary to the operations of the ostensible Executive. An artful cabal in that council would be able to distract and to enervate the whole system of administration. If no such cabal should exist, the mere diversity of views and opinions would alone be sufficient to tincture the exercise of the executive authority with a spirit of habitual feebleness and dilatoriness.
But one of the weightiest objections to a plurality in the Executive, and which lies as much against the last as the first plan, is, that it tends to conceal faults and destroy responsibility. Responsibility is of two kinds- to censure and to punishment. The first is the more important of the two, especially in an elective office. Man, in public trust, will much oftener act in such a manner as to render him unworthy of being any longer trusted, than in such a manner as to make him obnoxious to legal punishment. But the multiplication of the Executive adds to the difficulty of detection in either case. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall. It is shifted from one to another with so much dexterity, and under such plausible appearances, that the public opinion is left in suspense about the real author. The circumstances which may have led to any national miscarriage of misfortune are sometimes so complicated that, where there are a number of actors who may have had different degrees and kinds of agency, though we may clearly see upon the whole that there has been mismanagement, yet it may be impracticable to pronounce to whose account the evil which may have been incurred is truly chargeable.
“I was overruled by my council. The council were so divided in their opinions that it was impossible to obtain any better resolution on the point.” These and similar pretexts are constantly at hand, whether true or false. And who is there that will either take the trouble or incur the odium of a strict scrutiny into the secret springs of the transaction? Should there be found a citizen zealous enough to undertake the unpromising task, if there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?
In the single instance in which the governor of this State is coupled with a council- that is, in the appointment to offices, we have seen the mischiefs of it in the view now under consideration. Scandalous appointments to important offices have been made. Some cases, indeed, have been so flagrant that ALL PARTIES have agreed in the impropriety of the thing. When inquiry has been made, the blame has been laid by the governor on the members of the council, who, on their part, have charged it upon his nomination; while the people remain altogether at a loss to determine, by whose influence their interests have been committed to hands so unqualified and so manifestly improper. In tenderness to individuals, I forbear to descend to particulars.
It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number, as on account of the uncertainty on whom it ought to fall; and, secondly, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order, either to their removal from office, or to their actual punishment in cases which admit of it.
In England, the king is a perpetual magistrate; and it is a maxim which has obtained for the sake of the public peace, that he is unaccountable for his administration, and his person sacred.
Nothing, therefore, can be wiser in that kingdom, than to annex to the king a constitutional council, who may be responsible to the nation for the advice they give. Without this, there would be no responsibility whatever in the executive department- an idea inadmissible in a free government. But even there the king is not bound by the resolutions of his council, though they are answerable for the advice they give. He is the absolute master of his own conduct in the exercise of his office, and may observe or disregard the counsel given to him at his sole discretion.
But in a republic, where every magistrate ought to be personally responsible for his behavior in office, the reason which in the British Constitution dictates the propriety of a council, not only ceases to apply, but turns against the institution. In the monarchy of Great Britain, it furnishes a substitute for the prohibited responsibility of the chief magistrate, which serves in some degree as a hostage to the national justice for his good behavior. In the American republic, it would serve to destroy, or would greatly diminish, the intended and necessary responsibility of the Chief Magistrate himself.
The idea of a council to the Executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man. If the maxim should be admitted to be applicable to the case, I should contend that the advantage on that side would not counterbalance the numerous disadvantages on the opposite side. But I do not think the rule at all applicable to the executive power. I clearly concur in opinion, in this particular, with a writer whom the celebrated Junius pronounces to be “deep, solid, and ingenious,” that “the executive power is more easily confined when it is ONE”; *043 that it is far more safe there should be a single object for the jealousy and watchfulness of the people; and, in a word, that all multiplication of the Executive is rather dangerous than friendly to liberty.
A little consideration will satisfy us, that the species of security sought for in the multiplication of the Executive, is unattainable. Numbers must be so great as to render combination difficult, or they are rather a source of danger than of security. The united credit and influence of several individuals must be more formidable to liberty, than the credit and influence of either of them separately.
When power, therefore, is placed in the hands of so small a number of men, as to admit of their interests and views being easily combined in a common enterprise, by an artful leader, it becomes more liable to abuse, and more dangerous when abused, than if it be lodged in the hands of one man; who, from the very circumstance of his being alone, will be more narrowly watched and more readily suspected, and who cannot unite so great a mass of influence as when he is associated with others. The Decemvirs of Rome, whose name denotes their number, *044 were more to be dreaded in their usurpation than any ONE of them would have been. No person would think of proposing an Executive much more numerous than that body; from six to a dozen have been suggested for the number of the council. The extreme of these numbers, is not too great for an easy combination; and from such a combination America would have more to fear, than from the ambition of any single individual. A council to a magistrate, who is himself responsible for what he does, are generally nothing better than a clog upon his good intentions, are often the instruments and accomplices of his bad, and are almost always a cloak to his faults.
I forbear to dwell upon the subject of expense; though it be evident that if the council should be numerous enough to answer the principal end aimed at by the institution, the salaries of the members, who must be drawn from their homes to reside at the seat of government, would form an item in the catalogue of public expenditures too serious to be incurred for an object of equivocal utility. I will only add that, prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as the result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution.
– PUBLIUS
But however inclined we might be to insist upon an unbounded complaisance in the Executive to the inclinations of the people, we can with no propriety contend for a like complaisance to the humors of the legislature. The latter may sometimes stand in opposition to the former, and at other times the people may be entirely neutral. In either supposition, it is certainly desirable that the Executive should be in a situation to dare to act his own opinion with vigor and decision.
The same rule which teaches the propriety of a partition between the various branches of power, teaches us likewise that this partition ought to be so contrived as to render the one independent of the other. To what purpose separate the executive or the judiciary from the legislative, if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative? Such a separation must be merely nominal, and incapable of producing the ends for which it was established. It is one thing to be subordinate to the laws, and another to be dependent on the legislative body. The first comports with, the last violates, the fundamental principles of good government; and, whatever may be the forms of the Constitution, unites all power in the same hands. The tendency of the legislative authority to absorb every other, has been fully displayed and illustrated by examples in some preceding numbers. In governments purely republican, this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.
It may perhaps be asked, how the shortness of the duration in office can affect the independence of the Executive on the legislature, unless the one were possessed of the power of appointing or displacing the other. One answer to this inquiry may be drawn from the principle already remarked- that is, from the slender interest a man is apt to take in a short-lived advantage, and the little inducement it affords him to expose himself, on account of it, to any considerable inconvenience or hazard. Another answer, perhaps more obvious, though not more conclusive, will result from the consideration of the influence of the legislative body over the people; which might be employed to prevent the re-election of a man who, by an upright resistance to any sinister project of that body, should have made himself obnoxious to its resentment.
It may be asked also, whether a duration of four years would answer the end proposed; and if it would not, whether a less period, which would at least be recommended by greater security against ambitious designs, would not, for that reason, be preferable to a longer period, which was at the same time, too short for the purpose of inspiring the desired firmness and independence of the magistrate. It cannot be affirmed, that a duration of four years, or any other limited duration, would completely answer the end proposed; but it would contribute towards it in a degree which would have a material influence upon the spirit and character of the government. Between the commencement and termination of such a period, there would always be a considerable interval, in which the prospect of annihilation would be sufficiently remote, not to have an improper effect upon the conduct of a man imbued with a tolerable portion of fortitude; and in which he might reasonably promise himself, that there would be time enough before it arrived, to make the community sensible of the propriety of the measures he might incline to pursue. Though it be probable that, as he approached the moment when the public were, by a new election, to signify their sense of his conduct, his confidence, and with it his firmness, would decline; yet both the one and the other would derive support from the opportunities which his previous continuance in the station had afforded him, of establishing himself in the esteem and good-will of his constituents. He might, then, hazard with safety, in proportion to the proofs he had given of his wisdom and integrity, and to the title he had acquired to the respect and attachment of his fellow-citizens. As, on the one hand, a duration of four years will contribute to the firmness of the Executive in a sufficient degree to render it a very valuable ingredient in the composition; so, on the other, it is not enough to justify any alarm for the public liberty. If a British House of Commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of co-equal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation *045 attempted by them, what would be to be feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States? What, but that he might be unequal to the task which the Constitution assigns him? I shall only add, that if his duration be such as to leave a doubt of his firmness, that doubt is inconsistent with a jealousy of his encroachments.
– PUBLIUS
These considerations, and the influence of personal confidences and attachments, would be likely to induce every new President to promote a change of men to fill the subordinate stations; and these causes together could not fail to occasion a disgraceful and ruinous mutability in the administration of the government. With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits. The last is necessary to enable the people, when they see reason to approve of his conduct, to continue him in his station, in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.
Nothing appears more plausible at first sight, nor more ill-founded upon close inspection than a scheme which in relation to the present point has had some respectable advocates,- I mean that of continuing the chief magistrate in office for a certain time, and then excluding him from it, either for a limited period or forever after. This exclusion, whether temporary or perpetual, would have nearly the same effects and these effects would be for the most part rather pernicious than salutary.
One ill effect of the exclusion would be a diminution of the inducements to good behavior. There are few men who would not feel much less zeal in the discharge of a duty, when they were conscious that the advantages of the station with which it was connected must be relinquished at a determinate period, than when they were permitted to entertain a hope of obtaining, by meriting, a continuance of them. This position will not be disputed so long as it is admitted that the desire of reward is one of the strongest incentives of human conduct; or that the best security for the fidelity of mankind is to make their interest coincide with their duty. Even the love of fame, the ruling passion of the noblest minds, which would prompt a man to plan and undertake extensive and arduous enterprises for the public benefit, requiring considerable time to mature and perfect them, if he could flatter himself with the prospect of being allowed to finish what he had begun, would, on the contrary, deter him from the undertaking, when he foresaw that he must quit the scene before he could accomplish the work, and must commit that, together with his own reputation, to hands which might be unequal or unfriendly to the task. The most to be expected from the generality of men, in such a situation, is the negative merit of not doing harm, instead of the positive merit of doing good. Another ill effect of the exclusion would be the temptation to sordid views, to peculation, and, in some instances, to usurpation. An avaricious man, who might happen to fill the office, looking forward to a time when he must at all events yield up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by such a man, to make the best use of the opportunity he enjoyed while it lasted, and might not scruple to have recourse to the most corrupt expedients to make the harvest as abundant as it was transitory; though the same man, probably, with a different prospect before him, might content himself with the regular perquisites of his situation, and might even be unwilling to risk the consequences of an abuse of his opportunities. His avarice might be a guard upon his avarice.
