Essays in Historical Criticism/The Authorship of The Federalist

by Edward Gaylord Bourne

THE AUTHORSHIP OF THE FEDERALIST

The Federalist is universally regarded as the most important contribution of our country to political science, and yet, although some twenty-five editions of it have been published, the authorship of twelve important numbers, about one-seventh of the whole, is still undetermined, and in the opinion of Mr. Lodge, the latest critical editor, must remain so. The authorship of three other numbers, 18, 19, and 20, earlier in dispute, Mr. Lodge believes to be satisfactorily settled. The remaining twelve numbers, 49-58, 62, and 63, are attributed to Hamilton in the so-called Hamilton lists, and to Madison in the Madison lists. Madison never wavered in the assertion that he was the author of them, and although the Madison lists differ from each other in regard to a few other numbers, they uniformly assign these numbers to Madison. Mr. Lodge, although the weight of testimony is, in his view, favorable to Hamilton, declares that he "is not even yet completely satisfied "that Nos. 49-58 are not from Madison's pen. In regard to Nos. 62 and 63 he has "very little doubt," thinking they both belong to Hamilton.^[1]

Mr. Lodge concludes: "No one is entitled to assign the disputed numbers to either Hamilton or Madison with absolute confidence. They were surely written by one or the other, and with that unsatisfactory certainty we must fain be content."

The case, in brief, is one where the external evidence is conflicting, and where, hitherto, conclusions have been reached largely in accordance with the predilections of the respective admirers of the two claimants, by rejecting as less trustworthy the testimony of one or the other set of lists. For example, George Bancroft^[2] is as sure that Madison wrote the numbers as John C. Hamilton^[3] is that his father was the author.

In such a juncture the obvious step is to call in a new set of witnesses; in other words, to examine the papers themselves for internal evidence and not to acquiesce in a negative conclusion until every resource has been exhausted. It is hardly likely that two men of such different individualities as Hamilton and Madison, however similar their political experience, and however sincerely working together in the same cause, could write extensively in its behalf without their respective contributions bearing some mark of their authors. Fixed ideas, pet phrases, habitual modes of expression, characteristic political theories, will occur again and again, not only in the essays in question, but elsewhere in the works of the writers. The weight of such evidence is cumulative. Every additional example strengthens one side and proportionally weakens the other. Internal evidence is often inadequate to determine the author of an anonymous work when there are many possibilities. In the case before us all that is required of it is to turn the balance decidedly one way or the other between two even contestants, for such they seem to the student after Mr. Lodge's discussion.

In fact hardly as much as this is necessary, for the case was made to appear an even one by unfairly discrediting Madison's testimony as compared with that of Hamilton. Without such studied disparagement the external evidence is far stronger for Madison's authorship. Mr. Lodge's process is a curious one and starts with rejecting a specific statement of Madison's which can be substantiated beyond any doubt. In the Hamilton lists, he writes, there are "two errors as to two numbers, while in the Madison lists there are twelve errors as to six numbers. Tried, therefore, by the list of admitted errors, Hamilton's authority is shown to be six times as good as that of Madison." Passing by the crudeness of this method of expressing relative degrees of probability, it is to be noted that eight of these twelve "errors" in the Madison lists are made up as follows: Nos. 18 and 19 are three times, and No. 20 twice, attributed to Madison alone. These "errors" are in the earlier Madison lists. After the publication of the Hamilton lists which attributed Nos. 18, 19, and 20 to "Madison and Hamilton jointly," Madison explained the discrepancy in a note to No. 18 in Gideon's edition of 1818. "The subject of this," he writes, "and the following numbers happened to be taken up by both Mr. Hamilton and Mr. Madison. What had been prepared by Mr. Hamilton, who had entered more briefly into the subject, was left to Mr. Madison, on its appearing that the latter was engaged upon it, with larger materials, and with a view to a more precise delineation, and from the pen of the latter the several papers went to press."

In the fuller statement of Madison, in Bancroft's History of the Constitution, II, 337, he says: "It is possible, though not recollected, that something in the draught [i. e., Hamilton's draught] may have been incorporated into the numbers as printed. But it was certainly not of a nature or amount to affect the impression left on the mind of J. M., from whose pen the numbers went to the press, that the numbers were of the class written by him." Then follows a simple and natural explanation of how Hamilton might have regarded them as joint work. Mr. Lodge, however, without giving this explanation of the facts, says that Madison in Gideon's edition of 1818 "concedes 18, 19, and 20 to be the joint work of Hamilton and himself." With all respect to Mr. Lodge, it may be asserted that he made no such concession. In the Gideon editions those numbers are ascribed to Madison alone, and the explanation quoted above is given in a footnote. That explanation beyond doubt can be shown to be true to the letter, and in such a way as greatly to increase one's confidence in Madison's memory and his honesty. The "raw material" of those numbers, with the historical references exactly given, exists in Madison's papers in his own handwriting, and is printed in his Writings, Vol. I, 293-314. Take No. 20, for example, as a test case. Fully nine-tenths of it is drawn from Madison's own abstract of Sir William Temple's Observations upon the United Provinces and of Felice's Code de L'humanité, This can be verified by any one in a few minutes by comparing No. 20 with pp. 302-309 of Madison's Writings, Vol. I. That Madison should assert No. 20 as his own was natural and right; that when Hamilton's assertion of joint authorship was made public he should explain the discrepancy by stating the facts was also natural; that his explanation was truthful internal evidence proves beyond a doubt, and that he *' conceded" No. 20 to be a joint work in any common acceptation of the term is without foundation. Sir William Temple's claim to be recognized as joint author of No. 20 is far stronger than Hamilton's. There are two paragraphs out of twenty-four in No. 20 which appear to have come from Hamilton. Most of the rest is from Sir William Temple. The case with Nos. 18 and 19 is similar, although neither is drawn from so few sources as No. 20; in each there is a possibility of a larger use of Hamilton's notes. After a comparison of these numbers with Madison's Notes on Confederacies, no editor can have any excuse for assigning these numbers to "Hamilton and Madison," as has been uniformly done by Hamiltonian editors since 1810. It should at least read, "Madison and Hamilton," although there seems to be no good reason why the exact and truthful course of the Gideon editions should not be followed in the future.

It will hardly be denied that eight of the twelve "errors" of the Madison lists now disappear, and we have then four errors in regard to two numbers in the Madison lists as compared with Hamilton's two errors in regard to two numbers.

When Mr. Lodge believed Hamilton's testimony six times as good as Madison's, he regarded the question of the authorship of Nos. 49-58 as almost evenly balanced between the

THE AUTHORSHIP OF THE FEDERALIST 117

two. According to his own process of weighing evidence, Hamilton's authority is shown at most to be only twice as good as Madison's, and perhaps only half as good.^ If the scale was evenly balanced before, it must turn now, for the very case used by Mr. Lodge to show that Madison's testi- mony was less trustworthy than Hamilton's memorandum, when examined in the light of Madison's collected material, proves that Madison's statement was accurate to the letter and that Hamilton's rested on a natural misapprehension.

Let us turn now to the more difficult problem presented by Nos. 49-58, 62, and 63. In regard to the series 49-58, an ingenious attempt to reconcile Hamilton's list with Madison's was made in the suggestion that as Hamilton made a mistake of a single figure in attributing 54 to Jay instead of 64, it was not improbable that he made a similar mistake in the next line and wrote 37-48 instead of 37-58.2 The value of this conjecture must depend upon the tendency of the inter- nal evidence.

If one examines the structure of The Federalist^ there seems to be a somewhat systematic division of labor in the preparation of its parts. Jay's few contributions deal with foreign relations, with which he was especially conversant; three distinctively historical papers, like 18, 19, and 20, come from Madison's hand because his studies in the history of federal government had supplied him with ampler materials. With these exceptions, all of the first part of The Federalist^ issued originally as the first volume, deals with general ques- tions emphasizing the defects of the Confederacy and the value of a more perfect union, and of these papers Hamilton wrote all but two. To him these were congenial topics, and he could throw into their discussion his whole force without reserve. As the originator of the essays, he could naturally choose for himself the particular part of the work he preferred

1 Following Mr. Lodge's example we might count Hamilton's assertion of joint authorship of 18, 19, and 20 as "errors," and raise his number of " errors" to eight.

2 See The Historical Magazine, VIII, 306.

to do, and request his collaborators to undertake the portions for which they were particularly fitted. It is not, then, with- out significance that in the opening paragraph of No. 3T, the first of the connected Madison papers, it is said that the plan of the writers "cannot be complete without taking a more critical and thorough survey of the work of the Convention, etc." This is called "the remaining task." Madison was by far the most competent person to perform the "remaining task." He was present at every session of the Convention and did more than any one else to bring it to a successful issue. Hamilton, on the other hand, was absent from June 29 to Aug. 13, and did not speak ^ from Aug. 13 to Sept. 6, on account of "his dislike of the scheme of gov- ernment in general. " ^ If Hamilton refrained from participat- ing in the discussions of the Convention for this reason, is it not altogether probable that he proposed to leave to Madison, as far as practicable, the task of defending the details of the Constitution ? This supposition is strengthened by the fact that Madison had evidently formed a plan of treatment for the numbers that he did not write. ^

His work, however, was cut short by his having to leave New York early in March to prepare for the Virginia Conven- tion. Nos. 49-58 appeared between Feb. 5 and Feb. 22, and are closely connected in subject-matter with the preceding Madison numbers. Nos. 62 and 63 discuss the make-up of the Senate and logically attach themselves to No. 58, which concludes a similar treatment of the House of Representa- tives. They were published Feb. 29 and March 7. They could have been written by Madison; that they should be was in accordance with the apparent plan of 77ie Federalist On the other hand, there seems to be no good reason why they should come from Hamilton as long as Madison was in

1 He could not vote, as both Yates and Lansing of New York had left the Convention.

2 Madison's Debates, Scott's ed., 671.

^ After he left New York he wrote at least once to Hamilton in regard to the later course of The Federalist. April 3, Hamilton replies, explaining the line of argument which seemed best to him. Lodge's Works of Hamilton, VIU, 182.

