hands. If even no propensity had ever discovered itself in the legislative body, to invade the rights of the executive, the rules of just reasoning and theoretic propriety would of themselves teach us, that the one ought not to be left at the mercy of the other, but ought to possess a constitutional and effectual power of self-defence. 'But the power in question has a further use. It not only serves as a shield to the executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. The propriety of a negative has, upon some occasions, been combatted by an observation, that it was not to be presumed a single man would possess more virtue and wisdom than a number of men; and that unless this presumption should be entertained, it would be improper to give the executive magistrate any species of control over the legislative body. But this observation, when examined, will appear rather specious than solid. The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the executive; but upon the supposition that the legislative will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of the other members of the government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on mature reflection, would condemn.'1 The primary inducement to conferring the power in question upon the executive is, to enable him to defend himself: the secondary is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence or design. The oftener a measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less "The Federalist, No. 73.-Hamilton. € 299. must be the danger of those errors which flow from want of due deliberation, or those mis-steps which proceed from the contagion of some common passion or interest. It is far less probable that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object, than that they should by terms govern and mislead every one of them. 'It may perhaps be said that the power of preventing bad laws includes that of preventing good ones; and may be used to the one purpose as well as the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments. They will consider every institution, calculated to restrain the excess of law-making and to keep things in the same state in which they may happen to be at any given period, as much more likely to do good than harm; because it is favorable to greater stability in the system of legislation. The injury which may possibly be done by defeating a few good laws, will be amply compensated by the advantage of preventing a number of bad ones. 'Nor is this all. The superior weight and influence of the legislative body in a free government, and the hazard to the executive in a trial of strength with that body, afford a satisfactory security that the negative would generally be employed with great caution; and that in its exercise, there would oftener be room for a charge of timidity than of rashness. In the case for which it is chiefly designed, that of an immediate attack upon the constitutional rights of the executive, or in a case in which the public good was evidently and palpably sacrificed, a man of tolerable firmness would avail himself of his constitutional means of defence, and would listen to the admonitions of duty and responsibility. I speak now with an eye to a magistrate possessing only a common share of firmness. There are men, who, under any circumstances, will have the courage to do their duty at every hazard.'1 1Id. pp. 338-339: This subject is fully examined by Hamilton in (3 d) OF THE RIGHT OF POLITICAL DOMAIN. Having considered the sovereign rights of political ex 300. Emiistence and of political sovereignty, and shown in whom nent domain. those rights inhere, it remains to be seen in whom is of the states. vested the sovereign right of political domain; whether in the states, or in the union of the states. 2 The states are united, as we have seen, by a written constitution and a government founded therein, to which the PEOPLE of each state, as a self-constituted, self-organized, and self-governing political community or state, became a party by their own free act.1 But that constitution contains no grant or delegation of power to the government of the United States, or to any branch or department thereof, affecting the sovereign proprietary right to the territory of the states. That right must threfore remain the right of the people of each state. The Supreme Court of the United States, in its expositions of the federal constitution, has therefore uniformly held, that, from the time the people of any state resumed the powers of sovereignty, the prerogatives and regalities which before belonged to either the Crown or the Parliament of Great Britain, became immediately and rightfully vested in them, together with the absolute title to all the territory, and to all the navigable waters and the soils under them, within the his usual masterly manner.-See the number referred to, and also No. 71, p. 329, where his argument is sufficiently strong to justify an absolute negative upon the legislative body. On the tendency to usurpation by the legislative power, see also No. 48, by Madison: and further, on the veto power, Id. No. 51, p. 240. 1The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.' Const. U. S. last clause. See the ordinances of these conventions, ¿? 85 to 86, ante. 'No political dreamer was ever wild enough to think of breaking down the lines which separate the States and of compounding the American people into one common mass. quence, when they act, they act in their States. Of conse From these Conventions, the Constitution derives its whole authority.' Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316; 4 Pet Cond. Rep. 471. See p. 289, ante. 2 Const. U. S. Amendments, Art. X. 301. 8 302. Public lands of the United States jurisdiction of their state; and that they yet hold in right As formerly remarked, the title to the territories acquired since the Revolution, was originally vested in the United States; in trust, nevertheless, for such of the people of the several states as should settle therein, form new states, and in the capacity of states, be admitted into the federal union. And as each state legislature is generally empowered by its constitution, to make all laws at discretion, so long as they be not repugnant to that constitution, it follows of course, that the government of a state is practically clothed with all the rights of eminent domain, within the jurisdiction of the state, and may grant its lands to whom it pleases, and subject to any conditions it may choose to impose. That the legislature of a state, unless restrained by its own constitution, possesses the power of disposing of the unappropriated lands within its own limits, in such manner as its own judgment shall dictate, is a proposition not to be controverted." By the federal constitution, congress has power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States. And it is generally understood that this power extends to the disposal of all public lands the title to which is held by the United States in trust for the people of the several states. For the disposal of those lands is unquestionably a matter of common and national con 1 Martin et al. v. Waddell, 16 Pet. 410, 416; Weber v. Harbor Commissioners, Sup. Ct. U. S., Central Law Journal, Vol. 1, No. 41, p. 513. See p. 87, ante, No. 38. 2 Weber v. Harbor Commissioners, sup. 3 Marshall, Chief Justice, in Fletcher v. Peck, 6 Cranch, 87; 2 Pet. Cond. 317. Const. U. S. Art. IV, ¿ 3, 2. cern, which could not be subject to the jurisdiction of any one member of the union. It is no part of the design of this work, however, to treat of the law of eminent domain, or of the system of law respecting the public lands. The design was to show the foundation, nature and character, of our American system of government, and the present danger to which that system is exposed. We have now ascertained in whom the rights of politi- 303. Concal existence, political sovereignty, and political domain, clusion. are vested by our constitutional system: a system productive of an almost endless division, enumeration, and distribution of the powers of government, and one that might seem to invite the objection that sooner or later it must of itself engender confusion, and become unintelligible to all but those who make it their study and profession. To this objection, however, it should be an all-sufficient answer, that in proportion as the laws of a people are few and simple, the powers of the government, and the rights of the citizen, must remain undefined, unfixed and uncertain, and in the same proportion, political and civil liberty and personal security, must be at an end. The inconveniences arising from different laws and regulations in different states upon the same subject-matters, have, without doubt, led many good people to wish for uniform laws upon all subjects: they seeming to forget that the POWER TO ENFORCE UNIFORMITY IN ALL THINGS, is in its very essence despotic and imperial, and destructive of all forms of self-government. May it be possible that our people are blinded to this truth! Will they not see that UNIFORMITY IS DEATH TO LIBERTY! The rule of my house is to be enforced as the rule of yours, and the rule of yours as the rule of mine; and because you live in the fog and must carry a lamp by day and by night, I must also carry a lamp, although I live in the blaze of the sun. This is not conformable to the laws of nature or the laws of the physical world, nor is it consistent with the fundamental princi1.See 9, pp. 5-6, ante. |