Add to this that the same man might be vain or ambitious, as well as avaricious. And if he could expect to prolong his honors by his good conduct, he might hesitate to sacrifice his appetite for them to his appetite for gain. But with the prospect before him of approaching an inevitable annihilation, his avarice would be likely to get the victory over his caution, his vanity, or his ambition.
An ambitious man, too, when he found himself seated on the summit of his country’s honors, when he looked forward to the time at which he must descend from the exalted eminence for ever, and reflected that no exertion of merit on his part could save him from the unwelcome reverse; such a man, in such a situation, would be much more violently tempted to embrace a favorable conjuncture for attempting the prolongation of his power, at every personal hazard, than if he had the probability of answering the same end by doing his duty.
Would it promote the peace of the community, or the stability of the government to have half a dozen men who had had credit enough to be raised to the seat of the supreme magistracy, wandering among the people like discontented ghosts, and sighing for a place which they were destined never more to possess?
A third ill effect of the exclusion would be, the depriving the community of the advantage of the experience gained by the chief magistrate in the exercise of his office. That experience is the parent of wisdom, is an adage the truth of which is recognized by the wisest as well as the simplest of mankind. What more desirable or more essential than this quality in the governors of nations? Where more desirable or more essential that in the first magistrate of a nation? Can it be wise to put this desirable and essential quality under the ban of the Constitution, and to declare that the moment it is acquired, its possessor shall be compelled to abandon the station in which it was acquired, and to which it is adapted? This, nevertheless, is the precise import of all those regulations which exclude men from serving their country, by the choice of their fellow-citizens, after they have by a course of service fitted themselves for doing it with a greater degree of utility. A fourth ill effect of the exclusion would be the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety.
There is no nation which has not, at one period or another, experienced an absolute necessity of the services of particular men in particular situations; perhaps it would not be too strong to say, to the preservation of its political existence. How unwise, therefore, must be every such self-denying ordinance as serves to prohibit a nation from making use its own citizens in the manner best suited to its exigencies and circumstances! Without supposing the personal essentiality of the man, it is evident that a change of the chief magistrate, at the breaking out of a war, or at any similar crisis, for another, even of equal merit, would at all times be detrimental to the community, inasmuch as it would substitute inexperience to experience, and would tend to unhinge and set afloat the already settled train of the administration.
A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. The contrary is the usual course of things. And we need not be apprehensive that there will be too much stability, while there is even the option of changing; nor need we desire to prohibit the people from continuing their confidence where they think it may be safely placed, and where, by constancy on their part, they may obviate the fatal inconveniences of fluctuating councils and a variable policy.
These are some of the disadvantages which would flow from the principle of exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but when we consider that even a partial exclusion would always render the readmission of the person a remote and precarious object, the observations which have been made will apply nearly as fully to one case as to the other.
What are the advantages promised to counterbalance these disadvantages? They are represented to be: 1st, greater independence in the magistrate; 2nd, greater security to the people. Unless the exclusion be perpetual, there will be no pretence to infer the first advantage. But even in that case, may he have no object beyond his present station, to which he may sacrifice his independence? May he have no connections, no friends, for whom he may sacrifice it? May he not be less willing, by a firm conduct, to make personal enemies, when he acts under the impression that a time is fast approaching, on the arrival of which he not only MAY, but MUST, be exposed to their resentments, upon an equal, perhaps upon an inferior, footing? It is not an easy point to determine whether his independence would be most promoted or impaired by such an arrangement.
As to the second supposed advantage, there is still great reason to entertain doubts concerning it. If the exclusion were to be perpetual, a man of irregular ambition, of whom alone there could be reason in any case to entertain apprehension, would, with infinite reluctance, yield to the necessity of taking his leave forever of a post in which his passion for power and preeminence had acquired the force of habit. And if he had been fortunate or adroit enough to conciliate the good-will of the people, he might induce them to consider as a very odious and unjustifiable restraint upon themselves, a provision which was calculated to debar them of the right of giving a fresh proof of their attachment to a favorite. There may be conceived circumstances in which this disgust of the people, seconding the thwarted ambition of such a favorite, might occasion greater danger to liberty, than could ever reasonably be dreaded from the possibility of perpetuation in office, by the voluntary suffrages of the community, exercising a constitutional privilege. There is an excess of refinement in the idea of disabling the people to continue in office men who had entitled themselves, in their opinion, to approbation and confidence; the advantages of which are at best speculative and equivocal, and are overbalanced by disadvantages far more certain and decisive.
– PUBLIUS
It is not easy, therefore, to commend too highly the judicious attention which has been paid to this subject in the proposed Constitution. It is there provided that “The President of the United States shall, at stated times, receive for his services a compensation which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” It is impossible to imagine any provision which would have been more eligible than this. The legislature, on the appointment of a President, is once for all to declare what shall be the compensation for his services during the time for which he shall have been elected. This done, they will have no power to alter it, either by increase or diminution, till a new period of service by a new election commences. They can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice. Neither the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act.
He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution. The last of the requisites to energy, which have been enumerated, are competent powers. Let us proceed to consider those which are proposed to be vested in the President of the United States.
The first thing that offers itself to our observation, is the qualified negative of the President upon the acts or resolutions of the two houses of the legislature; or, in other words, his power of returning all bills with objections, to have the effect of preventing their becoming laws, unless they should afterwards be ratified by two thirds of each of the component members of the legislative body.
The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defence, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote. And in the one mode or the other, the legislative and executive powers might speedily come to be blended in the same hands. If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defence.
But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.
The propriety of a negative has, upon some occasions, been combated by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body.
But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn. The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. It is far less probable, that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by turns govern and mislead every one of them.
It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution calculated to restrain the excess of lawmaking, and to keep things in the same state in which they happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones.
Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and there would oftener be room for a charge of timidity than of rashness in the exercise of it. A king of Great Britain, with all his train of sovereign attributes, and with all the influence he draws from a thousand sources, would, at this day, hesitate to put a negative upon the joint resolutions of the two houses of Parliament.
He would not fail to exert the utmost resources of that influence to strangle a measure disagreeable to him, in its progress to the throne, to avoid being reduced to the dilemma of permitting it to take effect, or of risking the displeasure of the nation by an opposition to the sense of the legislative body. Nor is it probable that he would ultimately venture to exert his prerogatives, but in a case of manifest propriety, or extreme necessity. All well-informed men in that kingdom will accede to the justness of this remark. A very considerable period has elapsed since the negative of the crown has been exercised.
If a magistrate so powerful and so well fortified as a British monarch, would have scruples about the exercise of the power under consideration, how much greater caution may be reasonably expected in a President of the United States, clothed for the short period of four years with the executive authority of a government wholly and purely republican?
It is evident that there would be greater danger of his not using his power when necessary, than of his using it too often, or too much. An argument, indeed, against it expediency, has been drawn from this very source. It has been represented, on this account, as a power odious in appearance, useless in practice. But it will not follow, that because it might be rarely exercised, it would never be exercised. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the Executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defence, and would listen to the admonitions of duty and responsibility. In the former supposition, his fortitude would be stimulated by his immediate interest in the power of his office; in the latter, by the probability of the sanction of his constituents, who, though they would naturally incline to the legislative body in a doubtful case, would hardly suffer their partiality to delude them in a very plain case. I speak now with an eye to a magistrate possessing only a common share of firmness.
There are men who, under any circumstances, will have the courage to do their duty at every hazard. But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections. He would be encouraged by the reflection, that if his opposition should prevail, it would embark in it a very respectable proportion of the legislative body, whose influence would be united with his in supporting the propriety of his conduct in the public opinion. A direct and categorical negative has something in the appearance of it more harsh, and more apt to irritate, than the mere suggestion of argumentative objections to be approved or disapproved by those to whom they are addressed. In proportion as it would be less apt to offend, it would be more apt to be exercised; and for this very reason, it may in practice be found more effectual. It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. It is at any rate far less probable that this should be the case, than that such views should taint the resolutions and conduct of a bare majority. A power of this nature in the Executive, will often have a silent and unperceived, though forcible, operation. When men, engaged in unjustifiable pursuits, are aware that obstructions may come from a quarter which they cannot control, they will often be restrained by the bare apprehension of opposition, from doing what they would with eagerness rush into, if so such external impediments were to be feared.
This qualified negative, as has been elsewhere remarked is in this State vested in a council, consisting of the governor, with the chancellor and judges of the Supreme Court, or any two of them. It has been freely employed upon a variety of occasions, and frequently with success. And its utility has become so apparent, that persons who, in compiling the Constitution, were violent opposers of it, have from experience become its declared admirers. *046 I have in another place remarked, that the convention, in the formation of this part of their plan, had departed from the model of the constitution of this State, in favor of that of Massachusetts. Two strong reasons may be imagined for this preference. One is that the judges, who are to be the interpreters of the law, might receive an improper bias, from having given a previous opinion in their revisionary capacities; the other is that by being often associated with the Executive, they might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive.
– PUBLIUS
He is also to be authorized to grant “reprieves and pardons for offences against the United States, except in cases of impeachment.” Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offence. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this; in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the common wealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before hand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.
– PUBLIUS
With regard to the intermixture of powers, I shall rely upon the explanations already given in other places, of the true sense of the rule upon which that objection is founded; and shall take it for granted, as an inference from them, that the union of the Executive with the Senate, in the article of treaties, is no infringement of that rule. I venture to add, that the particular nature of the power of making treaties indicates a peculiar propriety in that union. Though several writers on the subject of government place that power in the class of executive authorities, yet this is evidently an arbitrary disposition; for if we attend carefully to its operation, it will be found to partake more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them. The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defence, seem to comprise all the functions of the executive magistrate. The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, not to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign. The power in question seems therefore to form a distinct department, and to belong, properly, neither to the legislative nor to the executive. The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.
However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years’ duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.