THE AUTHORSHIP OF THE FEDERALIST 119

New York. The approaching departure, however, of Madi- son toward the end of February, compelled Hamilton to take up the task if the series was to be continued, and he wrote Nos. 59-61, on the control of the Union over the federal elec- tions, three numbers that could have come after 62 and 63 more logically than before them.

These considerations make it somewhat more probable that these numbers were written by Madison than by Hamilton, but the weight of the probability must be left to the judg- ment of the reader.

In examining the internal evidence, limitations of space as well as lack of indications will prevent the treatment of the numbers with equal detail, but as they are attributed en bloc to either Madison or Hamilton by most of the lists, satisfac- tory proof that any two or three of them were written by one of the two will go far to turn the scale in his favor for the rest. I shall, therefore, present the evidence as fully as pos- sible in regard to some numbers, and only the most striking indications in regard to the rest.

Number 49.

No. 49 continues the discussion on the separation of the powers begun in No. 48, and takes for special considera- tion a protective device proposed by Jefferson in his Notes on Virginia, providing for any two departments to unite in calling a convention in case the third should encroach on the Constitution.

This project of Jefferson's was known to Madison in August, 1785.^ By May, 1786, he had in his possession a copy of the privately printed edition of Jefferson's NotesJ^ The first published edition of the Notes came out in London early in August, 1787, ^ and it was from this edition that Madison quoted in the preceding number of The Federalist

1 Writings of James Madison, I, 183. To be cited as Writings.

2 Ihid., 234.

8 Ford's Jefferson's W<yrlcs, III, 79.

(No. 48). The only place where any one could learn of this constitutional device of Jefferson's was in the appendix to some of the editions of his Notes. Madison had known of it for years and owned two of these editions of the Notes, A copy of Jefferson's Notes was among Hamilton's possessions, but it was the Philadelphia edition of 1788,^ which was not published until Jan. 23, 1788,2 in Philadelphia, while No. 49 of The Federalist was printed in New York, Feb. 5.

If Hamilton wrote Nos. 49-58, the decision that Madison's contributions for the present should cease with No. 48 must have been reached at least some days earlier than Feb. 5, because 49 and 50 are papers based on some research. It is, then, while not impossible, extremely unlikely that a book published in Philadelphia not earlier than Jan. 23 should have reached New York and come into Hamilton's possession soon enough for him to select from it the text for the first of a new series of papers which appeared Feb. 5. On the other hand, Madison having quoted extensively in No. 48 from the Notes, nothing would be more natural than for him to discuss Jefferson's project, thus freshly reminded of it.

In the text of this essay, p. 314,^ Jefferson's device is referred to "as a palladium to the weaker department of power against the invasion of the stronger." In No. 43, p. 275, Madison writes : " Equality of suffrage in the Senate was probably meant as a palladium to the residuary sover- eignty of the States." In 1792, he said of "the partitions and internal checks of power" that "they are neither the sole or the chief palladium of constitutional liberty; "* and in his last message he referred to the Constitution as the "palla- dium" of the American people.^ I have not noted "palla-

1 J. C. Hamilton, The Federalist, cxi. The copy was in Mr. J. C. Hamilton's possession.

2 It is first announced in the Pennsylvania Packet of Jan. 25, as " published this day." That it was not actually on the market for a few days is not unlikely, if we may judge from the practice of publishers to-day.

8 The references are to Lodge's edition.

4 Writings, IV, 473.

s In the paragraph before the last.

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dium " in any of Hamilton's writings that I have read. The use of the term "constitutional charter," p. 314, is common in Madison, e.g, cf. "The citizens of the United States have peculiar motives to support the energy of their constitu- tional charters," IV, 468 (1792); "forced constructions of the constitutional charter," IV, 506 (1798), IV, 520, "as laid down in the constitutional charter," IV, 391 (1835). This expression I have not noted in Hamilton's discussions. The same general proposition of frequently referring constitu- tional questions to the people Madison criticises in a letter to Jefferson in February, 1790. The similarity of the criticism is worth noting in this connection. The objections in No. 49 are, " 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 everything, ... in every nation the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side," p. 315. In his letter to Jefferson, Madison asks: " Would not a government so often revised become too un- stable and novel to retain that share of prejudice in its favor which is a salutary aid to the most rational government? " ^

It may be added that Chancellor Kent notes that: "Mr. Hamilton told me that Mr. Madison wrote 48 and 49, or from pa. 101 to 112 of Vol. 2d." ^ The pages, as given, show that the numbers are those of the collected editions and not the original numbers as printed in the journals.

Number 50.

This number discusses the propriety of periodical instead of occasional appeals to the people, and reviews the history of the Pennsylvania Council of Censors, of 1783-84. In regard to this institution and Jefferson's scheme criticised in No. 49, John C. Hamilton writes: "As to this, as well as to the scheme of Jefferson, an analogy in Hamilton's writings

1 Madison's Writings, I, 504. ^ Dawson's The Federalist, cxl.

122

— for the same reason, that no such project had come before him — was not to be expected."^ The question naturally arises, then, "Why should Hamilton select this unfamiliar topic for a number of ITie Federalist f " To Madison, on the other hand, the project was familiar. The results of its work form the subject of the latter part of No. 48, and he had dis- cussed this Council of Censors briefly as early as August, 1785, in his letter to John Brown, of Kentucky.^

Number 51.

In No. 51 the writer continues the discussion of the pre- ceding numbers as to the proper means "of maintaining in practice the necessary partition of power among the several departments." This line of thought was a favorite one with Madison.

Number 61.

" Second. It is of great im- portance 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 in- terests necessarily exist in dif- ferent classes of citizens. If a majority be united by a com- mon interest, the rights of the minority will be insecure." Cf. Madison's Notes on the Confederacy, Writings^ I, 325- 26, April, 1787.

"Whilst all authority in it will be derived from and de-

Mddison,

(Objects of the Senate.) " These were, — first, to pro- tect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led." Debates, 2^. (June 26.) . . . "as different interests neces- sarily result from the liberty secured, the major interest might, under sudden impulses, be tempted to commit injus- tice on the minority. " Debates, ibid. See also letter to Jeffer- son giving an account of the Convention, Oct. 1787. Writ- ings, I, 353.

1 J. C. Hamilton's edition of The Federalist^ cxiii.

2 Writings, I, 183.

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123

Number 51.

pendent 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 dan- ger from interested combina- tions of the majority " ^ (pp. 325-26).

"In a free government the security for civil rights must be the same as that for relig- ious 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 j and this may be presumed to depend on the extent of country and num- ber of people comprehended under the same government " ^ (p. 326).

Madison,

" The Society becomes broken into a greater variety of inter- ests and pursuits of passions which check each other." Writings^ I, 327, from Notes dh the Confederacy, April, 1787.

"The only remedy is, to enlarge the sphere , and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest sepa- rate from the whole. " Debates, 119, June 6, 1787. " In a large society the people are broken into so many interests and par- ties that a common sentiment is less likely to be felt and the requisite concert less likely to be formed by a majority of the whole." Letter to Jefferson, Oct. 24, 1787, Writings, I, 352.

"The same security seems requisite for the civil as for the religious rights of individ- uals. If the same sect form a majority, and have the power, other sects will be sure to be depressed. Divide et impera is, under certain qualifications.

1 Madison uses the phrase " interested combinations of the majority," in Writ- ingSf IV, 23, 1829, and the phrase "interested majority*' in The Federalist, 59.

2 Cf . also Madison's remarks in the Virginia Convention. " But the United States abound in such a variety of sects that it is a strong security against re- ligious persecution." Elliot's Debates, II I, 330.

Number 51, Madison,

"This view of the subject shows that in the exact pro- portion as the territory of the Union may be formed into more circumscribed Confederacies, or States, oppressive combina- tions of a majority will be facilitated."

" 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 ma- jority of the whole society could seldom take place on any other principles than those of justice and the general good."

"It is no less certain than it is important, notwithstanding the contrary opinions which

the only policy by which a re- public can be administered on just principle." Letter to Jefferson, Writings^ I, 352-53, Oct. 24, 1787.

"It may be inferred that the inconveniences of popular States, contrary to the prevail- ing Theory, are in proportion not to the extent, but to the narrowness of their limits." Notes on the Confederacy, Writings, I, 327, April, 1787. "As in too small a sphere oppressive combinations may be too easily formed against the weaker party, so," etc. Let- ter to Jefferson, Oct. 24, 1787. "In the extended republic of the United States," . . . "greater variety of interests and pursuits of passions," for the rest see above, p. 123. " The only remedy is to enlarge the sphere, and thereby divide the community into so great a number of interests and parties that, in the first place, a ma- jority will not be likely at the same moment to have a com- mon interest separate from that of the whole or of the minority." Debates, p. 119, (June 6).

" It was incumbent upon us, then, to try this remedy, and with that view to frame a re

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Number 51, Madison.

have been entertained, that publican system on such a

the larger the society, provided scale and in such a form as will

it lie within a practical sphere, control all the evils which have

the more duly capable it will been experienced." Debates^

be of self-government." ^ p. 119.

The five numbers, 47-51, form a continuous discussion, complete in itself, of the true meaning of the maxim of the separation of the powers, its applicability to the United States, etc. Madison's right to be regarded as the author of the first two has never been disputed. The evidence that he also wrote No. 51 has been laid before the reader. It seems to me to establish the proof of his authorship as certainly as an undisputed assertion could. The evidence in the case of Nos. 49 and 50 is confirmatory. The significance of this evidence can be fairly weighed only by a comparison of it with that which has been put forward in behalf of Hamilton in J. C. Hamilton's edition of The Federalist^ pp. cx-cxv,^ and for No. 51 on p. cxiv.

