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1) What were the main issues that sparked the American Revolution/War of Independence? Did all American colonists support separation from Great Britain?

2) What is the significance of the American victories at Saratoga (1777) and Yorktown (1781)? Why was the winter at Valley Forge important?

3) How did the American Revolution affect enslaved people? How did it affect women?

4) How did the American Revolution affect American Indian tribes?

5) Describe the concept of “republican motherhood.”

6) What prompted calls for a Constitutional Convention to create a new government to replace that of the Articles of Confederation?

7) Compare and contrast the national governments under the Articles of Confederation and the Constitution, respectively.

8) What were some of the compromises necessary to secure ratification of the Constitution?

“We Have Always Been the Frontier”: The American Revolution in Shawnee Country

Author(s): Colin G. Calloway

Source: American Indian Quarterly , Winter, 1992, Vol. 16, No. 1 (Winter, 1992), pp. 39-
52

Published by: University of Nebraska Press

Stable URL: https://www.jstor.org/stable/1185604

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https://www.jstor.org/stable/1185604

“WE HAVE ALWAYS BEEN THE FRONTIER”:
THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY

Colin G. Calloway

DESPITE THE CENTRAL IMPORTANCE of the American Revolution in
American history and historiography, the full story of all the par-

ticipants has yet to be told. Indian experiences continue to receive
one-dimensional treatment in most studies of the American
Revolution, and historians of the era still suffer from the “Drums
Along the Mohawk” syndrome where Indians are concerned. The
Indians’ role in the war still attracts far more attention than does the

impact of the war on their home front; tribes feature as military and
political units, but their experiences as human communities are
neglected.1 With few exceptions, the Indian story in the Revolution
remains relegated to secondary importance and easy explanation:
The Indians chose the wrong side and lost. To better understand the
reality of the Revolution for American Indians, we need to shift our
focus to Indian country and to Indian communities.

The Shawnees exemplify the inadequacy of standard portrayals
of Indian experiences during the Revolution. To suggest that for the
Shawnees the American Revolution began in 1775 is rather like
telling Poland that World War II began with Pearl Harbor. Shawnees
were fighting for their freedom long before Lexington and, as for
many Indian peoples, the Revolution renewed and intensified famil-
iar pressures on their lands and culture. Nor did the Shawnees’
Revolution end in 1783; it was one phase in a Twenty Years War that
continued until at least the Treaty of Greenville in 1795. During this
war the Shawnees occupied the front lines in the fight for the Ohio
River. As village chiefs from Chillicothe told the British in 1779, “We
have always been the Frontier.”2 For twenty years, the American
Revolution translated into a story of political fragmentation and
burning villages in Shawnee country. It was also a story of change
and endurance in Shawnee communities.

The Shawnees traditionally comprised five divisions, each with
specific responsibilities. The Chillicothe and Thawekila divisions took
care of political concerns that affected the whole tribe and generally
supplied tribal political leaders. The Maquachakes were concerned
with health and medicine and provided healers and counselors. The

Colin G. Calloway is Associate Professor of History at the University of Wyoming.

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40 AMERICAN INDIAN QUARTERLY, WINTER 1992

Piquas were responsible for matters of religion and ritual, and the
Kispokis generally took the lead in preparing and training for war
and supplying war chiefs. Before the Revolution these divisions seem
to have functioned as semi-autonomous political units, occupied par-
ticular towns, and possessed their own sacred bundles.3

In 1673 Marquette described the Ohio Valley as the place “where
dwell the people called Chaouanons in so great numbers that in one
district there are as many as twenty-three villages, and fifteen in
another quite near one another.” But Iroquois pressure drove these
people out, and war, migrations, political fragmentation, disease, eco-
nomic disruption, and cultural changes had already taken their toll
by the time the Shawnee tribes reassembled in southeastern Ohio by
the middle of the eighteenth century, settling on lands set aside for
them by the Wyandots.4

The Shawnees’ long struggle to defend their homelands against
encroachment from Virginia intensified after the Iroquois sold their
lands out from under them at the Treaty of Fort Stanwix in 1768.
Two years later the Shawnees were working to form a confederacy of
tribes in opposition to the Stanwix cession.5 Tensions exploded after
a series of petty frontier skirmishes in Dunmore’s War in 1774. The
British Indian Department effectively isolated the Shawnees, and
when the Shawnees sent a war belt soliciting Iroquois assistance, the
Onondagas threw it back at them.6 After the Battle of Point Pleasant
and the destruction of their towns on the Muskingum River, some
Shawnees became reconciled to the loss of their lands south of the

Ohio as the price of the peace negotiated with Lord Dunmore at
Camp Charlotte; others never accepted the situation as one war
merged into another.