To have intrusted the power of making treaties to the Senate alone, would have been to relinquish the benefits of the constitutional agency of the President in the conduct of foreign negotiations. It is true that the Senate would, in that case, have the option of employing him in this capacity, but they would also have the option of letting it alone, and pique or cabal might induce the latter rather than the former. Besides this, the ministerial servant of the Senate could not be expected to enjoy the confidence and respect of foreign powers in the same degree with the constitutional representatives of the nation, and, of course, would not be able to act with an equal degree of weight or efficacy. While the Union would, from this cause, lose a considerable advantage in the management of its external concerns, the people would lose the additional security which would result from the cooperation of the Executive. Though it would be imprudent to confide in him solely so important a trust, yet it cannot be doubted that his participation would materially add to the safety of the society. It must indeed be clear to a demonstration that the joint possession of the power in question, by the President and Senate, would afford a greater prospect of security, than the separate possession of it by either of them. And whoever has maturely weighed the circumstances which must concur in the appointment of a President, will be satisfied that the office will always bid fair to be filled by men of such characters as to render their concurrence in the formation of treaties peculiarly desirable, as well on the score of wisdom, as on that of integrity.
The remarks made in a former number, which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing in a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project.
The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members present. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents, unnecessary.
To require a fixed proportion of the whole body would not, in all probability, contribute to the advantages of a numerous agency, better than merely to require a proportion of the attending members. The former, by making a determinate number at all times requisite to a resolution, diminishes the motives to punctual attendance. The latter, by making the capacity of the body to depend on a proportion which may be varied by the absence or presence of a single member, has the contrary effect. And as, by promoting punctuality, it tends to keep the body complete, that is great likelihood that its resolutions would generally be dictated by as great a number in this case as in the other; while there would be much fewer occasions of delay. It ought not to be forgotten that, under the existing Confederation, two members may, and usually do, represent a State; whence it happens that Congress, who now are solely invested with all the powers of the Union, rarely consist of a greater number of persons than would compose the intended Senate. If we add to this, that as the members vote by States, and that where there is only a single member present from a State, his vote is lost, it will justify a supposition that the active voices in the Senate, where the members are to vote individually, would rarely fall short in number of the active voices in the existing Congress. When, in addition to these considerations, we take into view the cooperation of the President, we shall not hesitate to infer that the people of America would have greater security against an improper use of the power of making treaties, under the new Constitution, than they now enjoy under the Confederation. And when we proceed still one step further, and look forward to the probable augmentation of the Senate, by the erection of new States, we shall not only perceive ample ground of confidence in the sufficiency of the members to whose agency that power will be intrusted, but we shall probably be led to conclude that a body more numerous than the Senate would be likely to become, would be very little fit for the proper discharge of the trust.
– PUBLIUS
It will be agreed on all hands, that the power of appointment, in ordinary cases, ought to be modified in one of three ways. It ought either to be vested in a single man, or in a select assembly of a moderate number; or in a single man, with the concurrence of such an assembly. The exercise of it by the people at large will be readily admitted to be impracticable; as waiving every other consideration, it would leave them little time to do any thing else. When, therefore, mention is made in the subsequent reasonings, of an assembly or body of men, what is said must be understood to relate to a select body or assembly, of the description already given. The people collectively, from their number and from their dispersed situation, cannot be regulated in their movements by that systematic spirit of cabal and intrigue, which will be urged as the chief objections to reposing the power in question in a body of men.
Those who have themselves reflected upon the subject, or who have attended to the observations made in other parts of these papers, in relation to the appointment of the President, will, I presume, agree to the position, that there would always be great probability of having the place supplied by a man of abilities, at least respectable.
Premising this, I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them. He will have fewer personal attachments to gratify, than a body of men who may each be supposed to have an equal number; and will be so much the less liable to be misled by the sentiments of friendship and of affection. A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body. There is nothing so apt to agitate the passions of mankind as personal considerations, whether they relate to ourselves or to others, who are to be the objects of our choice or preference. Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: “Give us the man we wish for this office, and you shall have the one you wish for that.” This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.
The truth of the principles here advanced seems to have been felt by the most intelligent of those who have found fault with the provision made, in this respect, by the convention. They contend that the President ought solely to have been authorized to make the appointments under the federal government. But it is easy to show, that every advantage to be expected from such an arrangement would, in substance, be derived from the power of nomination, which is proposed to be conferred upon him; while several disadvantages which might attend the absolute power of appointment in the hands of that officer would be avoided. In the act of nomination, his judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself.
The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by an subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venality inhuman nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. It has been found to exist in the most corrupt periods of the most corrupt governments. The venality of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong, as well as in this; and it cannot be doubted that the charge is to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to men and to measures. Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable. A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its cooperation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided some important guards against the danger of executive influence upon the legislative body: it declares that “No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person, holding any office under the United States, shall be a member of either house during his continuance in office.”
– PUBLIUS
To state the first in its proper form, is to refute it. It amounts to this: the President would have an improper influence over the Senate, because the Senate would have the power of restraining him. This is an absurdity in terms. It cannot admit of a doubt that the entire power of appointment would enable him much more effectually to establish a dangerous empire over that body, than a mere power or nomination subject to their control.
Let us take a view of the converse of the proposition: “the Senate would influence the Executive.” As I have had occasion to remark in several other instances, the indistinctness of the objection forbids a precise answer. In what manner is this influence to be exerted? In relation to what objects? The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him. How could the Senate confer a benefit upon the President by the manner of employing their right of negative upon his nominations? If it be said they might sometimes gratify him by an acquiescence in a favorite choice, when public motives might dictate a different conduct, I answer, that the instances in which the President could be personally interested in the result, would be too few to admit of his being materially affected by the compliances of the Senate. The POWER which can originate the disposition of honors and emoluments, is more likely to attract than to be attracted by the POWER which can merely obstruct their course. If by influencing the President be meant restraining him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils.
Upon a comparison of the plan for the appointment of the officers of the proposed government with that which is established by the constitution of this State, a decided preference must be given to the former. In that plan the power of nomination is unequivocally vested in the Executive. And as there would be a necessity for submitting each nomination to the judgment of an entire branch of legislature, the circumstances attending an appointment, from the mode of conducting it, would naturally become matter of notoriety; and the public would be at no loss to determine what part had been performed by the different actors. The blame of a bad nomination would fall upon the President singly and absolutely. The censure of rejecting a good one would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.
The reverse of all this characterizes the manner of appointment in this State. The council of appointment consists of from three to five persons, of whom the governor is always one. This small body, shut up in a private apartment, impenetrable to the public eye, proceed to the execution of the trust committed to them. It is known that the governor claims the right of nomination, upon the strength of some ambiguous expressions in the constitution; but it is not known to what extent, or in what manner he exercises it; nor upon what occasions he is contradicted or opposed. The censure of a bad appointment, on account of the uncertainty of its author, and for want of a determinate object, has neither poignancy nor duration. And while an unbounded field for cabal and intrigue lies open, all idea of responsibility is lost. The most that the public can know, is that the governor claims the right of nomination; that two out of the inconsiderable number of four men can too often be managed without much difficulty; that if some of the members of a particular council should happen to be of an uncomplying character, it is frequently not impossible to get rid of their opposition by regulating the times of meeting in such a manner as to render their attendance inconvenient; and that from whatever cause it may proceed, a great number of very improper appointments are from time to time made.
Whether a governor of this State avails himself of the ascendant he must necessarily have, in this delicate an important part of the administration, to prefer to offices men who are best qualified for them, or whether he prostitutes that advantage to the advancement of persons whose chief merit is their implicit devotion to his will, and to the support of a despicable and dangerous system of personal influence, are questions which, unfortunately for the community, can only be the subjects of speculation and conjecture. Every mere council of appointment, however constituted, will be a conclave, in which cabal and intrigue will have their full scope. Their number, without an unwarrantable increase of expense, cannot be large enough to preclude a facility of combination. And as each member will have his friends and connections to provide for, the desire of mutual gratification will beget a scandalous bartering of votes and bargaining for places. The private attachments of one man might easily be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, would occasion a monopoly of all the principal employments of the government in a few families, and would lead more directly to an aristocracy or an oligarchy than any measure that could be contrived. If, to avoid an accumulation of offices, there was to be a frequent change in the persons who were to compose the council, this would involve the mischiefs of a mutable administration in their full extent. Such a council would also be more liable to executive influence than the Senate, because they would be fewer in number, and would act less immediately under the public inspection. Such a council, in fine, as a substitute for the plan of the convention, would be productive of an increase of expense, a multiplication of the evils which spring from favoritism and intrigue in the distribution of public honors, a decrease of stability in the administration of the government, and a diminution of the security against an undue influence of the Executive. And yet such a council has been warmly contended for as an essential amendment in the proposed Constitution.
I could not with propriety conclude my observations on the subject of appointments without taking notice of a scheme for which there have appeared some, though but few advocates; I mean that of uniting the House of Representatives in the Power of making them. I shall, however, do little more than mention it, as I cannot imagine that it is likely to gain the countenance of any considerable part of the community. A body so fluctuating and at the same time so numerous, can never be deemed proper for the exercise of that power. Its unfitness will appear manifest to all, when it is recollected that in half a century it may consist of three or four hundred persons. All the advantages of the stability, both of the Executive and of the Senate, would be defeated by this union, and infinite delays and embarrassments would be occasioned. The example of most of the States in their local constitutions encourages us to reprobate the idea.
The only remaining powers of the Executive are comprehended in giving information to Congress of the state of the Union; in recommending to their consideration such measures as he shall judge expedient; in convening them, or either branch, upon extraordinary occasions; in adjourning them when they cannot themselves agree upon the time of adjournment; in receiving ambassadors and other public ministers; in faithfully executing the laws; and in commissioning all the officers of the United States. Except some cavils about the power of convening either house of the legislature, and that of receiving ambassadors, no objection has been made to this class of authorities; nor could they possibly admit of any. It required, indeed, an insatiable avidity for censure to invent exceptions to the parts which have been excepted to. In regard to the power of convening either house of the legislature, I shall barely remark, that in respect to the Senate at least, we can readily discover a good reason for it. As this body has a concurrent power with the Executive in the article of treaties, it might often be necessary to call it together with a view to this object, when it would be unnecessary and improper to convene the House of Representatives. As to the reception of ambassadors, what I have said in a former paper will furnish a sufficient answer.
We have not completed a survey of the structure and powers of the executive department, which, I have endeavored to show, combines, as far as republican principles will admit, all the requisites to energy. The remaining inquiry is: Does it also combine the requisites to safety, in a republican sense,- a due dependence on the people, a due responsibility? The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?
– PUBLIUS
First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.