The next group of essays, Nos. 52-58, take up in detail the structure of the House of Representatives as framed by the Constitution. The internal evidence in regard to the authorship of these numbers, so far as I have been able to detect it, is much less in amount. Some of it, however, is striking.

Number 52. Madison.

"The definition of the right "The right of suffrage is

of suffrage is very justly re- certainly one of the fundamen-

garded as a fundamental arti- tal articles of republican gov-

cle of republican government, ernment, and ought not to be

It was incumbent on the con- left to be regulated by the

vention, therefore, to define and Legislature." Debates, ^. 4:10,

1 Cf. Madison in Federalist, No. 10, 60.

2 It is but fair to J. C. Hamilton to remember that when he made his argu- ment in favor of Hamilton's authorship Madison's Writings had not been pub- lished. He had examined some of them in MS., but not thoroug hly enough.

Number 52. Madison.

establish this right in the Con- stitution. To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned" (pp. 327^28).

Aug. 7 (Hamilton was absent at that time).

Number 53. Subject : Frequency of Elections.

Number 63.

In support of biennial elec tions it is urged that time will be necessary for the legislator to gain "a certain degree of knowledge of the subjects on which he is to legislate " (p. 335).

"Some knowledge of the affairs, and even of the laws of all the States, ought to be pos- sessed by the members from each of the States " (p. 336).

"The distance which many of the representatives will be obliged to travel, and the ar- rangements 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 " (p. 338).

Madison.

"Three years will be neces- sary, in a government so ex- tensive, for members to form any knowledge of the various interests of the States to which they do not belong, and of which they can know but little, from the situation and affairs of their own; one year will be almost consumed in preparing for and traveling to and from the seat of national business." Debates^ June 12, p. 151.

Madison argued that annual elections wouid be extremely inconvenient for the represent- atives. "They would have to travel seven or eight hundred miles from the distant parts of the Union." Debates, June 21, p. 216.

The amount of evidence in regard to No. 53 is not great, but this is to be noted in regard to its character. Two of the most important arguments in No. 53 for biennial rather than

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annual elections are arguments advanced by Madison in the Convention in favor of triennial elections. Hamilton partici- pated in the discussion, June 21 (p. 217). Like Madison, he favored triennial elections. Of the five points that he made in his speech, not one is mentioned in No. 53. If Ham- ilton wrote No. 53 he did not repeat a single one of five argu- ments which seemed good to him six months before, but devoted himself to an elaboration of the points made by Madison. It may be remarked in addition that one of the so- called Hamilton lists, that of Chancellor Kent, attributes No. 53 to Madison.

Number 54.

As additional bits of external evidence, not recorded by previous writers, it may be remarked that Madison in a letter, in 1819, casually referred to No. 54 as expressing his views, thus implying that he wrote it;^ and that in the Virginia Constitutional Convention of 1829 he publicly asserted his authorship of the number. ^

Again, it is to be noted that Hamilton, in the Benson list and in the list copied at his own request by J. C. Hamilton, did not claim No. 54 for himself, but assigned it to Jay.^

1 " For the grounds on which three-fifths of the slaves were admitted into ratio of representation, I will, with your permission, save trouble by referring to No. 54 of The Federalist." Letter to Robert Walsh, Nov. 27, 1819. Writings, IV, 154.

2 " Mr. Madison then rose and said that, although he was not desirous to take part in this discussion, yet under all the circumstances he was, perhaps, called on to state, that the paper in question was not written by Mr. Hamilton, or Mr. Jay, but by the third person connected with that work." Debates of the Virginia State Convention, 1829-30, 188.

^ J. C. Hamilton's edition, xcvii. In the 1810 edition, the first in which the authorship of the individual numbers was indicated, the Benson list is followed, except in the one particular, that No. 54 was assigned to Hamilton and not to Jay. No. 64, also, is assigned to Hamilton. As the assignments in this edi- tion were from a private memorandum in his own [i. e., Hamilton's] handwriting, Mr. Lodge conjectured that possibly there might have been still another list " of which nothing is now known." This conjecture is established by the statement of Mr. Charles Fenton Mercer in the Virginia Convention of 1829 in regard to the authorship of No. 54. Mr. Mercer said : " This volume, the third of an edition of Hamilton's works, the editor of which, he supposed, had obtained his

It may be said, of course, that he intended in that list to write 64, but as a matter of fact he did not assign 54 to himself, and whether he intended to write 64 is open to most serious doubt. In the last number of the Camillus papers, 1794,^ he quotes from Nos. 42 and 64 of The Federalist and appends this note : " It is generally understood that two persons were concerned in the writing of these papers, who, from having been members of the Convention, had a good opportunity of knowing its views — and were under no temptation at that time in this particular to misrepresent them." If Hamilton, in 1794, remembered that Jay ^ wrote No. 64, this note was highly disingenuous ; but there is no reason to suspect Hamil- ton of such disingenuousness. Therefore in 1794 Hamilton attributed 64 either to himself or to Madison.^ That he attributed it to himself is made practically certain by his not attributing it to Madison in the Benson list. It seems fair to conclude, therefore, that in attributing 54 to Jay in that list and the list copied by J. C. Hamilton, Hamilton did not make a mere clerical error, but consciously disclaimed writ- ing 54.

This number consists of a defence of the compromise over the question whether slaves were population or property, by which it was settled that three-fifths of the slaves should be enumerated in determining the representative population. For rhetorical purposes the argument is put in the mouth of a Southerner. That the writer was familiar with the discus- sion in the Convention seems almost certain from the turn he gives to his argument, but Hamilton was absent from the Convention during the repeated discussions of this compro- mise, while Madison was there and participated in them.

For example, Mr. Patterson of New Jersey, in the Con- key to the names of the authors of Publius from a manuscript of Mr. Hamilton which he saw many years ago, in the possession of the late Richard Stockton, an eminent statesman of New Jersey." Virginia Debates, 1829-30, 188.

1 Works, Y, 320-21.

2 Jay was not a member of the Convention.

8 That Hamilton did at one time attribute No. 64 to himself seems clear from the 1810 edition. vention, raised this objection: "Has a man in Virginia a number of votes in proportion to the number of his slaves? and if negroes are not represented in the States to which they belong, why should they be represented in the general government?" (Debates, p. 314.)

This was not one of the common criticisms, and the following passage in No. 54 seems like a distinct echo of it: "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?" (Fed., p. 341).

Number 54.

"We have hitherto (i. e. in this defense) 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" (p. 342).

Madison.

"In a general view I see no reason why the rights of property, which chiefly bears the burden of Government and is so much an object of legislation, should not be respected as much as personal rights in the choice of Rulers." (Writings, I, 181. Letter to John Brown, Aug. 23, 1785.) "This middle course reconciles the two cardinal objects of government, the rights of persons and the rights of property." Ibid., 187.

The evidence in regard to the next four numbers is scanty and ambiguous. They take up questions which Madison did not discuss in his letters and speeches in much detail, and which Hamilton did discuss in the New York Convention. The questions, too, were the most obvious ones concerning the constitution of the House of Representatives, and the arguments advanced in these four numbers cover the ground

pretty completely. Therefore if Madison wrote them Hamil- ton could hardly have gone over these questions without using some of these arguments. They would be familiar to him from his recent proof reading of the second volume of The Federalist published in May. That he did use arguments in his speeches in the New York Convention contained in Madison's numbers renders it a probable hypothesis that he might have done so more extensively. Chancellor Kent re- marked upon the similarity between the argument of the speeches and of 27ie Federalist. Such a use of arguments first drawn up by Madison could hardly have been avoided and would have been perfectly legitimate. Campaign material once published is regarded as common property for other advocates to use. In fact, if the external testimony on both sides were not substantially in agreement in assigning the ten essays to either one or the other in a body, and if Hamilton's speeches in the New York Convention had antedated these numbers, the internal evidence would have pointed to Ham- ilton as their probable author. Since, however, his speeches were later than these essays, the internal evidence must be ambiguous.

Number 55.

The subject of this essay is the ratio of representation; Hamilton was absent from the Convention while the subjects of Nos. 55 and 5Q were under discussion.

Number 55. Madison.

" The ratio between the rep- " The representatives must

resentatives and the people be raised to a certain number

ought not to be same where in order to guard against the

the latter are very numerous as cabals of a few. . . . They

where they are very few." must be limited to a certain

"... The truth is, that in all number in order to guard

cases a certain number at least against the confusion of a

seems to be necessary to secure multitude. " Federalist, p. 57.

the benefits of free consultation ^^I agree that after going

THE AUTHORSHIP OF THE FEDERALIST 131 Number 55. Madison.

and discussion, and to guard beyond a certain point, the

against too easy a combination number may be inconvenient;

for improper purposes ; as, on ... but it is necessary to go to

the other hand, the number a certain number in order to

ought at most to be kept secure the great objects of rep-

within a certain limit in order resentation. Numerous bodies

to avoid the confusion and in- are undoubtedly liable to some

temperance of a multitude. In objections, but they have their

all very numerous assemblies, advantages also; if they are

of whatever character com- exposed to passion and fermen-

posed, passion never fails to tation, they are less subject

wrest the sceptre from reason," to venality and corruption."

pp. 346-47. (Cf. No. 49, Register of Debates, II, 185

"The passions, therefore, not (Aug. 14, 1789). the reason, of the public would sit in judgment," p. 318.)

No. 55 does not refer to the prospects of the rapid enlarge- ment of the House by the accession of new States, a fact which Hamilton emphasized in meeting the objections that the House was too small. ^ It had been urged that the Presi- dent would corrupt now the Senate and now the House. The reply in No. 55 is that the Constitution has rendered the members of Congress ineligible " to any civil offices that may be created, or of which the emoluments may be increased during the term of their election," p. 350. Hamilton met this argument by asserting that there would be at the President's disposal few offices " whose respectability can in any measure balance that of the office of Senator." I, 466.

