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Brutus V
Brutus
December 13, 1787
To the People of the State of New-York.
It was intended in this Number to have prosecuted the enquiry into the organization of this new system; particularly to
have considered the dangerous and premature union of the President and Senate, and the mixture of legislative, executive,
and judicial powers in the Senate.
But there is such an intimate connection between the several branches in whom the different species of authority is
lodged, and the powers with which they are invested, that on reflection it seems necessary first to proceed to examine the
nature and extent of the powers granted to the legislature.
This enquiry will assist us the better to determine, whether the legislature is so constituted, as to provide proper checks
and restrictions for the security of our rights, and to guard against the abuse of power – For the means should be suited to
the end; a government should be framed with a view to the objects to which it extends: if these be few in number, and of
such a nature as to give but small occasion or opportunity to work oppression in the exercise of authority, there will be less
need of a numerous representation, and special guards against abuse, than if the powers of the government are very
extensive, and include a great variety of cases. It will also be found necessary to examine the extent of these powers, in
order to form a just opinion how far this system can be considered as a confederation, or a consolidation of the states.
Many of the advocates for, and most of the opponents to this system, agree that the form of government most suitable for
the United States, is that of a confederation. The idea of a confederated government is that of a number of independent
states entering into a compact, for the conducting certain general concerns, in which they have a common interest, leaving
the management of their internal and local affairs to their separate governments. But whether the system proposed is of
this nature cannot be determined without a strict enquiry into the powers proposed to be granted.
This constitution considers the people of the several states as one body corporate, and is intended as an original compact,
it will therefore dissolve all contracts which may be inconsistent with it. This not only results from its nature, but is
expressly declared in the 6th article of it. The design of the constitution is expressed in the preamble, to be, “in order to
form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to ourselves and posterity.” These are the ends this government is to
accomplish, and for which it is invested with certain powers, among these is the power “to make all laws which are
necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in
the government of the United States, or in any department or officer thereof.” It is a rule in construing a law to consider
the objects the legislature had in view in passing it, and to give it such an explanation as to promote their intention. The
same rule will apply in explaining a constitution. The great objects then are declared in this preamble in general and
indefinite terms to be to provide for the common defence, promote the general welfare, and an express power being vested
in the legislature to make all laws which shall be necessary and proper for carrying into execution all the powers vested in
the general government. The inference is natural that the legislature will have an authority to make all laws which they
shall judge necessary for the common safety, and to promote the general welfare. This amounts to a power to make laws at
discretion: No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what
laws are proper and necessary for the purpose. It may be said, that this way of explaining the constitution, is torturing and
making it speak what it never intended. This is far from my intention, and I shall not even insist upon this implied power,
but join issue with those who say we are to collect the idea of the powers given from the express words of the clauses
granting them; and it will not be difficult to shew that the same authority is expressly given which is supposed to be
implied in the forgoing paragraphs.
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In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and
excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble,
the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the
general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence,
and general welfare.” – And in the last paragraph of the same section there is an express authority to make all laws which
shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this
constitution may pass any law which they may think proper. It is true the 9th section restrains their power with respect to
certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily
understood, as I shall hereafter shew. It has been urged that the meaning I give to this part of the constitution is not the
true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, etc. in order to provide for
the common defence and general welfare. To this I would reply, that the meaning and intent of the constitution is to be
collected from the words of it, and I submit to the public, whether the construction I have given it is not the most natural
and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to shew, that the same powers are
substantially vested in the general government, by several other articles in the constitution. It invests the legislature with
authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defence, and promote
the general welfare, and to pass all laws which shall be necessary and proper for carrying this power into effect. To
comprehend the extent of this authority, it will be requisite to examine
1st.what is included in this power to lay and collect taxes, duties, imposts and excises.
2d. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into
execution.
3d. What limitation, if any, is set to the exercise of this power by the constitution.
1st. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a
volume, instead of a single piece in a news-paper. Indeed it would be a task far beyond my ability, and to which no one can
be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to
every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a
land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property: – It
extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written
instruments, newspapers, almanacks, and books: – It comprehends an excise on all kinds of liquors, spirits, wines, cyder,
beer, etc. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth
or manufactory. In short, we can have no conception of any way in which a government can raise money from the people,
but what is included in one or other of three general terms. We may say then that this clause commits to the hands of the
general legislature every conceivable source of revenue within the United States. Not only are these terms very
comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to
the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property
to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and
excise officers to pray [sic] upon the honest and industrious part of the community, eat up their substance, and riot on the
spoils of the country.