Second. As to the tenure by which the judges are to hold their places: this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility. According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior; which is conformable to the most approved of the State constitutions, and among the rest to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; *047 that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” *048 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by it coordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in it constitution, and, in a great measure, as the citadel of the public justice and the public security.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding form the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an equal authority, that which was the last indication of its will should have the preference.
But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. It can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies, *049 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.
Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.
– PUBLIUS
This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant today, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges. That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would be come too small in the progress of their service.
This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges. The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.
The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interest of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.
The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbably it is that any considerable portion of the bench, whether more of less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.
– PUBLIUS
The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the State legislatures, without some constitutional mode of enforcing the observance of them? The States, by the plan of the convention, are prohibited from doing a variety of things, some of which are incompatible with the interests of the Union, and others with the principles of good government. The imposition of duties on imported articles, and the emission of paper money, are specimens of each kind. No man of sense will believe, that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the State laws, or an authority in the federal courts to overrule such as might be in manifest contravention of the articles of Union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and, I presume, will be most agreeable to the States.
As to the second point, it is impossible, by an argument or comment, to make it clearer than it is in itself. If there are such things as political axioms, the propriety of the judicial power of a government being coextensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government from which nothing but contradiction and confusion can proceed.
Still less need be said in regard to the third point. Controversies between the nation and its members or citizens, can only be properly referred to the national tribunals. Any other plan would be contrary to reason, to precedent, and to decorum. The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned. This is not less essential to the preservation of the public faith, than to the security of the public tranquillity. A distinction may perhaps be imagined between cases arising upon treaties and the laws of nations and those which may stand merely on the footing of the municipal law. The former kind may be supposed proper for the federal jurisdiction, the latter for that of the States. But it is at least problematical, whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign, as well as one which violated the stipulations of a treaty or the general law of nations. And a still greater objection to the distinction would result from the immense difficulty, if not impossibility, of a practical discrimination between the cases of one complexion and those of the other. So great a proportion of the cases in which foreigners are parties, involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.
The power of determining causes between two States, between one State and the citizens of another, and between the citizens of different States, is perhaps not less essential to the peace of the Union than that which has been just examined. History gives us a horrid picture of the dissensions and private wars which distracted and desolated Germany prior to the institution of the Imperial Chamber by Maximilian, towards the close of the fifteenth century; and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire. This was a court invested with authority to decide finally all differences among the members of the Germanic body.
A method of terminating territorial disputes between the States, under the authority of the federal head, was not unattended to, even in the imperfect system by which they have been hitherto held together. But there are many other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. To some of these we have been witnesses in the course of our past experience. It will readily be conjectured that I allude to the fraudulent laws which have been passed in too many of the States. And though the proposed Constitution establishes particular guards against the repetition of those instances which have heretofore made their appearance, yet it is warrantable to apprehend that the spirit which produced them will assume new shapes that could not be foreseen nor specifically provided against. Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.
It may be esteemed the basis of the Union, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.
The fifth point will demand little animadversion. The most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the cognizances of maritime causes. These so generally depend on the laws of nations, and so commonly affect the rights of foreigners, that they fall within the considerations which are relative to the public peace. The most important part of them are, by the present Confederation, submitted to federal jurisdiction.
The reasonableness of the agency of the national courts in cases in which the State tribunals cannot be supposed to be impartial, speaks for itself. No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias. This principle has no inconsiderable weight in designating the federal courts as the proper tribunals for the determination of controversies between different States and their citizens. And it ought to have the same operation in regard to some cases between citizens of the same State. Claims to land under grants of different States, founded upon adverse pretentions of boundary, are of this description. The courts of neither of the granting States could be expected to be unbiased. The laws may have even prejudged the question, and tied the courts down to decisions in favor of the grants of the State to which they belonged. And even where this had not been done, it would be natural that the judges, as men, should feel a strong predilection to the claims of their own government.
Having thus laid down and discussed the principles which ought to regulate the constitution of the federal judiciary, we will proceed to test, by these principles, the particular powers of which, according to the plan of the convention, it is to be composed. It is to comprehend “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”
This constitutes the entire mass of the judicial authority of the Union. Let us now review it in detail. It is, then, to extend:
First. To all cases in law and equity, arising under the Constitution and the laws of the United States. This corresponds with the two first classes of causes, which have been enumerated, as proper for the jurisdiction of the United States. It has been asked, what is meant by “cases arising under the Constitution,” in contradistinction from those “arising under the laws of the United States”? The difference has been already explained. All the restrictions upon the authority of the State legislatures furnish examples of it. They are not, for instance to emit paper money; but the interdiction results from the Constitution, and will have no connection with any law of the United States. Should paper money, notwithstanding, be emitted, the controversies concerning it would be cases arising under the Constitution and not the laws of the United States, in the ordinary signification of the terms. This may serve as a sample of the whole.
It has also been asked, what need of the word “equity”? What equitable causes can grow out of the Constitution and laws of the United States? There is hardly a subject of litigation between individuals, which may not involve those ingredients of fraud, accident, trust, or hardship, which would render the matter an object of equitable rather than of legal jurisdiction, as the distinction is known and established in several of the States. It is the peculiar province, for instance, of a court of equity to relieve against what are called hard bargains: these are contracts in which, though there may have been no direct fraud or deceit, sufficient to invalidate them in a court of law, yet there may have been some undue and unconscionable advantage taken of the necessities or misfortunes of one of the parties, which a court of equity would not tolerate. In such cases, where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable as well as a legal jurisdiction.
Agreements to convey lands claimed under the grants of different States, may afford another example of the necessity of an equitable jurisdiction in the federal courts. This reasoning may not be so palpable in those States where the formal and technical distinction between LAW and EQUITY is not maintained, as in this State, where it is exemplified by every day’s practice.
The judiciary authority of the Union is to extend:
Second. To treaties made, or which shall be made, under the authority of the United States, and to all cases affecting ambassadors, other public ministers, and consuls. These belong to the fourth class of the enumerated cases, as they have an evident connection with the preservation of the national peace.
Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the fifth of the enumerated classes of causes proper for the cognizance of the national courts.
Fourth. To controversies to which the United States shall be a party. These constitute the third of those classes.
Fifth. To controversies between two or more States; between a State and citizens of another State; between citizens of different States. These belong to the fourth of those classes and partake, in some measure, of the nature of the last.
Sixth. To cases between the citizens of the same State, claiming lands under grants of different States. These fall within the last class, and are the only instances in which the proposed Constitution directly contemplates the cognizance of disputes between the citizens of the same State.
Seventh. To cases between a State and the citizens thereof, and foreign States, citizens, or subjects. These have been already explained to belong to the fourth of the enumerated classes, and have been shown to be, in a peculiar manner, the proper subjects of the national judicature.
From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischief can never be viewed, by a well-informed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages.
– PUBLIUS
That there ought to be one court of supreme and final jurisdiction, is a proposition which is not likely to be contested. The reasons have been assigned in another place, and are too obvious to need repetition. The only question that seems to have been raised concerning it, is, whether it ought to be a distinct body or a branch of the legislature. The same contradiction is observable in regard to this matter which has been remarked in several other cases. The very men who object to the Senate as a court of impeachments, on the ground of an improper intermixture of powers, advocate, by implication at least, the propriety of vesting the ultimate decision of all causes, in the whole or in a part of the legislative body.
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general.
The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.
In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but form the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments. There can be no objection, therefore, on this account, to the federal judicature which will not lie against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.
But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a part of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice.
The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitution of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.
It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act.
Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding is province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support it usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. Having now examined, and, I trust, removed the objections to the distinct and independent organization of the Supreme Court, I proceed to consider the propriety of the power of constituting inferior courts, *052 and the relations which will subsist between these and the former.
The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or authorize, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.
But why, it is asked, might not the same purpose have been accomplished by the instrumentality of the State courts? This admits of different answers. Though the fitness and competency of those courts should be allowed in the utmost latitude, yet the substance of the power in question may still be regarded as a necessary part of the plan, if it were only to empower the national legislature to commit to them the cognizance of causes arising out of the national Constitution. To confer the power of determining such causes upon the existing courts of the several States, would perhaps be as much “to constitute tribunals,” as to create new courts with the like power. But ought not a more direct and explicit provision to have been made in favor of the State courts? There are, in my opinion, substantial reasons against such a provision: the most discerning cannot foresee how far the prevalency of a local spirit may be found to disqualify the local tribunals for the jurisdiction of national causes; whilst every man may discover, that courts constituted like those of some of the States would be improper channels of the judicial authority of the Union. State judges, holding their offices during pleasure, or from year to year, will be too little independent to be relied upon for an inflexible execution of the national laws. And if there was a necessity for confiding the original cognizance of causes arising under those laws to them, there would be a correspondent necessity for leaving the door of appeal as wide as possible. In proportion to the grounds of confidence in, or distrust of, the subordinate tribunals, ought to be the facility or difficulty of appeals. And well satisfied as I am of the propriety of the appellate jurisdiction, in the several classes of causes to which it is extended by the plan of the convention. I should consider every thing calculated to give, in practice, and unrestrained course to appeals, as a source of public and private inconvenience.
I am not sure, but that it will be found highly expedient and useful, to divide the United States into four or five or half a dozen districts; and to institute a federal court in each district, in lieu of one in every State. The judges of these courts, with the aid of the State judges, may hold circuits for the trial of causes in the several parts of the respective districts. Justice through them may be administered with ease and despatch; and appeals may be safely circumscribed within a narrow compass. This plan appears to me at present the most eligible of any that could be adopted; and in order to it, it is necessary that the power of constituting inferior courts should exist in the full extent in which it is to be found in the proposed Constitution.
These reasons seem sufficient to satisfy a candid mind, that the want of such a power would have been a great defect in the plan. Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union. The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.” Public ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation. Though consuls have not in a strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them. In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal.
Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article of taxation, and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable.
Let us resume the train of our observations. We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur. In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, “with such exceptions and under such regulations as the Congress shall make.” The propriety of this appellate jurisdiction has been scarcely called in question in regard to matters of law; but the clamors have been loud against it as applied to matters of fact. Some well-intentioned men in this State, deriving their notions from the language and forms which obtain in our courts, have been induced to consider it as an implied supersedure of the trial by jury, in favor of the civil-law mode of trial, which prevails in our courts of admiralty, probate, and chancery. A technical sense has been affixed to the term “appellate,” which, in our law parlance, is commonly used in reference to appeals in the course of the civil law. But if I am not misinformed, the same meaning would not be given to it in any part of New England. There an appeal from one jury to another, is familiar both in language and practice, is even a matter of course, until there have been two verdicts on one side. The word “appellate,” therefore, will not be understood in the same sense in new England as in New York, which shows the impropriety of a technical interpretation derived from the jurisprudence of any particular State.