Number BQ.

The subject of this paper is that the House will be " too small to possess a due knowledge of the interests of its con- stituents," p. 350. In No. 35 (by Hamilton), published Jan. 8, in discussing taxation, the writer says in regard to this

1 Works, I, 426. objection to the powers of the House: "I reserve for another place the discussion of the question which relates to the sufficiency of the representative body in respect to numbers," p. 203. This passage, occurring in the next to last essay before Madison, was to discuss the actual work of the Convention, falls in line with my conjecture that the whole of the discussion of the Constitution and its fitness to American conditions was originally assigned to Madison.

To meet the objection that the representatives would not have adequate knowledge, the writer of No. 66 says:—

Number 56.

"Divide the largest state into ten or twelve districts, and it will be found that there will be no peculiar interests in either which will not be within the knowledge of the representative of the district" (pp. 351-52).

Madison.

In the Virginia Convention Madison said: "Could not ten intelligent men chosen from ten districts from this State lay direct taxes on a few objects in the most judicious manner? Can any one divide this State into ten districts so as not to contain men of sufficient information?" Elliot, III, 253-54.

Hamilton, in the New York Convention, said: "The natural and proper method of holding elections will be to divide the State into districts in proportion to the number to be elected. This State will consequently be divided at first into six. One man from each district will probably possess all the knowledge the gentlemen can desire." (Elliot, I, 434.)

It will be remembered that the Constitution assigned in the beginning ten representatives to Virginia and six to New York. Hamilton, in the New York Convention, illustrates the adequacy of the representation by supposing the division of the State into six districts, and Madison does the same in the Virginia Convention by supposing Virginia to be divided into ten districts. The writer of No. 56, in addressing the people of New York, supposes the largest State divided into ten districts, etc. If Hamilton wrote 56, why should he take

THE AUTHORSHIP OF THE FEDERALIST 133

Virginia as an example in February and New York in July ? He might do so, of course, but there is a certain natural- ness in a Virginian taking the largest State — his own State — as the extreme example, even though addressing New Yorkers, while the most natural example for a New Yorker, as well as the most directly pertinent, would be New York.

Both Hamilton and Madison remarked upon the assistance that would be derived from State systems of taxation, etc. The writer of bQ says, after a similar remark: "A skiKul individual in his closet with all the local codes before him might compile a law on some subject of taxation for the whole Union," p. 352. Madison, in No. 37, refers to the lack in the Constitution of " the symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on Constitution planned in his closet or in his imagination," p. 221. The writer of 53 (Madison?) says, "some portion of this knowledge may no doubt be acquired in a man's closet," p. 337. The closing paragraph of No. bQ cites the experience of Great Britain, " which presents to mankind so many polit- ical lessons, both of the monitory and exemplary kind" (p. 354). "Monitory" is almost a favorite word with Madison. I have noted the following instances : " Monitory examples," IH, 244; "monitory reflection," IV, 334; "In- structed by these monitory lessons," IV, 424; and, in The Federalist^ No. 20, p. 118, "this melancholy and monitory lesson of history." In referring to the experience of Great Britain the writer cites Burgh's Political Disquisitions, Madison was reading Burgh just about this time, for in his " Additional Memorandum for the Convention of Virginia in 1788, on the Federal Constitution," he quotes Burgh on the union between England and Scotland. ( Writings^ I, 392, note b.) I have met with no reference to Burgh in Hamilton's writings.

Number 57.

No. 57 deals with the charge that the " House of Repre- sentatives " will be taken from that class of citizens which

134

will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggradizement of the few," p. 355. This objection, which the writer styles "perhaps the most extraordinary" of "all the objections which have been framed against the federal Constitution," was prominently in Madison's mind at this time (Feb. 19). A fortnight earlier he sent Washington a copy of a letter from Rufus King, which announced that " distrust of men of property or education " was having a more powerful influence in Massachusetts " than any specific objections against the Constitution." I, 372. No. 57 goes over ground covered in part by No. 52 (Feb. 8), and it may be conjectured that the evident strength of this objection invited a special essay, and the argument at first adheres rather closely to the form of the objection as it appears in Madison's letter of the same date to Jefferson on the nature of the opposition in Massachusetts.

Number 57.

" 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 unpropi- tious fortune " (p. 356) ; and again, " Who are to be the ob- jects of popular choice? Every citizen whose merit may recom- mend 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 disap-

Madison.

The opposition in Massachu- setts was made up "partly of ignorant and jealous men who had been taught, or had fan- cied that the Convention at Philadelphia had entered into a conspiracy against the liber- ties of the people at large, in order to erect an aristocracy for the rich, the well horn, and the men of education." Writ- ings, I, 377. (Letter to Jeffer- son, Feb. 19.)

THE AUTHORSHIP OF THE FEDERALIST

135

Number 57.

point the inclination of the people" (p. 356.)

" 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 pur- sue the common good of the society" (p. 356).

"No person is eligible (in Great Britain) as a representa- tive 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" (p. 360).

Madison.

" The objects to be aimed at were to fill all offices with the fittest characters, and to draw the wisest and most worthy citizens into the legislative service." Debates, 226. "a body, in the government suffi- ciently respectable for its wis- dom and virtue." Ibid., 243.

" In Great Britain no one can be elected to represent a county without having an estate of the value of six hundred pounds sterling a year; nor to repre- sent a corporation without an annual estate of three hundred pounds." Virginia Debates, Elliot, III, 395.

The form of this statement in No. 57 corresponds so closely with that of Burgh I, 850 and II, 271, that it seems altogether probable that it was drawn from that source like the similar material on p. 354. As was before remarked, Madison was studying Burgh at this time.

Number 58.

No. 58 combats the objection that the House will not be increased in size as the population grows. Hamilton dis- cussed the same question in the New York Convention, I, 426, in a similar way. Like the author of No. 58, he remarks that the large States will control the House and consequently will favor augmentations of its numbers still further to increase their effective influence. An additional argument is presented in No. 58, to which there is nothin g similar in

Hamilton's speech. It is that the new States, although small at first, will " 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 num- ber of inhabitants." So the large States in the House can join forces with the new States in the Senate " to make reap- portionments and augmentations " at the same time, p. 36-4.

Madison wrote Jefferson in a somewhat similar vein in March, 1787, on changing " the principle of Representation in the federal system '* from one of equality to one proportioned to population. " A majority of the states conceive that they will be the gainers by it. It is recommended to the Eastern States by the actual superiority of their populousness, and to the Southern by their expected superiority; and if a majority of the larger states concur, the fewer and smaller states must finally bend to them," I, 286. On p. 365 of this number occurs a favorite expression of Madison's. The author sees in the history of England " an infant and humble representa- tion of the people gradually enlarging the sphere of its activity and importance." Compare "to enlarge the sphere as far as the nature of the government would admit," Debates, 118; "the only remedy is, to enlarge the sphere," Ibid., 119; "an enlargement of the sphere," I, 327; "the Federal principle which enlarges the sphere," IV, 21; "enlarging the sphere," IV, 327 and 328; "enlarge the sphere of liberty," IV, 483; " enlargement of the sphere," i>e5a^gs, 528; "extending the sphere," Federalist, 309; "extend the sphere," Federalist, 58. Hamilton uses "extending the sphere," in Federalist, 48, and "enlargement of the orbit," p. 47, but the metaphor is by no means as common as with Madison, and the exact phrase "enlarge the sphere " I have not noted in Hamilton.

The final paragraph of this number seems like an echo of a discussion in the Convention, Aug. 10. The subject is the proper quorum for the House, and there is noticeable simi- larity of language. As against a quorum larger than a ma

THE AUTHORSHIP OF THE FEDERALIST

137

jority, it was urged in the Convention that it would tempt the minority "to extort, by threatening a secession, some unjust and selfish measure." Debates^ p. 498. This clas- sical use of the word "secession " occurs five times in the dis- cussion in three pages. It is therefore a plausible conjecture that the use of the phrases " extort unreasonable indulgences " and "the baneful practice of secession" (p. 368) suggested itself to the writer of 58 in discussing this question, on account of the association of ideas. Hamilton was not present at this discussion.

No. 62 continues directly the discussion in 58 on the char- acter and utility of the two houses of Congress.

Number 62. Madison.

"... it will be proper to inquire into the purposes which are to be answered by a Senate " (p. 387).

"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 unfaith- ful to their important trust" (p. 387).

"In this point of view, a senate as a second branch of the legislative assembly, dis- tinct from and dividing the power with a first, must be in all cases a salutary check on the government" (ibid.).

"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

"... it will be proper to take a view of the ends to be served by it" [i. e. , a Senate]. Debates, 241.

" A people deliberating . . . on the plan of government most likely to secure their happi- ness, would first be aware that those charged with the public happiness might betray their trust." Debates, 242.

"An obvious precaution against this danger would be to divide the trust between different bodies of men, who might watch and check each other." Debates, ibid.

"Another reflection . . . would be that they themselves, as well as a numerous body of representatives, were liable to err also from fickleness and passion." Debates, ibid.

" The use of the Senate is to consist in its proceeding with

138

Number 62.

violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions " (pp. 387-88).

"... a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous" (p. 388).

" It ought, moreover, to pos- sess great firmness, and con- sequently ought to hold its authority by a tenure of con- siderable duration " (p. 388) .

"Another defect to be sup- plied by a senate lies in a want of due acquaintance with the objects and principles of legis- lation. 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 pub- lic occupation to a study of the laws, the affairs, and the com- prehensive interests of their country, should, if wholly left to themselves, escape a variety of important errors in the exer-

Madison.

more coolness, with more sys- tem, and with more wisdom, than the popular branch. En- large their number, and you communicate to them the vices which they are meant to cor- rect." Debates, 126.

"A necessary fence against this danger would be to select a portion of enlightened citi- zens whose limited number and firmness may seasonably inter- pose against impetuous coun- cils." Debates, 242.