2d. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry
this power into execution.
It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood
in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of
these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest
geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was
exhausted they have been astonished with the refined improvements that have been made in modem times, and especially
in the English nation on the subject – If then the objects of this power cannot be comprehended, how is it possible to
understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into
execution? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well
known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest
talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a
state gives the command of every thing in it. – He that has the purse will have the sword, and they that have both, have
every thing; so that the legislature having every source from which money can be drawn under their direction, with a right
to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.
Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the
powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to
such as take things upon trust, nothing will awaken them to reflection, until the iron hand of oppression compel them to it.
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I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the state
legislatures. There cannot be a greater solecism in politics than to talk of power in a government, without the command of
any revenue. It is as absurd as to talk of an animal without blood, or the subsistence of one without food. Now the general
government having in their controul every possible source of revenue, and authority to pass any law they may deem
necessary to draw them forth, or to facilitate their collection; no source of revenue is therefore left in the hands of any
state. Should any state attempt to raise money by law, the general government may repeal or arrest it in the execution, for
all their laws will be the supreme law of the land: If then any one can be weak enough to believe that a government can
exist without having the authority to raise money to pay a door-keeper to their assembly, he may believe that the state
government can exist, should this new constitution take place.
It is agreed by most of the advocates of this new system, that the government which is proper for the United States should
be a confederated one; that the respective states ought to retain a portion of their sovereignty, and that they should
preserve not only the forms of their legislatures, but also the power to conduct certain internal concerns. How far the
powers to be retained by the states shall extend, is the question; we need not spend much time on this subject, as it
respects this constitution, for a government without the power to raise money is one only in name. It is clear that the
legislatures of the respective states must be altogether dependent on the will of the general legislature, for the means of
supporting their government. The legislature of the United States will have a right to exhaust every source of revenue in
every state, and to annul all laws of the states which may stand in the way of effecting it; unless therefore we can suppose
the state governments can exist without money to support the officers who execute them, we must conclude they will exist
no longer than the general legislature choose they should. Indeed the idea of any government existing, in any respect, as
an independent one, without any means of support in their own hands, is an absurdity. If therefore, this constitution has
in view, what many of its framers and advocates say it has, to secure and guarantee to the separate states the exercise of
certain powers of government[,] it certainly ought to have left in their hands some sources of revenue. It should have
marked the line in which the general government should have raised money, and set bounds over which they should not
pass, leaving to the separate states other means to raise supplies for the support of their governments, and to discharge
their respective debts. To this it is objected, that the general government ought to have power competent to the purposes
of the union; they are to provide for the common defence, to pay the debts of the United States, support foreign ministers,
and the civil establishment of the union, and to do these they ought to have authority to raise money adequate to the
purpose. On this I observe, that the state governments have also contracted debts, they require money to support their
civil officers, and how this is to be done, if they give to the general government a power to raise money in every way in
which it can possibly be raised, with such a controul over the state legislatures as to prohibit them, whenever the general
legislature may think proper, from raising any money. It is again objected that it is very difficult, if not impossible, to draw
the line of distinction between the powers of the general and state governments on this subject. The first, it is said, must
have the power of raising the money necessary for the purposes of the union, if they are limited to certain objects the
revenue may fall short of a sufficiency for the public exigencies, they must therefore have discretionary power. The line
may be easily and accurately drawn between the powers of the two governments on this head. The distinction between
external and internal taxes, is not a novel one in this country, it is a plain one, and easily understood. The first includes
impost duties on all imported goods; this species of taxes it is proper should be laid by the general government; many
reasons might be urged to shew that no danger is to be apprehended from their exercise of it. They may be collected in few
places, and from few hands with certainty and expedition. But few officers are necessary to be imployed in collecting them,
and there is no danger of oppression in laying them, because, if they are laid higher than trade will bear, the merchants
will cease importing, or smuggle their goods. We have therefore sufficient security, arising from the nature of the thing,
against burdensome and intolerable impositions from this kind of tax. But the case is far otherwise with regard to direct
taxes; these include poll taxes, land taxes, excises, duties on written instruments, on every thing we eat, drink, or wear;
they take hold of every species of property, and come home to every man’s house and packet. These are often so
oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them. The great and
only security the people can have against oppression from this kind of taxes, must rest in their representatives. If they are
sufficiently numerous to be well informed of the circumstances, and ability of those who send them, and have a proper
regard for the people, they will be secure. The general legislature, as I have shewn in a former paper, will not be thus
qualified, and therefore, on this account, ought not to exercise the power of direct taxation. If the power of laying imposts
will not be sufficient, some other specific mode of raising a revenue should have been assigned the general government;
many may be suggested in which their power may be accurately defined and limited, and it would be much better to give
them authority to lay and collect a duty on exports, not to exceed a certain rate per cent, than to have surrendered every
kind of resource that the country has, to the complete abolition of the state governments, and which will introduce such an
infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and excisemen, that when a
man can number them, he may enumerate the stars of Heaven.