The expression, taken in the abstract, denotes nothing more than the power of one tribunal to review the proceedings of another, either as to the law or fact, or both. The mode of doing it may depend on ancient custom or legislative provision (in a new government it must depend on the latter), and may be with or without the aid of a jury, as may be judged advisable. If, therefore, the re-examination of a fact once determined by a jury, should in any case be admitted under the proposed Constitution, it may be so regulated as to be done by a second jury, either by remanding the cause to the court below for a second trial of the fact, or by directing an issue immediately out of the Supreme Court.
But it does not follow that the re-examination of a fact once ascertained by a jury, will be permitted in the Supreme Court. Why may not it be said, with the strictest propriety, when a writ of error is brought from an inferior to a superior court of law in this State, that the latter has jurisdiction of the fact as well as the law? It is true it cannot institute a new inquiry concerning the fact, but it takes cognizance of it as it appears upon the record, and pronounces the law arising upon it. *053 This is jurisdiction of both fact and law; nor is it even possible to separate them. Though the common-law courts of this State ascertain disputed facts by a jury, yet they unquestionably have jurisdiction of both fact and law; and accordingly when the former is agreed in the pleadings, they have no recourse to a jury, but proceed at once to judgment. I contend, therefore, on this ground, that the expressions, “appellate jurisdiction, both as to law and fact,” do not necessarily imply a re-examination in the Supreme Court of facts decided by juries in the inferior courts.
The following train of ideas may well be imagined to have influenced the convention, in relation to this particular provision. The appellate jurisdiction of the Supreme Court (it may have been argued) will extend to causes determinable in different modes, some in the course of the COMMON LAW, others in the course of the CIVIL LAW. In former, the revision of the law only will be, generally speaking, the proper province of the Supreme Court; in the latter, the re-examination of the fact is agreeable to usage, and in some cases, of which prize causes are an example, might be essential to the preservation of the public peace. It is therefore necessary that the appellate jurisdiction should, in certain cases, extend in the broadest sense to matters of fact. It will not answer to make an express exception of cases which shall have been originally tried by a jury, because in the courts of some of the States all causes are tried in this mode; *054 and such an exception would preclude the revision of matters of fact, as well where it might be proper, as where it might be improper. To avoid all inconveniences, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and fact, and that this jurisdiction shall be subject to such exceptions and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.
This view of the matter, at any rate, puts it out of all doubt that the supposed abolition of the trial by jury, by the operation of this provision, is fallacious and untrue. The legislature of the United States would certainly have full power to provide, that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorized exception; but if, for the reason already intimated, it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. The amount of the observations hitherto made on the authority of the judicial department is this: that it has been carefully restricted to those causes which are manifestly proper for the cognizance of the national judicature; that in the partition of this authority a very small portion of original jurisdiction has been preserved to the Supreme Court, and the rest consigned to the subordinate tribunals; that the Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all cases referred to them, both subject to any exceptions and regulations which may be thought advisable; that this appellate jurisdiction does, in no case, abolish the trial by jury; and that an ordinary degree of prudence and integrity in the national councils will insure us solid advantages from the establishment of the proposed judiciary, without exposing us to any of the inconveniences which have been predicted from that source.
– PUBLIUS
The principles established in a former paper *055 teach us that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three cases: where an exclusive authority is, in express terms, granted to the Union; or where a particular authority is granted to the Union, and the exercise of a like authority is prohibited to the States; or where an authority is granted to the Union, with which a similar authority in the States would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think that they are, in the main, just with respect to the former, as well as the latter. And under this impression, I shall lay it down as a rule, that the State courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated modes.
The only thing in the proposed Constitution, which wears the appearance of confining the causes of federal cognizance to the federal courts, is contained in this passage:- “The JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain and establish.” This might either be construed to signify, that the supreme and subordinate courts of the Union should alone have the power of deciding those causes to which their authority is to extend; or simply to denote, that the organs of the national judiciary should be one Supreme Courts, and as many subordinate courts as Congress should think proper to appoint; or in other words, that the United States should exercise the judicial power with which they are to be invested, through one supreme tribunal, and a certain number of inferior ones, to be instituted by them. The first excludes, the last admits, the concurrent jurisdiction of the State tribunals; and as the first would amount to an alienation of State power by implication, the last appears to me the most natural and the most defensible construction.
But this doctrine of concurrent jurisdiction is only clearly applicable to those descriptions of causes of which the State courts have previous cognizance. It is not equally evident in relation to cases which may grow out of, and be peculiar to, the Constitution to be established; for not to allow the State courts a right of jurisdiction in such cases, can hardly be considered as the abridgement of a preexisting authority. I mean not therefore to contend that the United States, in the course of legislation upon the objects intrusted to their direction, may not commit the decision or causes arising upon a particular regulation to the federal courts solely, if such a measure should be deemed expedient; but I hold that the State courts will be divested of no part of their primitive jurisdiction, further than may relate to an appeal; and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth. This I infer from the nature of judiciary power, and from the general genius of the system. The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive, that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union, where it was not expressly prohibited.
Here another question occurs: What relation would subsist between the national and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter, to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the national and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of national justice and the rules of national decisions.
The evident aim of the plan of the convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions giving appellate jurisdiction to the Supreme Court, to appeals from the subordinate federal courts, instead of allowing their extension to the State Courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation.
But could an appeal be made to lie from the State courts to the subordinate federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the convention, in the first place, authorizes the national legislature “to constitute tribunals inferior to the Supreme Court.” *056 It declares, in the next place, that “the JUDICIAL POWER of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish”; and it then proceeds to enumerate the cases to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition of that of the subordinate courts. The only outlines described for them, are that they shall be “inferior to the Supreme Court,” and that they shall not exceed the specified limits of the federal judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts to the subordinate national tribunals; and many advantages attending the power of doing it maybe imagined. It would diminish the motives to the multiplication of federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals may then be left with a more entire charge of federal causes; and appeals, in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts to district courts of the Union.
– PUBLIUS
The maxims on which they rely are of this nature: “A specification of particulars is an exclusion of generals”; or, “The expression of one thing is the exclusion of another.” Hence, say they, as the Constitution as established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of common-sense, adopted by the courts in the construction of the laws. The true test, therefore, of a just application of them is its conformity to the source from which they are derived. This being the case, let me ask if it is consistent with common-sense to suppose that a provision obliging the legislative power to commit the trial of criminal causes to juries, is a privation of its right to authorize or permit that mode of trial in other cases? Is it natural to suppose, that a command to do one thing is a prohibition to the doing of another, which there was a previous power to do, and which is not incompatible with the thing commanded to be done? If such a supposition would be unnatural and unreasonable, it cannot be rational to maintain that an injunction of the trial by jury in certain cases is an interdiction of it in others.
A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal causes, is abridged by the express injunction of trial by jury in all such cases; but it is, of course, left at large in relation to civil causes, there being a total silence on this head. The specification of an obligation to try all criminal causes in a particular mode, excludes indeed the obligation or necessity of employing the same mode in civil causes, but does not abridge the power of the legislature to exercise that mode if it should be thought proper. The pretence, therefore, that the national legislature would not be at full liberty to submit all the civil causes of federal cognizance to the determination of juries, is a pretence destitute of all just foundation.
From these observations this conclusion results: that the trial by jury in civil cases would not be abolished; and that the use attempted to be made of the maxims which have been quoted, is contrary to reason and common-sense, and therefore not admissible. Even if these maxims had a precise technical sense, corresponding with the idea of those who employ them upon the present occasion, which, however, is not the case, they would still be inapplicable to a constitution of government. In relation to such a subject, the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.
Having now seen that the maxims relied upon will not bear the use made of them, let us endeavor to ascertain their proper use and true meaning. This will be best done by examples. The plan of the convention declares that the power of Congress, or, in other words, of the national legislature, shall extend to certain enumerated cases.
This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.
In like manner the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority.
These examples are sufficient to elucidate the maxims which have been mentioned, and to designate the manner in which they should be used. But that there may be no misapprehension upon this subject, I shall add one case more, to demonstrate the proper use of these maxims, and the abuse which has been made of them.
Let us suppose that by the laws of this State a married woman was incapable of conveying her estate, and that the legislature, considering this as an evil, should enact that she might dispose of her property by deed executed in the presence of a magistrate. In such a case there can be no doubt but the specification would amount to an exclusion of any other mode of conveyance, because the woman having no previous power to alienate her property, the specification determines the particular mode which she is, for that purpose, to avail herself of. But let us further suppose that in a subsequent part of the same act it should be declared that no woman should dispose of any estate of a determinate value without the consent of three of her nearest relations, signified by their signing the deed; could it be inferred from this regulation that a married woman might not procure the approbation of her relations to a deed for conveying property of inferior value? The position is too absurd to merit a refutation, and yet this is precisely the position which those must establish who contend that the trial by juries in civil cases is abolished, because it is expressly provided for in cases of a criminal nature.
From these observations it must appear unquestionably true, that trial by jury is in no case abolished by the proposed Constitution, and it is equally true, that in those controversies between individuals in which the great body of the people are likely to be interested, that institution will remain precisely in the same situation in which it is placed by the State constitutions, and will be in no degree altered or influenced by the adoption of the plan under consideration. The foundation of this assertion is, that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the State courts only, and in the manner which the State constitutions and laws prescribe. All land causes, except where claims under the grants of different States come into question, and all other controversies between the citizens of the same State, unless where they depend upon positive violations of the articles of union, by acts of the State legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to this, that admiralty causes, and almost all those which are of equity jurisdiction, are determinable under our own government without the intervention of a jury, and the inference from the whole will be, that this institution, as it exists with us at present, cannot possibly be affected to any great extent by the proposed alteration in our system of government.
The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fall under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defence against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty. But I must acknowledge that I cannot readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases. Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings. The trial by jury in criminal cases, aided by the habeas corpus act, seems therefore to be alone concerned in the question. And both of these are provided for, in the most ample manner, in the plan of the convention.