"The members (of the Sen- ate) ought therefore to derive a firmness from the tenure of their places." Remarks on Jefferson's Draught of a Con- stitution for Virginia, Writ- ings, I, 185.

" It would next occur to such a people that they themselves were liable to temporary errors, through want of information as to their true interest; and that men chosen for a short time, and employed but a small portion of that in public affairs, might err from the same cause." Debates, 242.

"It [the Senate] ought to supply the defect of knowledge and experience incident to the other branch; there ought to be time given, therefore, for attaining the qualifications necessary for that purpose."

THE AUTHORSHIP OF THE FEDERALIST

139

Number 62.

cise of their legislative trust " (p. 388).

"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 admonitions to the people of the value of those aids which may be expected from a well-constituted Senate?" (p. 388).

"A good government im- plies 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 gov- ernments too little attention has been paid to the last" (p. 389).

"From this change of men must proceed a change of opin- ions; and from a change of opinions a change of meas- ures " (p. 389).

Madison.

Eemarks on Jefferson's Draught, Writings, I, 185.

"Try the codes of the sev- eral states by this test, and what a luxuriancy of legisla- tion do they present. ... A review of the several codes will show that every necessary and useful part of the least volu- minous of them might be com- pressed into one-tenth of the compass and at the same time be tenfold as perspicuous." Notes on the Confederacy, April, 1787, Writings, I, 324.

" The want of fidelity in the administration of powers hav- ing been the grievance felt under most governments, and by the American States them- selves under the British govern- ment, it was natural for them to give too exclusive an atten- tion to this primary attribute." Letter to John Brown, August, 1785, Writings, I, 177.

" A frequent change of men will result from a frequent return of elections ; and a fre- quent change of measures from a frequent change of men." No. 37 of The Federalist, p. 218.

"The internal effects of a Cf. par. 1 above, also what mutable policy are still more follows it on "mutability of

140

Number 62,

calamitous. It poisons ^ the blessings 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 pro- mulgated, or undergo such incessant changes that no man, who knows what the law is to- day, can guess what it will be to-morrow" (p. 340).

"Another effect of public instability is the unreasonable advantage it gives to the saga- cious, the enterprising, and the moneyed few over the indus- trious and uninformed mass of people. Every new regulation concerning commerce or reve- nue, or in any manner affecting the value of the different spe- cies of property, presents a new harvest to those who watch the change, and can trace its consequences."

"But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of

Madison.

laws : " " This evil is inti- mately connected with the former, yet deserves a distinct notice, as it emphatically de- notes a vicious legislation. We daily see laws repealed or superseded before any trial can have been made of their merits, and even before a knowledge of them can have reached the remoter districts within which they were to operate." Notes on the Confederacy, April, 1787, Writings, I, 324.

" In the regulations of trade, this instability becomes a snare not only to our own citizens, but to foreigners also," ibid.

" The sober people of Amer- ica . . . have seen with regret and indignation that sudden changes and legislative inter- ferences, 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." The Federalist, No. 44, 278.

"By correcting the infirmi- ties of popular government, it will prevent that disgust against that form which may

1 A favorite metaphor with Madison. Cf. The Federalist, 81 and 286 ; also Writings, II, 126 and 600 ; III, 360, and IV, 206.

THE AUTHORSHIP OF THE FEDERALIST 141

Number 62, Madison.

the people towards a political otherwise produce a sudden

system which betrays so many marks of infirmity and disap- points so many of their flatter- ing hopes "^ (p. 391).

transition to some very differ- ent one. . . . The real danger to republican liberty has lurked in that cause." Kemarks on Jefferson's Draught, Writings, I, 185-86.

Number 63.

Number 63,

Madison.

The first topic is the need of a due sense of national character.

"Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently pos- sessed 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 in- corporated with the reputation and prosperity of the com- munity. The half-yearly rep- resentatives of Ehode Island would probably have been little

Motives restraining a major- ity from injustice.

" Secondly. Respect for character. However strong this motive may be in individ- uals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in pro- portion to the number which is to share the praise and the blame. ^ Besides, as it has reference to public opinion, which, within a particular society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the society will be little respected by the people at large of any country. Individuals of extended views and of national pride may bring

1 Cf. Letter to Edmund Pendleton, Feb. 24, 1787, Writings, I, 230; cf. also 325, 333, 350, and 445, and The Federalist, 56, for similar expressions of the same idea.

• " Respect for character is always diminished in proportion to the number

among whom the blame or praise is to be divided." Madison, Z)e6afes, 118.

142

Number 63.

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 " (p. 392).

"... such an institution may be sometimes necessary as a defence to the people against their own temporary errors and delusions" (p. 393).

" 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" (p. 394). The writer makes a cross reference to No. 10 [by Madi- son] for an elaboration of this theory.

The Senates of Sparta, Eome, and Carthage.

"In each of the two first there was a senate for life" (p. 394).

Madison.

the public proceedings to this standard, but the example will never be followed by the mul- titude. Is it to be imagined that an ordinary citizen or even Assembly man of Rhode Island, in estimating the policy or paper, ever considered or cared in what light the measure would be viewed in France or Holland, or even in Massa- chusetts or Connecticut?" Notes on the Confederacy, April, 1787, Writings, I, 326.

" It would next occur to such a people, that they themselves were liable to temporary errors." Debates, 242.

" It may be inferred that the inconveniences of popular states, contrary to the pre- vailing theory, are in propor- tion, not to the extent, but to the narrowness of their limits." Notes on the Confederacy, Writings, I, 327. Cf. also The Federalist, No. 10, p. 6^,

" Sparta.

2 Kings, 28 senators. Senate. I. For life." Additional Memorandum for the Convention of Virginia in 1788 on the Federal Constitu- tion. Writings, I, 394.

THE AUTHORSHIP OF THE FEDERALIST

143

Carthage.

"... a smaller council, drawn out of the senate " (p. 395).

"Lastly in Sparta we meet with the Ephori, and in Eome with the Tribunes, two bodies, small indeed in numbers, but annually elected by the whole body of the people " (p. 396).

Carthage.

"Senate . . . must have been great since the 100 drawn out of it." Ibid.f 395.

Sparta.

" Ephori, chosen annually by the people," etc. Addi- tional Memorandum, etc., I, 394.

"... liberty may be endan- gered by the abuses of liberty, as well as by the abuses of power: . . . and that the for- mer, rather than the latter, are apparently most to be apprehended by the United States" (p. 397).

" It is of infinite importance to the cause of liberty to ascer- tain the degree of it which will consist with the purposes of the society. An error on one side may be as fatal as on the other. Hitherto, the error in the United States has lain in the excess." Letter to Mazzei, Dec. 10, 1788, Writ- ingSj I, 445.

"In Sparta, the Ephori, the annual representatives of the people, were found an over match for the senate for life, continually gained on its au- thority and finally drew all power into their own hands " (p. 399).

"To these examples might be added that of Carthage, whose Senate, according to the testimony of Poly bins, ^ instead of drawing all power into its

" Ephori, chosen annually by the people and concurred in their behalf with kings and Senate, over both of whom they had authority. They . . . in fine, directed every- thing." Additional Mem., Writings, I, 394.

Carthage.

" Whilst Senate retained its authority, says Polybius,^ wis- dom and success marked every- thing. People at first gave

1 I have not noticed any reference to Polybius in Hamilton. Besides the pas- above, Madison quotes Polybius in Writings, I , 298, 347.

Carthage. Carthage.

vortex,^ had at the commence- way to Senate; at length, in- ment of the second Punic War toxicated by wealth and con- lost almost the whole of its quests, they assumed all original portion" (p. 399). power." Additional Mem.,

1788, Writings, I, 399.

The evidence in favor of Madison's authorship of Nos. 62 and 63 is, it seems to me, absolutely decisive. Jay's author- ship of No. 64 was finally established by finding a draft of the essay in his papers. It will hardly be denied that a consider- able part of Nos. 62 and 63 has been found in Madison's writ- ings. The evidence in regard to Nos. 51 and 53 is also convincing; and that in the case of the others is confirma- tory. The value of the evidence can be best appreciated by comparing it with that advanced in Hamilton's favor by his son. 2 It will also be remembered, in view of the direct con- flict of testimony between Hamilton and Madison, that it is a question of memory and not of veracity. If the conjecture referred to on p. 117 be regarded with favor, that is, that Hamilton, in haste and agitation, wrote "37 to 48 inclusive byM." instead of "37 to 58," then his error in regard to Nos. 62 and 63 could easily be accounted for. He would in any case recollect the salient fact that he again took up the writing of the essays because Madison had to go to Virginia. Madison left New York March 4. Nos. 59, 60, and 61, by Hamilton, were published Feb. 22 and 26. Hamilton might easily forget that Madison contributed two papers after he himself had begun to write again, just as he unquestionably did forget that Jay contributed No. 64 at that same time. That Hamilton's memory was at fault where his list differed from Madison's seems to have been the final conclusion of an exceptionally competent and friendly critic. Chancellor Kent, of New York, who was not only a friend of Hamil-

1 A favorite metaphor with Madison. I have not noticed it in Hamilton's writings. For other examples in Madison's works, see Federalist^ 309 ; Debates^ 372 and 399, and Writings, II, 465, and III, 246.

