FEDERALIST LXXXI – The Judiciary Continued, and the Distribution of the Judicial Authority
FEDERALIST LXXXII – The Judiciary Continued
FEDERALIST LXXXIII – The Judiciary Continued in Relation to Trial by Jury
FEDERALIST LXXXV – Concluding Remarks
INTRODUCTION
I.
The Authorship of the “Federalist”
The authorship of certain numbers of the Federalist has fairly reached the dignity of a well-established historical controversy, and has become almost as hopeless of settlement as the identity of Junius or the guilt of Mary, Queen of Scots. In character it closely resembles the former question, except that the mystery of Junius is due to his secrecy, while with the Federalist more authors have confessed themselves than can be provided for in the essays.
The discussion about the Federalist began nearly seventy years ago, has continued at intervals down to the present day, and culminated some twenty years since in two most elaborate essays, one by Mr. Henry B. Dawson, the other by Mr. John C. Hamilton, which were prefixed to the editions of the Federalist published by those two gentlemen respectively. It is of course idle to suppose that any thing can now be written which will convince or satisfy everybody as the true answer to this long-mooted question. Yet it is possible, perhaps, not only to present the evidence, including a little that is new, in a compact form, but also to state the case and set forth the arguments in brief and simple fashion, so that the merits of the question may be readily understood and easily appreciated.
The first step is to employ the process of elimination which will free us from much extraneous matter and from the repetition of many long and bewildering lists of numbers. We can throw out first all those essays of which the authorship has never been questioned. We can then do the same with certain others as to which the authorities are at variance, but from which a little examination removes all doubt. This done, there will be left a small number of essays, which are the subject of irreconcilable claims, and on which this controversy really turns. The total number of essays, according to modern numbering, and as agreed to by both Hamilton and Madison, is eighty-five. Of these, the following have never had their authorship disputed by any one, and are to be thus assigned:
To Hamilton: 1, 6, 7, 8, 9, 11, 12, 13, 15, 16, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 59, 60, 61, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85,—in all, 49.
To Madison: 10, 14, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48,—in all, 14.
To Jay: 2, 3, 4, 5,—in all, 4.
This disposes of 67 numbers, and leaves 18 to be still accounted for—i. e.: 17, 18, 19, 20, 21, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, 63, 64.
We now come to the second class of essays, where the authorship, after examination, can be fixed with entire certainty. Number 17 is claimed for Madison in one of his own lists (there are four from his hand), and in one of the two Jefferson lists. Hamilton claims it in all his own lists, and Madison concedes it to Hamilton in three of his. When Madison in any one of his four lists agrees with Hamilton as to the authorship of any essay, it must be considered as settled. Number 17 therefore belongs to Hamilton. All the Hamilton lists assign numbers 18, 19, and 20 to Hamilton and Madison jointly. Two of the Madison lists give the authorship of these three papers exclusively to Madison. One Madison list and one Jefferson list give 18 and 19 exclusively to Madison, and 20 wholly to Hamilton. In his fourth and last list Madison appends to No. 18 the following note: “The subject of this and the two following numbers happened to be taken up by both Mr. H. and Mr. M. What had been prepared by Mr. H., who had entered more briefly into the subject, was left with Mr. M., on its appearing that the latter was engaged in 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.” This note confirms Hamilton’s statement that these three papers were the work of himself and Madison, and to them jointly Nos. 18, 19, and 20 may therefore be credited without any reserve. One Jefferson list and one Madison list give No. 21 to Madison. Three Madison lists and all the Hamilton lists give it to Hamilton. No. 21, therefore, can be set down unhesitatingly to Hamilton. No. 64 is claimed by Madison for himself in one of his lists; but in his three other lists, and in one of the Jefferson lists, it is given to Jay. In five of the Hamilton lists 64 is claimed for Hamilton, and 54 is given to Jay. Chancellor Kent’s Hamilton list gives 64 to Jay, while the edition of 1810 credits both 64 and 54 to Hamilton. Jay claimed for himself Nos. 2, 3, 4, 5, and 64, and the MS. of 64 has been found among his papers and in his own handwriting. There is therefore no longer any doubt whatever as to 64, which can be given with absolute certainty to Jay.
The eighteen numbers left over from the first sifting are now reduced to twelve. Two of the six thus disposed of go to Hamilton, one goes to Jay, and the other three (18, 19, and 20) to Hamilton and Madison jointly. This makes Hamilton’s total 51; Jay’s, 5; Madison’s, as before, 14; and Madison’s and Hamilton’s jointly, 3. The twelve remaining numbers (49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 62, and 63) are those over which the whole controversy as to the authorship of the Federalist really arises.
It now becomes necessary to notice briefly the various authorities in regard to the disputed authorship. The day before his fatal duel Hamilton called at the office of his friend Egbert Benson, and left there a slip of paper in his own handwriting, which read as follows:
“Nos. 2, 3, 4, 5, 54, by J.
“Nos. 10, 14, 37 to 48 inclusive, M.
“Nos. 18, 19, 20, M. &H. jointly.
“All the others by H.”
Mr. Egbert Benson was absent when Hamilton called, but Mr. Robert Benson, his nephew, was present, saw the paper deposited by Hamilton in a volume of Pliny, and afterwards examined it himself. Judge Benson on his return pasted the slip thus left by Hamilton on the fly-leaf of his own copy of the Federalist. Thence he removed it, after making a copy, and presented it for safe-keeping to the New York Public Library, where the paper remained for some years. It was still there in 1818 when, in the controversy which then sprang up, William Coleman, the editor of the New York Evening Post, referred to it, and informed the public that they could call and examine it. At some subsequent time this valuable document was stolen, and it has never been recovered. In 1802–1803 John C. Hamilton, at the request and dictation of his father, sent a list to Philip Church, a nephew of General Hamilton, which agrees precisely with the Benson list. In 1807 the executors of Hamilton’s will deposited in the New York Public Library Hamilton’s copy of the Federalist in which the authorship of the various numbers was said to be designated in his own handwriting. Attention was called to this fact by a letter in the Portfolio, attributed to Chancellor Kent, who there gave from the copy thus deposited a list of the authors, corresponding exactly with the Benson list. In 1810 an edition of Hamilton’s works was published in New York. The second and third volumes contain the Federalist, and the author of each paper is designated, as we are informed in the preface, “from a private memorandum in his own [Hamilton’s] handwriting.” The designation of authors in this edition is the same as the Benson list, with one striking exception: No. 54 is given to Hamilton, and Jay is left with only four numbers. This difference would indicate either that the Portfolio list was wrongly given, or that the editor of the 1810 edition had some list of which nothing