It has been observed, that trial by jury is a safeguard against an oppressive exercise of the power of taxation. This observation deserves to be canvassed. It is evident that it can have no influence upon the legislature, in regard to the amount of taxes to be laid, to the objects upon which they are to be imposed, or to the rule by which they are to be apportioned. If it can have any influence, therefore, it must be upon the mode of collection, and the conduct of the officer intrusted with the execution of the revenue laws.
As to the mode of collection in this State, under our own Constitution, the trial by jury is in most cases out of use. The taxes are usually levied by the more summary proceeding of distress and sale, as in cases of rent. And it is acknowledged on all hands, that this is essential to the efficacy of the revenue laws. The dilatory course of a trial at law to recover the taxes imposed on individuals, would neither suit the exigencies of the public nor promote the convenience of the citizens. It would often occasion an accumulation of costs, more burdensome than the original sum of the tax to be levied.
And as to the conduct of the officers of the revenue, the provision in favor of trial by jury in criminal cases, will afford the security aimed at. Wilful abuses of a public authority to the oppression of the subject, and every species of official extortion, are offences against the government, for which the persons who commit them may be indicted and punished according to the circumstances of the case.
The excellence of the trial by jury in civil cases appears to depend on circumstances foreign to the preservation of liberty. The strongest argument in its favor is, that it is a security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, there is room to suppose that a corrupt influence would more easily find its way to the former than to the latter. The force of this consideration is, however, diminished by others. The sheriff, who is the summoner of ordinary juries, and the clerks of courts, who have the nomination of special juries, are themselves standing officers, and, acting individually, may be supposed more accessible to the touch of corruption than the judges, who are a collective body. It is not difficult to see, that it would be in the power of those officers to select jurors who would serve the purpose of the party as well as a corrupted bench. In the next place, it may fairly be supposed, that there would be less difficulty in gaining some of the jurors promiscuously taken from the public mass, than in gaining men who had been chosen by the government for their probity and good character. But making every deduction for these considerations, the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; for where the jury have gone evidently wrong, the court will generally grant a new trial, and it would be in most cases of little use to practice upon the jury, unless the court could be likewise gained. Here then is a double security; and it will readily be perceived that this complicated agency tends to preserve the purity of both institutions. By increasing the obstacles to success, it discourages attempts to seduce the integrity of either. The temptations to prostitution which the judges might have to surmount, must certainly be much fewer, while the cooperation of a jury is necessary, than they might be, if they had themselves the exclusive determination of all causes.
Notwithstanding, therefore, the doubts I have expressed, as to the essentiality of trial by jury in civil cases to liberty, I admit that it is in most cases, under proper regulations, an excellent method of determining questions of property; and that on this account alone it would be entitled to a constitutional provision in its favor if it were possible to fix the limits within which it ought to be comprehended. There is, however, in all cases, great difficulty in this; and men not blinded by enthusiasm must be sensible that in a federal government, which is a composition of societies whose ideas and institutions in relation to the matter materially vary from each other, that difficulty must be not a little augmented. For my own part, at every new view I take of the subject, I become more convinced of the reality of the obstacles which, we are authoritatively informed, prevented the insertion of a provision on this head in the plan of the convention.
The great difference between the limits of the jury trial in different States is not generally understood; and as it must have considerable influence on the sentence we ought to pass upon the omission complained of in regard to this point, an explanation of it is necessary. In this State, our judicial establishments resemble, more nearly than in any other, those of Great Britain. We have courts of common law, courts of probates (analogous in certain matters to the spiritual courts in England), a court of admiralty, and a court of chancery. In the courts of common law only, the trial by jury prevails, and this with some exceptions. In all the others a single judge presides, and proceeds in general either according to the course of the canon or civil law, without the aid of a jury. *057 In New Jersey, there is a court of chancery which proceeds like ours, but neither courts of admiralty nor of probates, in the sense in which these last are established with us. In that State the courts of common law have the cognizance of those causes which with us are determinable in the courts of admiralty and of probates, and of course the jury trial is more extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still more the case, for there is no court of chancery in that State, and its common-law courts have equity jurisdiction. It has a court of admiralty, but none of probates, at least on the plan of ours. Delaware has in these respects imitated Pennsylvania. Maryland approaches more nearly to New York, as does also Virginia, except that the latter has a plurality of chancellors. North Carolina bears most affinity to Pennsylvania; South Carolina to Virginia. I believe, however, that in some of those States which have distinct courts of admiralty, the causes depending in them are triable by juries. In Georgia there are none but common-law courts, and an appeal of course lies from the verdict of one jury to another, which is called a special jury, and for which a particular mode of appointment is marked out. In Connecticut, they have no distinct courts either of chancery or of admiralty, and their courts of probates have no jurisdiction of causes. Their common-law courts have admiralty and, to a certain extent, equity jurisdiction. In cases of importance, their General Assembly is the only court of chancery.
In Connecticut, therefore, the trial by jury extends in practice further than in any other State yet mentioned. Rhode Island is, I believe, in this particular, pretty much in the situation of Connecticut. Massachusetts and New Hampshire, in regard to the blending of law, equity, and admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the trial by jury not only stands upon a broader foundation than in the other States, but it is attended with a peculiarity unknown, in its full extent, to any of them. There is an appeal of course from one jury to another, till there have been two verdicts out of three on one side. From this sketch it appears that there is a material diversity, as well in the modification as in the extent of the institution of trial by jury in civil cases, in the several States; and from this fact these obvious reflections flow: first, that no general rule could have been fixed upon by the convention which would have corresponded with the circumstances of all the States; and secondly, that more or at least as much might have been hazarded by taking the system of any one State for a standard, as by omitting a provision altogether and leaving the matter, as has been done, to legislative regulation.
The propositions which have been made for supplying the omission have rather served to illustrate than to obviate the difficulty of the thing. The minority of Pennsylvania have proposed this mode of expression for the purpose- “Trial by jury shall be as heretofore”- and this I maintain would be senseless and nugatory. The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer. Now it is evident that though trial by jury, with various limitations, is known in each State individually, yet in the United States, as such, it is at this time altogether unknown, because the present federal government has no judiciary power whatever; and consequently there is no proper antecedent or previous establishment to which the term heretofore could relate. It would therefore be destitute of a precise meaning, and inoperative from its uncertainty.
As, on the one hand, the form of the provision would not fulfil the intent of its proposers, so, on the other, if I apprehend that intent rightly, it would be in itself inexpedient. I presume it to be, that causes in the federal courts should be tried by jury, if, in the State where the courts sat, that mode of trial would obtain in a similar case in the State courts; that is to say, admiralty causes should be tried in Connecticut by a jury, in New York without one. The capricious operation of so dissimilar a method of trial in the same cases, under the same government, is of itself sufficient to indispose every well-regulated judgment towards it. Whether the cause should be tried with or without a jury, would depend, in a great number of cases, on the accidental situation of the court and parties.
But this is not, in my estimation, the greatest objection. I feel a deep and deliberate conviction that there are many cases in which the trial by jury is an ineligible one. I think it so particularly in cases which concern the public peace with foreign nations- that is, in most cases where the question turns wholly on the laws of nations. Of this nature, among others, are all prize causes. Juries cannot be supposed competent to investigations that require a thorough knowledge of the laws and usages of nations; and they will sometimes be under the influence of impressions which will not suffer them to pay sufficient regard to those considerations of public policy which ought to guide their inquiries. There would of course be always danger that the rights of other nations might be infringed by their decisions, so as to afford occasions of reprisal and war. Though the proper province of juries be to determine matters of fact, yet in most cases legal consequences are complicated with fact in such a manner as to render a separation impracticable.
It will add great weight to this remark, in relation to prize causes, to mention that the method of determining them has been thought worthy of particular regulation in various treaties between different powers of Europe, and that, pursuant to such treaties, they are determinable in Great Britain, in the last resort, before the king himself, in his privy council, where the fact, as well as the law, undergoes a re-examination. This alone demonstrates the impolicy of inserting a fundamental provision in the Constitution which would make the State systems a standard for the national government in the article under consideration, and the danger of encumbering the government with any constitutional provisions the propriety of which is not indisputable.
My convictions are equally strong that great advantages result form the separation of the equity from the law jurisdiction, and that the causes which belong to the former would be improperly committed to juries. The great and primary use of a court of equity is to give relief in extraordinary cases, which are exceptions *058 to general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, must have a tendency to unsettle the general rules, and to subject every case that arises to a special determination; while a separation of the one from the other has the contrary effect of rendering one a sentinel over the other, and of keeping each within the expedient limits. Besides this, the circumstances that constitute cases proper for courts of equity are in many instances so nice and intricate, that they are incompatible with the genius of trials by jury. They require often such long, deliberate, and critical investigation as would be impracticable to men called from their occupations, and obliged to decide before they were permitted to return to them. The simplicity and expedition which form the distinguishing characters of this mode of trial require that the matter to be decided should be reduced to some single and obvious point; while the litigations usual in chancery frequently comprehend a long train of minute and independent particulars.
It is true that the separation of the equity from the legal jurisdiction is peculiar to the English system of jurisprudence: which is the model that has been followed in several of the States. But it is equally true that the trial by jury has been unknown in every case in which they have been united. And the separation is essential to the preservation of that institution in its pristine purity. The nature of a court of equity will readily permit the extension of its jurisdiction to matters of law; but it is not a little to be suspected, that the attempt to extend the jurisdiction of the courts of law to matters of equity will not only be unproductive of the advantages which may be derived from courts of chancery, on the plan upon which they are established in this State, but will tend gradually to change the nature of the courts of law, and to undermine the trial by jury, by introducing questions too complicated for a decision in that mode.
These appeared to be conclusive reasons against incorporating the systems of all the States, in the formation of the national judiciary, according to what maybe conjectured to have been the attempt of the Pennsylvania minority. Let us now examine how far the proposition of Massachusetts is calculated to remedy the supposed defect. It is in this form: “In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them, request it.”
This, at best, is a proposition confined to one description of causes; and the inference is fair, either that the Massachusetts convention considered that as the only class of federal causes, in which the trial by jury would be proper; or that if desirous of a more extensive provision, they found it impracticable to devise one which would properly answer the end. If the first, the omission of a regulation respecting so partial an object can never be considered as a material imperfection in the system. If the last, it affords a strong corroboration of the extreme difficulty of the thing. But this is not all: if we advert to the observations already made respecting the courts that subsist in the several States of the Union, and the different powers exercised by them, it will appear that there are no expressions more vague and indeterminate than those which have been employed to characterize that species of causes which it is intended shall be entitled to a trial by jury. In this State, the boundaries between actions at common law and actions of equitable jurisdiction, are ascertained in conformity to the rules which prevail in England upon that subject. In many of the other States the boundaries are less precise. In some of them, every cause is to be tried in a court of common law, and upon that foundation every action may be considered as an action at common law, to be determined by a jury, if the parties, or either of them, choose it.