2 See J. C. Hamilton's edition of The Federalist, cx.-cxxxii.

THE AUTHORSHIP OF THE FEDERALIST 145

ton's, but had listened to him in the New York Convention, and many times later in court, received from him once in Albany the assurance that the designation of the authorship of The Federalist in his possession was correct. Later, Chancellor Kent pasted a copy of the Washington Gazette list in his copy of The Federalist on a fly leaf opposite the Hamil- ton list, and added: "Mem". I have no doubt Mr. Jay wrote No. 64 on the Treaty Power. He made a speech on that subject in the N. Y. Convention, and I am told he says he wrote it. I suspect, therefore, from internal Ev[idence] the above to be the correct List, and not the one on the opposite Page."^ The Washington Gazette list coincides with Madison's own list except in regard to Nos. 17, 20, and 21. It is clear, then, that Chancellor Kent, in spite of Ham- ilton's assurance in regard to Nos. 50, 51, 52, 54-58, 62, and 63,2 ^as led by the weight of internal evidence to suspect that the Madison lists assigned the authorship correctly. This change took place before the publication of Madison's Writings and perhaps before the publication of the Journal or the Debates, Such a change by one who was a friend of Hamilton and a careful student of The Federalist^ as well as a great lawyer, is significant.

1 Dawson's The Fcederalist, cxl.-cxli. ; J. C. Hamilton's edition, cxii, note. 3 His Hamilton list assigned 49 and 53 to Madison.

THE AUTHORSHIP OF THE FEDERALIST:

A REVIEW OF MR. PAUL LEICESTER FORD'S ARGUMENT

FEDERALIST:

A REVIEW OF MR. PAUL LEICESTER FORD'S ARGUMENT

In the Introduction to his edition of The Federalist^ Mr. Paul Leicester Ford offers a different solution from the one reached in the foregoing essay, and the method employed is also different. His conclusion is at variance with all the lists, while mine is in accord with Madison's testimony. The amount of evidence necessary to prove a conclusion contrary to the combined testimony of Hamilton and Madi- son is obviously much greater than that required to prove a case in harmony with the assertions of either one.

Mr. Ford begins by objecting to conclusions drawn from comparisons of language and thought. A general objection of this sort has little weight. Every piece of historical criti- cism must stand or fall on its own merits. Internal criti- cism may be applied in a rash or an ignorant fashion, but it must be met point by point. Mr. Ford has failed to examine my method with care, or he would not have made the com- parison about the Esprit des Lois, nor alleged that I quoted Madison's speeches in the Virginia convention to prove that

1 This part of Mr. Ford's Introduction, xxx.-xxxix, was first published in the American Historical Review in July, 1897, ostensibly as a reply to my essay in the April number, and was accompanied by the larger part of the present paper in the form of a running comment. It wiU be conceded, I think, that some of his assertions were proved absolutely to be mistaken, and that the basis of others was seriously undermined. Notwithstanding this, Mr. Ford reprinted his article nearly a year later in his edition of The Federalist without corrections or defence. As his edition will deservedly have a wide circulation and a long life, I have decided to reprint here my strictures on his discussion of the authorship of the disputed numbers. This will accoout for the form of the presen t article.

he wrote the disputed numbers. I did that but twice (pp. 132, 135) and, if those instances are examined critically, it will be seen that they were perfectly legitimate. All the other parallel passages except one from Madison are from his letters or memoranda written before The Federalist.

The next point that Mr. Ford makes is that Madison's opportunities for remembering the facts about the authorship of the disputed numbers were not as good as Hamilton's. That may be true as he puts the case, but Madison was a methodical man, and he may have kept a list from the begin- ning. However that may be, in the only case that can be tested with absolute certainty, that of the authorship of Nos. 18, 19, and 20, 1 have shown that Madison did remember the facts far more exactly than Hamilton. Mr. Ford offers no instance where it can be proved that Hamilton was more nearly right than Madison.

Mr. Ford next tries to establish the earliest dates of Madi- son's and Hamilton's lists, but his conclusions cannot be ac- cepted. In the first place it is an unsupported conjecture that Madison's list was no older than the date of the copy of The Federalist that he sent to Gideon in 1818, i, e., not ear- lier than 1799. Second, we have Madison's own assertion that his list was an early one, if not substantially a contem- porary one. He wrote Robert Walsh, in 1819, as follows: " If I have any interest in proving the fallibility of Mr. Ham- ilton's memory, or the error of his statement, however occa- sioned, it is not that the authorship in question is of itself a point deserving the solicitude of either of the parties; but because I had, at the request of a confidential friend or two, communicated a list of the numbers in that publication, with the names of the writers annexed, at a time and under cir- cumstances depriving me of a plea for so great a mistake in a slip of memory or attention." (Writings of James Madison, III, 126.) Again, in his letter to Paulding (1831), Madison says that his assignment, " if erroneous, could not be ascribed to a lapse of memory," but to a lack of veracity. He calls it " the distribution communicated by me at an early day to a

THE AUTHORSHIP OF THE FEDERALIST 151

particular friend, and finally to Mr. Gideon." Hamilton's lapse of memory he attributes partly to " the period of time,

not less than . years, between the date of the Federalist

and that in the memorandum." {Writings^ IV, 176-177.) All this is decisively against the unsupported hypothesis that Madison did not draw up his list until twelve years had elapsed.

Mr. Ford tries to fix the date of the earliest Hamilton statement of the authorship, that given to Chancellor Kent, by concluding that " as he is spoken of in the memoranda as 'General Hamilton,' it must have been made while he held that rank, or in the years 1798 or 1799." But the fact that Chancellor Kent calls Hamilton "General" fixes the date only in one direction, ^. e., Kent would not have called Ham- ilton " General " at a date prior to his holding that rank ; nor would he, on the other hand, cease to call him so after he had left the army. Such titles stick to men the rest of their lives. Dawson, for example, in his Introduction, styles Hamilton "General," but that does not indicate that Daw- son wrote in 1798 or 1799.

The passage just quoted from Madison's letter to Walsh gives the probable reason why he did not enter the discussion earlier.

In regard to Mr. Ford's next point, relating to the sub- division of the work, I will refer to my previous discussion of that matter (pp. 117-119).

Mr. Ford tries to show that it was his professional engage- ments that led Hamilton to suffer Madison to write twelve consecutive numbers, but Madison was early invited to take part, and the real question is not why he wrote so many after No. 37, but why he wrote so few in the first part (see above, p. 117). Jay did not write more because of his illness during that winter. Mr. Ford's parallel example in April is not well taken, for the reason that although no more numbers were published in the journals for over two months, the rest of the numbers were written in April or possibly earlier. May 4, Hamilton wrote Madison: "The second \i, e., volume of

Publius] will be out in the course of a week.'* (Writings, VIII, 183.) When the first volume was issued, March 22, the publishers announced: "The second is in the press." (Dawson, p. Iviii.) It is obvious that the last eight numbers were written and the second volume carried through the press at the time when Mr. Ford concludes that Hamilton suspended his labors.

Mr. Ford's argument from transitions and so-called breaks seems to me a very precarious one. In fact it breaks down just at the point where it ought to be strong. There is such a typical "break" at the beginning of No. 47, but as all the testimony is against a change of authorship at that point, he concludes that the "break" merely indicates the taking up of a new subject by the same writer, whereas at No. 52, the evidence being conflicting, the "break" indicates a new writer and not a new subject, although the subject is new. An examination of these transitions in general seems to me to show that they are not significant unless you know beforehand what they mean.

In assigning Nos. 49, 50, and 51 to Madison, Mr. Ford apparently does not realize that he raises Hamilton's certain errors to five (including 54 and 64), and proportionately strengthens Madison's testimony.

Mr. Ford next suggests a length -test, but if it is valid it counts against his conclusions in regard to Nos. 49-51 ; if he is right in these conclusions his length-test breaks down, for we have in that case four short papers from Madison in suc- cession. On the other hand Nos. 62 and 63 contain about 2,500 and 3,000 words.

Mr. Ford ignores the striking break in continuity between Nos. 61 and 62, where 62 obviously joins on to No. 58.

The evidence from references to English history is unfairly weighed, because the cases in No. 47 are omitted on the ground that it cannot be positively ascribed to Madison. The only evidence against the unanimous testimony of all the lists in regard to 47 is the extremely equivocal transition or "break" test. It is impossible to believe that Madison, who

THE AUTHORSHIP OF THE FEDERALIST 153

was one of the most careful students of history of the time, had to have his attention called by Hamilton to the utility of examples from English history. I have called attention to the fact that Madison was reading at this time Burgh's Dis- quisitions^ which are quoted in No. 56. Madison's Notes, being 'Notes of Ancient and Modern Confederacies,^ would not naturally contain facts about England.

In regard to No. 54, I will refer to the points made in my article, (p. 127). As the number is put into the mouth of a Southern statesman, whether Madison or Hamilton believed in the arguments is irrelevant; the only requirement is that the arguments should be such as a Southerner would use.

That Madison was " absolutely opposed " to property repre- sentation is asserted without evidence, and, in fact, is a mistake. He wrote in 1785: "In a general view, I see no reason why the rights of property, which chiefly bears the burden of government, should not be respected as well as personal rights' in the choice of rulers." (Writings, I, 181; also p. 129.)

In regard to the uncertainty expressed in No. 52 on the term of the Virginia assembly, it may be said that as " Publius" pretended to be a citizen of New York, that uncertainty might have been assumed as a natural touch for a New Yorker.

There is no praise for the House of Lords in No. 63. It is merely cited to prove that there is no danger to be feared from the organization of the Senate when an aristocratic body like the Lords has not been able to hold its own against the Commons.

The reference to the senate of Maryland, as far as it goes, points to Madison's being the author of No. 63, rather than Hamilton, In the Convention, Madison said of it: "In no instance had the Senate of Maryland created just suspicions of danger from it." Hamilton, on the other hand, said: "The Senate of Maryland has not been sufficiently tried." (Scott's ed. of the Debates, pp. 155 and 182; cf. also Madi- son's favorable opinions in his Writings, I, 177 and 186.)

The mention of local circumstances of New York State, etc., in Nos. 54 and 57 contains nothing beyond the ordinary

knowledge that an intelligent man would acquire in a few months' residence. Furthermore there are similar references to several other States in No. 57.