I shall resume this subject in my next, and by an induction of particulars shew, that this power, in its exercise, will subvert
all state authority, and will work to the oppression of the people, and that there are no restrictions in the constitution that
will soften its rigour, but rather the contrary.
Source: The Complete AntiFederalist, ed. Herbert J. Storing (Chicago: The University of Chicago Press, 1981) Volume
Two, Part 2, 388-393
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Brutus II
Brutus
November 1, 1787
To the Citizens of the State of New-York.
I flatter myself that my last address established this position, that to reduce the Thirteen States into one government,
would prove the destruction of your liberties.
But lest this truth should be doubted by some, I will now proceed to consider its merits.
Though it should be admitted, that the argument[s] against reducing all the states into one consolidated government, are
not sufficient fully to establish this point; yet they will, at least, justify this conclusion, that in forming a constitution for
such a country, great care should be taken to limit and define its powers, adjust its parts, and guard against an abuse of
authority. How far attention has been paid to these objects, shall be the subject of future enquiry. When a building is to be
erected which is intended to stand for ages, the foundation should be firmly laid. The constitution proposed to your
acceptance, is designed not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the
social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of
rights to have been made — But on this subject there is almost an entire silence.
If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth
as self evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of
nature, or of God, to assume or exercise authority over their fellows. The origin of society then is to be sought, not in any
natural right which one man has to exercise authority over another, but in the united consent of those who associate. The
mutual wants of men, at first dictated the propriety of forming societies; and when they were established, protection and
defence pointed out the necessity of instituting government. In a state of nature every individual pursues his own interest;
in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs
of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who
were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed,
that government should be established, in which the force of the whole community should be collected, and under such
directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil
government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a
certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a
proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now
enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the
government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws
into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of
such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and
defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted,
these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the
common good. From these observations it appears, that in forming a government on its true principles, the foundation
should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as
are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute
government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to
the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud,
oppression, and violence on the other, that men came together, and agreed that certain rules should be formed, to regulate
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the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them.
But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for
private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature
are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that
government should have at first been instituted to restrain private injuries.
This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.
Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty.
This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the
encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their
magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I
presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is
not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights
interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high and when an
appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that
such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand
security, to the rights of the people, is not to be found in this constitution.
It has been said, in answer to this objection, that such declaration[s] of rights, however requisite they might be in the
constitutions of the states, are not necessary in the general constitution, because, “in the former case, every thing which is
not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is
reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers,
rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object
to which they extend, as that of any state government — It reaches to every thing which concerns human happiness — Life,
liberty, and property, are under its controul. There is the same reason, therefore, that the exercise of power, in this case,
should be restrained within proper limits, as in that of the state governments. To set this matter in a clear light, permit me
to instance some of the articles of the bills of rights of the individual states, and apply them to the case in question.
For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be
held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be
compelled to accuse, or furnish evidence against himself — The witnesses against him shall be brought face to face, and he
shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the
vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a
particular state? The powers vested in the new Congress extend in many cases to life; they are authorised to provide for
the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of
all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the state where the said crimes shall
have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be
brought from Niagara to New-York, or carried from Kentucky to Richmond for trial for an offence, supposed to be
committed. What security is there, that a man shall be furnished with a full and plain description of the charges against
him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to
face, or that he shall be fully heard in his own defence by himself or counsel?