Hence the same irregularity and confusion would be introduced by a compliance with this proposition, that I have already noticed as resulting from the regulation proposed by the Pennsylvania minority. In one State a cause would receive its determination from a jury, if the parties, or either of them, requested it; but in another State, a cause exactly similar to the other, must be decided without the intervention of a jury, because the State judicatories varied as to common-law jurisdiction.
It is obvious, therefore, that the Massachusetts proposition, upon this subject cannot operate as a general regulation, until some uniform plan, with respect to the limits of common-law and equitable jurisdictions, shall be adopted by the different States. To devise a plan of that kind, is a task arduous in itself, and which it would require much time and reflection to mature. It would be extremely difficult, if not impossible, to suggest any general regulation that would be acceptable to all the States in the Union, or that would perfectly quadrate with the several State institutions.
It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference. If the plan of taking one State as a model for the whole had been thought of in the convention, it is to be presumed that the adoption of it in that body would have been rendered difficult by the predilection of each representation in favor of its own government; and it must be uncertain which of the States would have been taken as the model. It has been shown that many of them would be improper ones. And I leave it to conjecture, whether under all circumstances, it is most likely that New York, or some other State, would have been preferred. But admit that a judicious selection could have been effected in the convention, still there would have been great danger of jealousy and disgust in the other States, at the partiality which had been shown to the institution of one. The enemies of the plan would have been furnished with a fine pretext for raising a host of local prejudices against it, which perhaps might have hazarded, in no inconsiderable degree, its final establishment. To avoid the embarrassments of a definition of the cases which the trial by jury ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that a provision might have been inserted for establishing it in all cases whatsoever. For this, I believe, no precedent is to be found in any member of the Union; and the considerations which have been stated in discussing the proposition of the minority of Pennsylvania, must satisfy every sober mind that the establishment of the trial by jury in all cases would have been an unpardonable error in the plan.
In short, the more it is considered the more arduous will appear the task of fashioning a provision in such a form as not to express too little to answer the purpose, or too much to be advisable; or which might not have opened other sources of opposition to the great and essential object of introducing a firm national government.
I cannot but persuade myself, on the other hand, that the different lights in which the subject has been placed in the course of these observations, will go far towards removing in candid minds, the apprehensions they may have entertained on the point. They have tended to show that the security of liberty is materially concerned only in the trial by jury in criminal cases, which is provided for in the most ample manner in the plan of the convention; that even in far the greatest proportion of civil cases, and those in which the great body of the community is interested, that mode of trial will remain in its full force, as established in the State constitutions, untouched and unaffected by the plan of the convention; that it is in no case abolished *059 by that plan; and that there are great if not insurmountable difficulties in the way of making any precise and proper provision for it in a Constitution for the United States.
The best judges of the matter will be the least anxious for a constitutional establishment of the trial by jury in civil cases, and will be the most ready to admit that the changes which are continually happening in the affairs of society may render a different mode of determining questions of property preferable in many cases in which that mode of trial now prevails. For my part, I acknowledge myself to be convinced that even in this State it might be advantageously extended to some cases to which it does not at present apply, and might as advantageously be abridged in others. It is conceded by all reasonable men that it ought not to obtain in all cases. The examples of innovations which contract its ancient limits, as well in these States as in Great Britain, afford a strong presumption that its former extent has been found inconvenient, and give room to suppose that future experience may discover the propriety and utility of other exceptions. I suspect it to be impossible in the nature of the thing to fix the salutary point at which the operation of the institution ought to stop, and this is with me a strong argument for leaving the matter to the discretion of the legislature.
This is now clearly understood to be the case in Great Britain, and it is equally so in the State of Connecticut; and yet it may be safely affirmed that more numerous encroachments have been made upon the trial by jury in this State since the Revolution, though provided for by a positive article of our constitution, than has happened in the same time either in Connecticut or Great Britain. It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career. The truth is that the general GENIUS of a government is all that can be substantially relied upon for permanent effects. Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them; and the want of them will never be, with men of sound discernment, a decisive objection to any plan which exhibits the leading characters of a good government.
It certainly sounds not a little harsh and extraordinary to affirm that there is no security for liberty in a Constitution which expressly establishes the trial by jury in criminal cases, because it does not do it in civil also; while it is a notorious fact that Connecticut, which has been always regarded as the most popular State in the Union, can boast of no constitutional provision for either.
– PUBLIUS
To the first I answer, that the Constitution proposed by the convention contains, as well as the constitution of this State, a number of such provisions.
Independent of those which relate to the structure of the government, we find the following: Article I, section 3, clause 7- “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law.” Section 9, of the same article, clause 2- “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3- “No bill of attainder or ex post facto law shall be passed.” Clause 7- “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.” Article 3, section 2, clause 3- “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.” Section 3, of the same article- “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause 3, of the same section- “The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”
It may well be a question, whether these are not, upon the whole, of equal importance with any which are to be found in the constitution of this State. The establishment of the writ of habeas corpus, the prohibition of ex post facto laws, and of TITLES OF NOBILITY, to which we have no corresponding provision in our Constitution, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, *060 in reference to the latter, are well worthy of recital: “To bereave a man of life, [says he,] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British Constitution.” *061
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.
To the second- that is, to the pretended establishment of the common and statute law by the constitution, I answer, that they are expressly made subject “to such alterations and provisions as the legislature shall from time to time make concerning the same.” They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law, and to remove doubts which might have been occasioned by the Revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
On the subject of the liberty of the press, as much as has been said, I cannot forbear adding a remark or two: in the first place, I observe, that there is not a syllable concerning it in the constitution of this State; in the next, I contend, that whatever has been said about it in that of any other State, amounts to nothing.
What signifies a declaration, that “the liberty of the press shall be inviolably preserved”? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. *062 And here, after all, as is intimated upon another occasion, must we seek for the only solid basis of all our rights. There remains but one other view of this matter to conclude the point. The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills of rights in Great Britain form its Constitution, and conversely the constitution of each State is its bill of rights. And the proposed Constitution, if adopted, will be the bill of rights of the Union. Is it one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government?
This is done in the most ample and precise manner in the plan of the convention; comprehending various precautions for the public security, which are not to be found in any of the State constitutions. Is another object of a bill of rights to define certain immunities and modes of proceeding, which are relative to personal and private concerns? This we have seen has also been attended to, in a variety of cases, in the same plan. Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention. it may be said that it does not go far enough, though it will not be easy to make this appear; but it can with no propriety be contended that there is no such thing.
It certainly must be immaterial what mode is observed as to the order of declaring the rights of the citizens, if they are to be found in any part of the instrument which establishes the government. And hence it must be apparent, that much of what has been said on this subject rests merely on verbal and nominal distinctions, entirely foreign from the substance of the thing.
Another objection which has been made, and which, from the frequency of its repetition, it is to be presumed is relied on, is of this nature: “It is improper [say the objectors] to confer such large powers, as are proposed, upon the national government, because the seat of that government must of necessity be too remote from many of the States to admit of a proper knowledge on the part of the constituent, of the conduct of the representative body.” This argument, if it proves anything, proves that there ought to be no general government whatever. For the powers which, it seems to be agreed on all hands, ought to be vested in the Union, cannot be safely intrusted to a body which is not under every requisite control. But there are satisfactory reasons to show that the objection is in reality not well founded. There is in most of the arguments which relate to distance a palpable illusion of the imagination. What are the sources of information by which the people in Montgomery County must regulate their judgment of the conduct of their representatives in the State legislature? Of personal observation they can have no benefit. This is confined to the citizens on the spot. They must therefore depend on the information of intelligent men, in whom they confide; and how must these men obtain their information? Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does not apply to Montgomery county only, but to all the counties at any considerable distance from the seat of government.
It is equally evident that the same sources of information would be open to the people in relation to the conduct of their representatives in the general government, and the impediments to a prompt communication which distance may be supposed to create, will be overbalanced by the effects of the vigilance of the State governments. The executive and legislative bodies of each State will be so many sentinels over the persons employed in every department of the national administration; and as it will be in their power to adopt and pursue a regular and effectual system of intelligence, they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the people. Their disposition to apprise the community of whatever may prejudice its interests from another quarter, may be relied upon, if it were only from the rivalship of power. And we may conclude with the fullest assurance that the people, through that channel, will be better informed of the conduct of their national representatives, than they can be by any means they now possess of that of their State representatives.
It ought also to be remembered that the citizens who inhabit the country at and near the seat of government will, in all questions that affect the general liberty and prosperity, have the same interest with those who are at a distance, and that they will stand ready to sound the alarm when necessary, and to point out the actors in any pernicious project. The public papers will be expeditious messengers of intelligence to the most remote inhabitants of the Union. Among the many curious objections which have appeared against the proposed Constitution, the most extraordinary and the least colorable is derived from the want of some provision respecting the debts due to the United States. This has been represented as a tacit relinquishment of those debts, and as a wicked contrivance to screen public defaulters. The newspapers have teemed with the most inflammatory railings on this head; yet there is nothing clearer than that the suggestion is entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty. In addition to the remarks I have made upon the subject in another place, I shall only observe that as it is a plain dictate of common-sense, so it is also an established doctrine of political law, that “states neither lose any of their rights, nor are discharged from any of their obligations, by a change in the form of their civil government.” *063
The last objection of any consequence, which I at present recollect, turns upon the article of expense. If it were even true, that the adoption of the proposed government would occasion a considerable increase of expense, it would be an objection that ought to have no weight against the plan.
The great bulk of citizens of America are with reason convinced, that Union is the basis of their political happiness. Men of sense of all parties now, with few exceptions, agree that it cannot be preserved under the present system, nor without radical alterations; that new and extensive powers ought to be granted to the national head, and that these require a different organization of the federal government- a single body being an unsafe depositary of such ample authorities. In conceding all this, the question of expense must be given up; for it is impossible, with any degree of safety, to narrow the foundation upon which the system is to stand. The two branches of the legislature are, in the first instance, to consist of only sixty-five persons, which is the same number of which Congress, under the existing Confederation, may be composed. It is true that this number is intended to be increased; but this is to keep pace with the progress of the population and resources of the country. It is evident that a less number would, even in the first instance, have been unsafe, and that a continuance of the present number would, in a more advanced stage of population, be a very inadequate representation of the people.