As for the insertion of an additional paragraph in No. 56 when it was republished in the edition of 1788, the conclu- sions Mr. Ford draws are by no means so sure as they seem to him. When I wrote my article I took it for granted that Lodge was right when he said the insertion was first made in the 1802 edition, but the fact, first brought out by Mr. Ford, that it was made in 1788 puts a different face on the matter. The number was published Feb. 19, and Madison did not leave New York till March 4. According to the announce- ment made March 22, a part of the second volume at least was already in the hands of the printers. It is not at all improbable that that insertion may have been made with Madison's assent, or by him at Hamilton's suggestion. We are informed that Hamilton was very scrupulous not to make changes in numbers not his own when the edition of 1802 was prepared, but any changes in Madison's numbers for the 1788 edition could have been made with his consent. In any case, with this possibility, the argument of Mr. Ford falls far short of conclusiveness. If the change were made with Madison's consent, the retention of the insertion by Madison in 1818 is explained.

Finally, Mr. Ford assumes that a memorandum found among Hamilton's papers and identified by Lodge (I, 497) as a " Brief of Argument on the Constitution of the United States," was in reality a syllabus of The Federalist, and he prints it as such in his edition. He goes further, and sug- gests that it was probably drawn up "as a guide for Madi- son," and concludes that it is a valuable piece of evidence as to the authorship of the disputed numbers.^ These assump- tions will not stand examination. They reveal very clearly that some of Mr. Ford's conclusions are mere haphazard con- jectures, and not based on sound critical method. It is in- trinsically improbable that Hamilton would have thought it 1 See pp. xxxiii and xliii-xlvii.

THE AUTHORSHIP OF THE FEDERALIST 155

necessary to outline for Madison the line of argument to be followed in defending the details of a Constitution which he more than any one else had made, and in the making of which Hamilton had taken little active part. It is doubtful if Mad- ison would have accepted any such subordinate position. John C. Hamilton {Republic^ III, 519) identifies this piece as the draft of the latter part of Hamilton's speech of July 13. Inasmuch as the things to be discussed in a speech de- fending the Constitution and in The Federalist are the same, the heads to be taken up would necessarily be almost identical. To fit this "Brief" to his hypothesis, Mr. Ford rearranges the heads or topics. Even then the likeness is noteworthy in only a part of the topics. The decisive argument against Mr. Ford's conjecture is the fact that some of the heads reproduce the topics of some of Hamilton's earlier numbers. Compare, for example, "D" of the "Brief" with The Fed- eralist^ No. 9; also. Powers II. with No. 22, and Powers I. with No. 23. Second, while the historical examples of re- publics cited by Madison in No. 39 could not be very different from those which Hamilton might cite, owing to the limited number of well-known republics, yet the similarity between the two documents is mainly in the use of this common material. The portion of 39 which has been so frequently quoted is the analysis of the federal and national elements of the Constitution, and of this famous analysis there is not a vestige in Hamilton's "Brief."

The question, however, is absolutely settled by the fact this syllabus reproduces in skeleton form an argument elaborated in one of the earliest Madison papers. No. 14, published Nov. 30. Toward the end of the syllabus we find these apparently meaningless figures under the caption :

u

Exaggerated ideas

of extent :"

"N.

45

42

S.

31 14

31 11

438

973

764i

mean 868f by 750"

What could Madison make out of that memorandum unaided? Turning, however, to No. 14, p. 84, the signifi- cance is clear. The whole number is devoted to confuting Montesquieu's notion that republican government was suited only to small territories. One of several arguments urged against its application to the Union is that the Union is not really so large after all. " The limits as fixed by the treaty of peace are : on the east the Atlantic, on the south the lati- tude of 31 degrees, on the west the Mississippi, and on the north an irregular line, running in some instances beyond the 45th degree, in others, falling as low as the 42d. Computing the distance between the 31st and 45th degrees, it amounts to 973 common miles ; computing it from 31 to 42 degrees, to 764|^ miles. Taking the mean of the distance, the amount 86 8|. The mean distance from the Atlantic to the Missis- sippi does not probably exceed 750 miles," etc. The same argument and additional points that I have omitted will also be found in the memorandum which Madison drew up for use in the Virginia convention. The natural and unbiassed conclusion is that this statistical argument was originally drawn up by Madison, and that it was so effectively used by him in No. 14 that Hamilton, in preparing himself for the New York convention, jotted down a brief memorandum of the figures for the dimensions of the country. This was per- fectly legitimate. It is by no means necessary to prove or to assume that every argument in The Federalist originated with Hamilton. There are no difficulties in believing that this document is what John C. Hamilton and Lodge called it, " Brief of Argument," etc. There are insuperable difficulties in believing it to be what Mr. Ford says it was : a syllabus drawn up by Hamilton in January, 1788, to guide Madison in expounding the details of a government that Hamilton did not believe in and of which Madison, more than any one else, was the framer.^

1 This last and conclusive disproof of Mr. Ford's position on the question of this " Syllabus of the Federalist," is from my review of his edition in the American

Historical Review in October, 1898.

THE FEDERALIST ABROAD

THE FEDERALIST ABROAD

That The Federalist did not receive adequate recognition at the time of its publication as a remarkable contribution to political literature has been frequently asserted, but without good grounds. Undoubtedly some disparaging comments have been unearthed, but its rare quality was promptly recognized by competent judges. Interesting evidence of this fact is afforded by the literary history of The Federalist abroad. The keen interest in France in the development of the American Republic gave American works on politics a ready welcome there, and it was in France and by Frenchmen that The Federalist received its first foreign recognition as an important contribution to political literature. In 1792 it became clear to the moderate men in France that the disproportionate influence of Paris in political affairs was a source of danger and ought to be counterbalanced. The consequent desire to win support for any well considered plan of decentralization seems to have prompted the translation of The Federalist into French in that year. The translator was a young lawyer of the Girondist party, C. M. Trudaine de la Sablière, a friend of André and M. J. Chénier. The authorship of the essays was first formally announced on the title-page of this edition, and Hamilton and Madison immediately took rank among the great political writers of the day.

On August 24th, the National Assembly acting on a motion originally presented to the Legislative Assembly the 10th of February, passed a decree: "que le titre de citoyen français sera décerné à tous les philosophes qui ont eu le courage de défendre la liberty et l'égalité dans les pays étrangers." The matter was then referred to the Committee on Public Instruction to make nominations.^[4] The scope of this plan of conferring honorary citizenship on eminent foreigners was extended on the 26th by including men who had served the cause of liberty by arms.

This was approved, and the Assembly then took action as follows, according to the record: [l'Assemblée Nat.] "Declare déférer le titre de citoyen français au Docteur Joseph Priestley, à Thomas Payne, à Jérémie Beintham, à William Wilberforce, à Thomas Clarkson, à Jacques Makintosh, à David Williams, à, N. Gorani, à Anarcharsis Cloots, à Corneille Paw, à Joachim-Henry Campe, à Pestalozzi, à Georges Washington, à Jean Hamilton, à N. Maddisón, k H. Klopstack, et à Thadée Kociusko."^[5] This great distinction, placing two Americans without much previous literary reputation upon a level with Jeremy Bentham and Sir James Mackintosh, is a striking indication of the appreciation of The Federalist by some at least of the leaders of French thought and politics.

Two editions of this French translation were published in 1792, which indicates a considerable popular interest in the essays of Publius. In the National Convention, however, the Paris or centralizing party got the upper hand, and soon the name of "federalist" was to be perilously akin to that of "traitor." The Convention on September 25th declared, "the French Republic is one and indivisible," and referred to a committee the proposition to inflict the death penalty on

1 See the Procès-Verbaux du Comité d'Instruction Publigue, Paris, 1889, 114-116.

2 The Procès-Verbal de l'Assemblée Nationale, tom. 13, Aug. 18-27, 1792. The inclusion of Hamilton and Madison in the list may have been owing to M. J. Chénier. He had presented a petition to the National Assembly on Aug. 24, in behalf of this proposal to admit to French citizenship eminent foreigners, and in his long list of benefactors of humanity is included "Madisson, qui, dans le Fédéraliste, a développé avec profondeur le systême des Confédérations." Œuvres de M. J. Chénier, V, 150. The mistakes in the initials of Hamilton and Madison are to be accounted for by the fact that the title-page of Le Fédéraliste gave simply the surnames. Schiller was added to the list the same day by a special vote. This honorary naturalization of foreigners is mentioned in Aulard, Histoire Politique de la Révolution Française, Paris, 1901, 566. those who should propose a dictatorship, a triumvirate, a tribunate, or le gouvernement fédératif.^[6]

During the conservative reaction in 1795 another edition of The Federalist was issued.^[7]

In Germany The Federalist became known through the French translation. This was the subject of a very intelligent and thorough review in the Allgemeine Literatur-Zeitung,^[8] in which it was declared that there were few books designed for the general public that had so successfully combined profound reflection with popular exposition. It was, on the whole, to be reckoned among the pre-eminent works of political literature.

On at least three other occasions and in three other countries, when, as in France, in 1792, the question of centralization versus decentralization under a federal constitution has been at issue, The Federalist has been enlisted in the discussion. In the beginning of the perennial struggle between a unitary and a federal constitution in the Argentine in 1818, The Federalist was frequently appealed to,^[9] and, finally, in 1868, a Spanish translation from the English text was published in Buenos Aires by the well-known publicist, J. M. Cantilo.^[10]

There was a strong federal movement in Brazil in 1840-42, and a widespread desire to establish a Federal Republic like the United States.^[11] This gave the occasion for a Portuguese

1 Procès-Verbal de la Convention, Nationale, I, 49-50.

2 Trudaine de la Sablière, the translator, like so many of his party, met his death on the scaffold in 1794.

3 Dec. 27, 1792. The reviewer ranked The Federalist much higher than he did John Adams's Defence of the Constitutions of the United States.

4 "The writings of Franklin, The Federalist, and other American works are frequently quoted." H. M. Brackenridge, Voyage to South America in the Years 1817 and 1818, II, 141.

