Brutus No. 1 by Robert Yates (1787)

To the Citizens of the State of New-York

When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result…

Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties by which these United States are held together, and the want of sufficient energy in our present confederation, to manage, in some instances, our general concerns. Various expedients have been proposed to remedy these evils, but none have succeeded. At length a Convention of the states has been assembled; they have formed a constitution which will now, probably, be submitted to the people to ratify or reject…

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed…

But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy — then, if you adopt it, this only remaining asylum for liberty will be shut up, and posterity will execrate your memory…

With these few introductory remarks I shall proceed to a consideration of this constitution:

The first question that presents itself on the subject is, whether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics, under the direction and control of a supreme federal head for certain defined national purposes only?

This enquiry is important, because, although the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.

This government is to possess absolute and uncontrollable power — legislative, executive, and judicial — with respect to every object to which it extends. For by the last clause of Section 8, Article I, it is declared:

“That the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof.”

And by the 6th Article, it is declared:

“That this Constitution, and the laws of the United States which shall be made in pursuance thereof, and the 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…”

There is no need of any intervention of the state governments, between the Congress and the people, to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void, so far as they are or shall be inconsistent with this constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States.

The government then, so far as it extends, is a complete one, and not a confederation… So far therefore as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the states, but a little attention to the powers vested in the general government will convince every candid man, that if it is capable of being executed, all that is reserved for the individual states must very soon be annihilated, except so far as they are barely necessary to the organization of the general government.

The powers of the general legislature extend to every case that is of the least importance — there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given.

The legislative power is competent to lay taxes, duties, imposts, and excises — there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes and duties shall be applied may be said to be a limitation; but this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and provide for the common defence and general welfare of the United States.

But the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defence, and they only are to determine what is for the general welfare. This power therefore is neither more nor less than a power to lay and collect taxes, imposts, and excises, at their pleasure — not only the power to lay taxes unlimited as to the amount they may require, but it is perfect and absolute to raise them in any mode they please.

No state legislature, or any power in the state governments, have any more to do in carrying this into effect than the authority of one state has to do with that of another. In the business therefore of laying and collecting taxes, the idea of confederation is totally lost, and that of one entire republic is embraced.

It is proper here to remark, that the authority to lay and collect taxes is the most important of any power that can be granted; it connects with it almost all other powers, or at least will in process of time draw all others after it. It is the great mean of protection, security, and defence in a good government, and the great engine of oppression and tyranny in a bad one.

This cannot fail of being the case, if we consider the contracted limits which are set by this constitution to the state governments on this article of raising money. No state can emit paper money — lay any duties or imposts on imports or exports, but by consent of the Congress…

The only mean therefore left for any state to support its government and discharge its debts is by direct taxation; and the United States have also power to lay and collect taxes in any way they please…

The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same state; and it extends to all cases in law and equity arising under the constitution.

One inferior court must be established, I presume, in each state at least, with the necessary executive officers appendant thereto. It is easy to see that in the common course of things, these courts will eclipse the dignity and take away from the respectability of the state courts.

These courts will be, in themselves, totally independent of the states, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected that they will swallow up all the powers of the courts in the respective states.

How far the clause in the 8th section of the 1st article may operate to do away all idea of confederated states, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing of almost any law.

A power to make all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite, and may, for aught I know, be exercised in such manner as entirely to abolish the state legislatures.

Congress is vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And are by this clause invested with the power of making all laws proper and necessary for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government.

And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way.

Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way. This disposition, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately to subvert the state authority; and having such advantages, will most certainly succeed, if the federal government succeeds at all.

It must be very evident then, that what this constitution lacks in being a complete consolidation of the several parts of the union into one complete government, possessed of perfect legislative, judicial, and executive powers, to all intents and purposes, it will necessarily acquire in its exercise and operation.

Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic, or not?

It is here taken for granted, that all agree in this: that whatever government we adopt, it ought to be a free one; that it should be so framed as to secure the liberty of the citizens of America, and such an one as to admit of a full, fair, and equal representation of the people.

The question then will be, whether a government thus constituted, and founded on such principles, is practicable, and can be exercised over the whole United States, reduced into one state?

If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, and these increasing in such rapid progression as that of the whole United States.

Among the many illustrious authorities which might be produced to this point, I shall content myself with quoting only two. The one is the Baron de Montesquieu, Spirit of Laws, Chap. XVI, Vol. I [Book VIII]:

"It is natural to a republic to have only a small territory, otherwise it cannot long subsist.
In a large republic there are men of large fortunes, and consequently of less moderation;
there are trusts too great to be placed in any single subject; he has interest of his own;
he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens;
and that he may raise himself to grandeur on the ruins of his country.
In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents.
In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen;
abuses are of less extent, and of course are less protected."

History furnishes no example of a free republic anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.

Not only the opinion of the greatest men, and the experience of mankind, are against the idea of an extensive republic, but a variety of reasons may be drawn from the reason and nature of things against it.

In a pure democracy the people are the sovereign, and their will is declared by themselves; for this purpose they must all come together to deliberate and decide. This kind of government cannot be exercised, therefore, over a country of any considerable extent; it must be confined to a single city, or at least limited to such bounds as that the people can conveniently assemble, be able to debate, understand the subject submitted to them, and declare their opinion concerning it.

In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their consent by themselves in person, but by representatives, chosen by them, who are supposed to know the minds of their constituents, and to be possessed of integrity to declare this mind…

Now, in a large extended country, it is impossible to have a representation possessing the sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldy as to be subject in great measure to the inconveniency of a democratic government.

The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country so large and so numerous as they will soon become, to elect a representation that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business? It certainly is not.

In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other. This will hinder the operations of government, and prevent such conclusions as will promote the public good.

If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government. The United States includes a variety of climates. The productions of the different parts of the union are very variant, and their interests, of consequence, diverse. Their manners and habits differ as much as their climates and productions; and their sentiments are by no means coincident.

The laws and customs of the several states are, in many respects, very diverse, and in some opposite; each would be in favor of its own interests and customs, and, of consequence, a legislature formed of representatives from the respective parts would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles as would constantly be contending with each other…

A free republic will never keep a standing army to execute its laws. It must depend upon the support of its citizens. But when a government is to receive its support from the aid of the citizens, it must be so constructed as to have the confidence, respect, and affection of the people… but the people will not be likely to have such confidence in their rulers, in a republic so extensive as the United States, as necessary for these purposes.

The confidence which the people have in their rulers, in a free republic, arises from their knowing them, from their being responsible to them for their conduct, and from the power they have of displacing them when they misbehave. But in a republic of the extent of this continent, the people in general would be acquainted with very few of their rulers; the people at large would know little of their proceedings, and it would be extremely difficult to change them.

The people in Georgia and New Hampshire would not know one another’s mind, and therefore could not act in concert to enable them to effect a general change of representatives. The different parts of so extensive a country could not possibly be made acquainted with the conduct of their representatives, nor be informed of the reasons upon which measures were founded.

The consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass. Hence the government will be nerveless and inefficient, and no way will be left to render it otherwise, but by establishing an armed force to execute the laws at the point of the bayonet — a government of all others the most to be dreaded…

In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves and oppressing them… They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.

These are some of the reasons by which it appears that a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.