Whence is the dreaded augmentation of expense to spring? Once source indicated, is the multiplication of offices under the new government. Let us examine this a little. It is evident that the principal departments of the administration under the present government, are the same which will be required under the new. There are now a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, etc. These officers are indispensable under any system, and will suffice under the new as well as the old. As to ambassadors and other ministers and agents in foreign countries, the proposed Constitution can make no other difference than to render their characters, where they reside, more respectable, and their services more useful. As to persons to be employed in the collection of the revenues, it is unquestionably true that these will form a very considerable addition to the number of federal officers; but it will not follow that this will occasion an increase of public expense. It will be in most cases nothing more than an exchange of State for national officers. In the collection of all duties, for instance, the persons employed will be wholly of the latter description. The States individually will stand in no need of any for this purpose.
What difference can it make in point of expense to pay officers of the customs appointed by the State or by the United States? Where then are we to seek for those additional articles of expense which are to swell the account to the enormous size that has been represented to us? The chief item which occurs to me respects the support of the judges of the United States. I do not add the President, because there is now a president of Congress, whose expenses may not be far, if any thing, short of those which will be incurred on account of the President of the United States. The support of the judges will clearly be an extra expense, but to what extent will depend on the particular plan which may be adopted in regard to this matter. But upon no reasonable plan can it amount to a sum which will be an object of material consequence.
Let us now see what there is to counterbalance any extra expense that may attend the establishment of the proposed government. The first thing which presents itself is that a great part of the business which now keeps Congress sitting through the year will be transacted by the President. Even the management of foreign negotiations will naturally devolve upon him, according to general principles concerted with the Senate, and subject to their final concurrence.
Hence it is evident that a portion of the year will suffice for the session of both the Senate and the House of Representatives; we may suppose about a fourth for the latter and a third, or perhaps half, for the former. The extra business of treaties and appointments may give this extra occupation to the Senate. From this circumstance we may infer that, until the House of Representatives shall be increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant session of the present and the temporary session of the future Congress.
But there is another circumstance of great importance in the view of economy. The business of the United States has hitherto occupied the State legislatures, as well as Congress. The latter has made requisitions which the former have had to provide for. Hence it has happened that the sessions of the State legislatures have been protracted greatly beyond what was necessary for the execution of the mere local business of the States. More than half their time has been frequently employed in matters which related to the United States. Now the members who compose the legislatures of the several States amount to two thousand and upwards, which number has hitherto performed what under the new system will be done in the first instance by sixty-five persons, and probably at no future period by above a fourth or a fifth of that number. The Congress under the proposed government will do all the business of the United States themselves, without the intervention of the State legislatures, who thenceforth will have only to attend to the affairs of their particular State, and will not have to sit in any proportion as long as they have heretofore done. This difference in the time of the sessions of the State legislatures will be clear gain, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense that may be occasioned by the adoption of the new system.
The result from these observations is that the sources of additional expense form the establishment of the proposed Constitution are much fewer than may have been imagined; that they are counterbalanced by considerable objects of saving; and that while it is questionable on which side the scale will preponderate, it is certain that a government less expensive would be incompetent to the purposes of the Union.
– PUBLIUS
ACCORDING to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion two point: “the analogy of the proposed government to your own State constitution,” and “the additional security which its adoption will afford to republican government, to liberty, and to property.” But these heads have been so fully anticipated and exhausted in the progress of the work, that it would not scarcely be possible to do any thing more than repeat, in a more dilated form, what has been heretofore said, which the advanced stage of the question, and the time already spent upon it, conspire to forbid.
It is remarkable, that the resemblance of the plan of the convention to the act which organizes the government of this State holds, not less with regard to many of the supposed defects, than to the real excellences of the former. Among the pretended defects are the re-eligibility of the Executive, the want of a council, the omission of a formal bill of rights, the omission of a provision respecting the liberty of the press. These and several others which have been noted in the course of our inquiries are as much chargeable on the existing constitution of this State, as on the one proposed for the Union; and a man must have slender pretensions to consistency, who can rail at the latter for imperfections which he finds no difficulty in excusing in the former. Nor indeed can there be a better proof of the insincerity and affectation of some of the zealous adversaries of the plan of the convention among us, who profess to be the devoted admirers of the government under which they live, than the fury with which they have attacked that plan, for matters in regard to which our own constitution is equally or perhaps more vulnerable.
The additional securities to republican government, to liberty, and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.
Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted. I have addressed myself purely to your judgments, and have studiously avoided those asperities which are too apt to disgrace political disputants of all parties, and which have been not a little provoked by the language and conduct of the opponents of the Constitution. The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men. It is not impossible that these circumstances may have occasionally betrayed me into intemperances of expression which I did not intend; it is certain that I have frequently felt a struggle between sensibility and moderation; and if the former has in some instances prevailed, it must be my excuse that it has been neither often nor much.
Let us now pause and ask ourselves whether, in the course of these papers, the proposed Constitution has not been satisfactorily vindicated form the aspersions thrown upon it; and whether it has not been shown to be worthy of the public approbation, and necessary to the public safety and prosperity. Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment. This is a duty from which nothing can give him a dispensation. ‘T is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act. Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation; and let him remember that a majority of America has already given its sanction to the plan which he is to approve or reject.
I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed. I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the revolution has produced.
Concessions on the part of the friends of the plan, that it has not a claim to absolute perfection, have afforded matter of no small triumph to its enemies. “Why,” say they, “should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?” This may be plausible enough, but it is only plausible. In the first place I remark, that the extent of these concessions has been greatly exaggerated. They have been stated as amounting to an admission that the plan is radically defective, and that without material alterations the rights and the interests of the community cannot be safely confided to it. This, as far as I have understood the meaning of those who make the concessions, is an entire perversion of their sense. No advocate of the measure can be found, who will not declare as his sentiment, that the system, though it may not be perfect in every part, is, upon the whole, a good one; is the best that the present views and circumstances of the country will permit; and is such an one as promises every species of
security which a reasonable people can desire.
I answer in the next place, that I should esteem it the extreme of imprudence to prolong the precarious state of our national affairs, and to expose the Union to the jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?
The reasons assigned in an excellent little pamphlet lately published in this city, *064 are unanswerable to show the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded. I will not repeat the arguments there used, as I presume the production itself has had an extensive circulation. It is certainly well worthy the perusal of every friend to his country. There is, however, one point of light in which the subject of amendments still remains to be considered, and in which it has not yet been exhibited to public view. I cannot resolve to conclude without first taking a survey of it in this aspect.
It appears to me susceptible of absolute demonstration, that it will be far more easy to obtain subsequent than previous amendments to the Constitution. The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore require the concurrence of thirteen States. If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States. Here, then, the chances are as thirteen to nine *065 in favor of subsequent amendment, rather than of the original adoption of an entire system.
This is not all. Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest. We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points. Many of those who form a majority on one question, may become the minority on a second, and an association dissimilar to either may constitute the majority on a third. Hence the necessity of moulding and arranging all the particulars which are to compose the whole, in such a manner as to satisfy all the parties to the compact; and hence, also, an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act. The degree of that multiplication must evidently be in a ratio to the number of particulars and the number of parties.
But every amendment to the Constitution, if once established, would be a single proposition, and might be brought forward singly. There would then be no necessity for management or compromise, in relation to any other point- no giving nor taking. The will of the requisite number would at once bring the matter to a decisive issue.
And consequently, whenever nine, or rather ten States, were united in the desire of a particular amendment that amendment must infallibly take place. There can, therefore, be no comparison between the facility of affecting an amendment, and that of establishing in the first instance a complete Constitution. In opposition to the probability of subsequent amendments, it has been urged that the persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed. For my own part, I acknowledge a thorough conviction that any amendments which may, upon mature consideration, be thought useful, will be applicable to the organization of the government, not to the mass of its powers; and on this account alone, I think there is no weight in the observation just stated. I also think there is little weight in it on another account. The intrinsic difficulty of governing thirteen States at any rate, independent of calculations upon an ordinary degree of public spirit and integrity, will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents. But there is yet a further consideration, which proves beyond the possibility of a doubt, that the observation is futile. It is this, that the national rulers, whenever nine States concur, will have no option upon the subject. By the fifth article of the plan, the Congress will be obliged “on the application of the legislatures of two thirds of the States [which at present amount to nine], to call a convention for proposing amendments, which shall be valid, to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths thereof.” The words of this article are peremptory.
The Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body. And of consequence, all the declamation about the disinclination to a change vanishes in air. Nor however difficult it may be supposed to unite two thirds or three fourths of the State legislatures, in amendments which may affect local interests, can there be any room to apprehend any such difficulty in a union on points which are merely relative to the general liberty or security of the people. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
If the foregoing argument is a fallacy, certain it is that I am myself deceived by it, for it is, in my conception, one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration. Those who see the matter in the same light with me, however zealous they may be for amendments, must agree in the propriety of a previous adoption, as the most direct road to their own object.
The zeal for attempts to amend, prior to the establishment of the Constitution, must abate in every man who is ready to accede to the truth of the following observations of a writer equally solid and ingenious: “To balance a large state or society [says he], whether monarchical or republican, on general laws, is a work of so great difficulty, that no human genius, however comprehensive, is able, by the mere dint of reason and reflection, to effect it. The judgments of many must unite in the work; experience must guide their labor; time must bring it to perfection, and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.” *066
These judicious reflections contain a lesson of moderation to all the sincere lovers of the Union, and ought to put them upon their guard against hazarding anarchy, civil war, a perpetual alienation of the States from each other, and perhaps the military despotism of a victorious demagogue, in the pursuit of what they are not likely to obtain, but from time and experience. It may be in me a defect of political fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those who affect to treat the dangers of a longer continuance in our present situation as imaginary. A nation, without a national government, is, in my view, an awful spectacle. The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy, to the completion of which I look forward with trembling anxiety. I can reconcile it to no rules of prudence to let go the hold we now have, in so arduous an enterprise, upon seven out of the thirteen States, and after having passed over so considerable a part of the ground, to recommence the course. I dread the more the consequences of new attempts, because I know that powerful individuals, in this and in other States, are enemies to a general national government in every possible shape.
– PUBLIUS