5 This edition has escaped the notice of Lodge and Ford. Its title is: "El Federalista. Articulos sobre la constitution de los Estados Unidos escritos en 1787 por Mr. Hamilton, Mr. Madison y Mr. Jay ... con un apendice que contiene los articulos de Confederacion y Constitucion de los E. U. Traduccion hecha del testo Ingles por J. M Cantilo. Buenos Aires, 1868."

6 See the article by L. de Chavagnes, "Le Brésil en 1844," in the Revue de Deux Mondes, July, 1844, 76-79.

11

translation from the French edition of 1795, which was pub- lished in Rio Janeiro in 1840.

Lastly, in 1864, when the long contest for a real Federal Union in Germany was approaching its final stage, Wilhelm Kiesselbach reviewed for the German people the history of the formation of the American Union, in a two-volume work entitled Der Amerikanische Federalist. JPoUtische Studien fiir die deutsche Gegenwart (Bremen, 1864). A large part of the second volume is devoted to a presentation of the con- tents of The Federalist in a condensed form.

That The Federalist has never been republished in England has given rise to some remark, but the reason is clear. The number of American editions has been ample to supply the ordinary demand arising from literary or historical interest, and there never has been any exceptional interest in the topics constituting the main themes of The Federalist^ because federalism has never been in England a really practical polit- ical issue save as it has recently been a phase of the Irish

Home Rule question or of the schemes of imperial federation.

MADISON'S STUDIES IN THE HISTORY OF FEDERAL GOVERNMENT

MADISON'S STUDIES IN THE HISTORY OF FEDERAL GOVERNMENT ^

It is a fact of no little interest that Madison, whose ideas pervaded the "Virginia Plan," who shaped the growth of the Constitution in the Federal Convention, who was its inde- fatigable champion in the Virginia convention, and who, in The Federalist^ was the ingenious and sympathetic advocate of its fitness for American conditions, was our first thorough and systematic student of the history of federal government. His historical studies seem to have been especially directed in this channel as early as 1784, when he realized that the Confederation was a failure and rapidly approaching helpless- ness and disintegration. In March of that year he wrote Jefferson : —

" You know tolerably well the objects of my curiosity. I will only particularize my wish of whatever may throw light on the general constitution and droit publique of the several confederacies which have existed. I observe in Boenaud's Catalogue several pieces on the Dutch, the German, and the Helvetic. The operations of our own must render all such lights of consequence. Books on the Law of N. and N. fall within a similar remark."

Again, on April 27, 1785, he asked for " Treatises on the ancient and modern Federal Republics, on the law of nations, and the history, natural and political, of the New World."

With Jefferson's help and by careful scanning of cata- logues, Madison gathered a collection of works on the history of federal government, which was probably the most com- plete in the country at that time. With his customary pains-

1 From a paper read before the American Historical Association in New York in 1896.

taking diligence Madison studied these works, and, in preparation for the Philadelphia Convention, he drew up a careful analysis of the constitution of the Lycian League, the Achaean League, Amphictyonic Council, Swiss Confedera- tion, Germanic Empire, and the United Netherlands. In this analysis a brief sketch of the origin and general character of the federation was followed by particular examination of the nature of the federal authority and of the defects or " vices " of the constitution, as he called them, which led to its decay.

We may feel sure that Madison, in 1787, had more thor- oughly studied and knew more of the history of federal gov- ernment than any other American or Englishman. It will be of interest to take a glimpse at the range of these studies. His knowledge of the Greek federations he derived mainly from Polybius and a treatise in Latin on the Greek republics by the eminent Dutch scholar, Ubbo Emmius.^ Gillies' History of Qreece^ published within a year, was also drawn into service, as well as two recent French works, Comte d'Albon's discourses on the history and government of Europe,^ and the extensive cyclopsedia of comparative pol- itics, edited by Felice, which was usually referred to by Madison under its secondary title, Le Code de V Humanite^

These works also proved rich in information on the consti- tution of the Swiss Confederation, the Netherlands, and the Empire. Felice's work, which is in thirteen volumes, Madi- son had ordered in 1785 through Jefferson, who praised it as "a very good dictionary of universal law," and who bought it for him before Madison's order could have arrived. For

1 Freeman's confident assertion, "It is clear that Hamilton and Madison knew hardly anything more of Grecian history than what they had picked np from the Observations of the Abbe Mably was unjust and mistaken. See his History of Federal Government (Bury's ed.), 249. Madison cites or refers to Polybius in his

Writings, I, 298, 347, 399. The title of Ubbo Emmius* book is Grcecorum Respiiblicce Descriptoe, Leyden, 1632.

2 Discours politiques, historiques et critiques sur quelques gouvemments de V Europe, Nenchatel, 1779.

8 Yverdun, 1778.

MADISON'S STUDIES IN FEDERAL GOVERNMENT 167

Switzerland he used a Dictionnaire de Suisse,^ the account of Temple Stanyan, published in 1714, of which Dr. John- son said, " The Swiss admit that there is but one error in Stanyan," and Coxe's Sketches, which is praised by Free- man. The most serviceable description of the constitution of the Netherlands he found in Sir William Temple's Observa- tions. For Germany he relied upon Felice and upon Savage's History/. In addition to these studies it hardly needs to be said that Madison, like several of his contemporaries, had studied Aristotle's Politics and mastered Montesquieu's Spirit of the Laws, Of the last he made an abstract for Washing- ton's use prior to the convention, and Washington borrowed and copied with his own hand Madison's material on the history of federations.

The question naturally arises, what use did Madison make of these materials ? Turning to the journal of the conven- tion, we find that in his important speech of June 19 against Patterson's plan for revising the Articles of Confederation, he reviewed, as he says, "the Amphictyonic and Achtean Confederation among the ancients and the Helvetic, Ger- manic and Belgic among the moderns," tracing their analogy to the United States in the Constitution and extent of their federal authorities and in the tendency of the particular mem- bers to usurp on these authorities and to bring confusion and ruin upon the whole. Later, in the same speech, he showed by examples from the same history how vulnerable loose con- federacies were to foreign attack by intrigue.

Similarly, on June 28, he enforced his argument that the small States had nothing to fear from combinations of the large States, by appealing to the history of the Empire, where it was the "contentions, not the combinations, of Prussia and Austria that have distracted and oppressed the German Empire." In Nos. 18, 19, and 20 of The Federalist this material is again digested into a powerful argument against any form of government in which the sovereign authority deals with States rather than with individuals. The moral

1 Edited by V. B. Tscharner, Zurich, 1773.

is driven home in compact and telling sentences at the close.

Having done what he could to advocate the Constitution in New York, Madison, in March, 1788, went to Virginia to prepare for the Virginia convention. For this purpose he drew up " an additional memorandum " on the defects of mere confederacies. In the mean time he had added to his previous material notes on the Hanseatic League, the Union of Calmar, and the Union of Scotland and England. This memorandum also took up the traces of representative institutions among the ancients, especially in Sparta, Rome, and Carthage, and the utility of a moderating senate. In the Virginia conven- tion Madison was as prominent as in the Philadelphia con- vention, and his efforts not less important. He met the specious eloquence of Patrick Henry by repeated appeals to solid facts, to those of recent experience, and to those of an earlier age. This Madison was prepared to do by his expe- rience in the old Congress and by his historical studies.

From the reports of the Virginia convention one may see how effectually Madison performed this task. The report is, of course, condensed : —

" If we recur to history and review the annals of mankind, I undertake to say that no instance can be produced by the most learned man of any confederate government that will justify a continuation of this present system or that will not demonstrate the necessity of the change, and of substituting for the present pernicious and fatal plan the system now under consideration, or one equally energetic.

" The powers of the Amphictyonic Council were exercised on the component states which retained their sovereignty. To this capital defect it owed its disorders and final destruc- tion. The Germanic system is neither adequate to the exter- nal defense nor internal felicity of this people. The doctrine of quotas and requisitions flourishes here; without energy, without stability, the Empire is a nerveless body ; the most furious conflicts and the most implacable animosities between its members strikingly distinguish its history. Concert and

MADISON'S STUDIES IN FEDERAL GOVERNMENT 169

co-operation are incompatible with such an injudiciously con- structed system."

Of late the fanciful suggestion that the Federal Constitu- tion was imitated from the United Netherlands has here and there received favor. The indebtedness to Holland was of a far different kind in Madison's eyes. "The confederate Government of Holland," he proceeds, "is a further confir- mation of the characteristic imbecility of such governments. From the history of this Government we might derive lessons of the most important utility. Governments destitute of energy will ever produce anarchy. These facts are worthy the most serious consideration of every gentleman here. Does not the history of these confederacies coincide with the lessons drawn from our own experience ? I most earnestly pray that America may have sufficient wisdom to avail her- self of the instructive information she may derive from a con- templation of the sources of their misfortunes, and that she may escape a similar fate by avoiding the causes from which their infelicities sprang."

In short, for Madison, all his study of the history of federal government confirmed his diagnosis of the existing evils. Permanent peace, prosperity, and development could not be obtained under any type of confederacy known to history. All have fallen a prey to dissension and disintegration. Some- thing new must be devised in the form of a federal constitu- tion. From the debates in Philadelphia emerged our Constitution, to be recognized and classified as a new type : the Bundesstaat, or Federal State, the creation of Madison's thought more than of any one else's. The evils of the Con- federation were obvious, and history showed Madison that they were irremediable. When we realize fully Madison's part in the Constitution, the unsparing toil which he devoted to its formation and adoption, we can form some idea — although, of course, not an exact one — of the importance in our history of his studies in the history of federal government.

1. See Lodge's The Federalist, Introduction, for a presentation of the external evidence. All references are to Lodge's edition unless another is mentioned.
2. History of the Constitution of the United States, II, 336.
3. See his edition of The Federalist.
4. 1
5. 2
6. 1
7. 2
8. 3
9. 4
10. 5
11. 6