For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed,
nor cruel or unusual punishments inflicted — That all warrants, without oath or affirmation, to search suspected places, or
seize any person, his papers or property, are grievous and oppressive.”
These provisions are as necessary under the general government as under that of the individual states; for the power of the
former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants,
and seizing persons, papers, or property, in certain cases, as the other.
For the purpose of securing the property of the citizens, it is declared by all the states, “that in all controversies at law,
respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to
remain sacred and inviolable.”
Does not the same necessity exist of reserving this right, under this national compact, as in that of these states? Yet
nothing is said respecting it. In the bills of rights of the states it is declared, that a well regulated militia is the proper and
natural defence of a free government — That as standing armies in time of peace are dangerous, they are not to be kept up,
and that the military should be kept under strict subordination to, and controuled by the civil power.
The same security is as necessary in this constitution, and much more so; for the general government will have the sole
power to raise and to pay armies, and are under no controul in the exercise of it; yet nothing of this is to be found in this
new system.
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I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections
should be free, that the liberty of the press should be held sacred; but the instances adduced, are sufficient to prove, that
this argument is without foundation. — Besides, it is evident, that the reason here assigned was not the true one, why the
framers of this constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while
they totally omitted others of more importance. We find they have, in the 9th section of the 1st article, declared, that the
writ of habeas corpus shall not be suspended, unless in cases of rebellion — that no bill of attainder, or expost facto law,
shall be passed — that no title of nobility shall be granted by the United States, &c. If every thing which is not given is
reserved, what propriety is there in these exceptions? Does this constitution any where grant the power of suspending the
habeas corpus, to make expost facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express
terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may
be said, that all the powers, which the bills of right, guard against the abuse of, are contained or implied in the general
ones granted by this constitution.
So far it is from being true, that a bill of rights is less necessary in the general constitution than in those of the states, the
contrary is evidently the fact. — This system, if it is possible for the people of America to accede to it, will be an original
compact; and being the last, will, in the nature of things, vacate every former agreement inconsistent with it. For it being a
plan of government received and ratified by the whole people, all other forms, which are in existence at the time of its
adoption, must yield to it. This is expressed in positive and unequivocal terms, in the 6th article, “That this constitution
and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made,
under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, any thing in the constitution, or laws of any state, to the contrary notwithstanding.
“The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive
and judicial officers, both of the United States, and of the several states, shall be bound, by oath or affirmation, to support
this constitution.”
It is therefore not only necessarily implied thereby, but positively expressed, that the different state constitutions are
repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance
thereof, or with treaties made, or which shall be made, under the authority of the United States; of what avail will the
constitutions of the respective states be to preserve the rights of its citizens? should they be plead, the answer would be,
the constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and
judicial officers, whether of the general or state governments, are bound by oath to support it. No priviledge, reserved by
the bills of rights, or secured by the state government, can limit the power granted by this, or restrain any laws made in
pursuance of it. It stands therefore on its own bottom, and must receive a construction by itself without any reference to
any other — And hence it was of the highest importance, that the most precise and express declarations and reservations
of rights should have been made.
This will appear the more necessary, when it is considered, that not only the constitution and laws made in pursuance
thereof, but all treaties made, or which shall be made, under the authority of the United States, are the supreme law of the
land, and supersede the constitutions of all the states. The power to make treaties, is vested in the president, by and with
the advice and consent of two thirds of the senate. I do not find any limitation, or restriction, to the exercise of this power.
The most important article in any constitution may therefore be repealed, even without a legislative act. Ought not a
government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It
certainly ought.
So clear a point is this, that I cannot help suspecting, that persons who attempt to persuade people, that such reservations
were less necessary under this constitution than under those of the states, are wilfully endeavouring to deceive, and to lead
you into an absolute state of vassalage.
Source: The Complete AntiFederalist, ed. Herbert J. Storing (Chicago: The University of Chicago Press, 1981) Volume
Two, Part 2, 372-377.
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Although you can leverage our expertise for any writing task, we have a knack for creating flawless papers for the following document types.
Although you can leverage our expertise for any writing task, we have a knack for creating flawless papers for the following document types.
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