When the Revolution broke out, most Shawnees endeavored to
remain neutral, and several towns moved away from the Scioto to the
Miami River and its tributaries.7 But American encroachments per-
sisted, and Shawnee chiefs told the Virginians in July 1775, “We are
often inclined to believe there is no resting place for us and that your
Intentions were [sic] to deprive us entirely of our whole Country.”8
American commissioners traveling through Indian country in the
summer of 1775 found the Shawnees “Constantly Counseling” and
“the Women all seemed very uneasy in Expectation that there would
be War.” A Maquachake woman told commissioner Richard Butler
that the Shawnees were divided, with the Chillicothe and Piqua divi-
sions of the tribe displaying growing militancy. The Shawnees who
showed up at the Treaty of Fort Pitt that fall confirmed the Ohio
River as the boundary of Indian and white lands, a line the Shawnees
fought to hold for the next twenty years.9

When Indian agent Matthew Elliott visited the Kispoki Shawnee
towns in the summer of 1776, he feared a general Indian war. Shaw-

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 41

nee emissaries carried a nine-foot war belt to the Cherokees, igniting
bloody warfare on the borders of Virginia and the Carolinas.10
Nevertheless, that fall Shawnee peace advocates attended another
multi-tribal treaty council at Fort Pitt, which the American agent
George Morgan misread as a broader commitment to neutrality by
the tribes.11 Disease may have added to the disruption in Shawnee vil-
lages that year.12

The Shawnees occupied a crucial yet precarious position
between the frontiers of Virginia and Kentucky and the hostile Mingo
bands at Pluggy’s Town and elsewhere closer to Detroit. Tribes
already allied to the British threatened the Shawnees with attack if
they contemplated peace with the Virginians, and they became
embroiled in the escalating conflict. But participation was never
total. Different groups and individuals interpreted things differently
and came to different conclusions about the best course to pursue in
tumultuous times.13 Chief Cornstalk and other peace advocates kept
the Americans informed about developments in Indian country and
within their own tribe. In late February 1777, Cornstalk, Kishanosity,
Molontha, the war chief Oweeconne, and other Maquachake head
chiefs sent messengers to George Morgan, assuring him of their
desire for peace and blaming the Mingoes for corrupting their young
warriors. Cornstalk had little authority beyond his own Maquachake
division by this time, and he warned that he could neither restrain his
warriors nor stop the drift to war. The chiefs said they intended to
separate from those who wanted war and to build a new town. In
March, the Delaware Council reminded the Shawnees of what had
befallen them three years earlier and invited them to settle at the
Delaware capital, Coshocton. Cornstalk planned to move his people
closer to the Delawares where, he said, they would be safer from
Mingo threats.14 But the war party was gaining in strength in
Shawnee villages, and that same year Shawnee warriors accepted a
war belt from Governor Henry Hamilton at Detroit and joined the
Mingoes in raiding the American frontier. George Morgan and
Edward Hand reported in July that two tribes of the Shawnees had
“become unmanageable,” while two others remained in the American
sphere.15 The oldest Shawnees early in the next century could not
remember an occasion when “more than one-half of the nation have
been at war at the same time.”16

Cornstalk’s murder by American militia in 1777 drove many
Shawnees into the arms of the British. As General Hand recognized,
“If we had anything to expect from that Nation it is now Vanished.”17
Black Fish invaded Kentucky in the winter of 1777-78, capturing
Daniel Boone and twenty-six companions in a snowstorm. But
revenge was not the only motor driving the Shawnees: Cornstalk’s

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42 AMERICAN INDIAN QUARTERLY, WINTER 1992

Maquachakes remained predominantly neutral. White Eyes, the pro-
American leader of the Delaware Turtle clan, said the Maquachakes
took “hold to the Chain of Friendship & mind nothing else.” Seven-
teen Maquachake families under Kishanosity, Oweeconne, and
Nimwha, Cornstalk’s brother, moved to Coshocton and, in White
Eyes’ words, “became the same people.”18 The Maquachake division
remained the most inclined to peace throughout the war.19 Corn-
stalk’s sister, Nonhelema, the “Grenadier Squaw,” consistently sup-
ported the American cause.20 But as concern over American encroach-
ments grew, more Shawnees accepted Hamilton’s war belt in the
spring of 1778.21

The nation divided over the question of continued and perhaps
endless resistance to the Americans. Many Maquachakes and
Kispokis wanted peace, but most Chillicothes and Piquas remained
cool to the Americans and favored joining the Mingoes.22 Kikus-
gawlowa (Kishkalwa) had led part of the Thawekilas south into Creek
country in 1774, brought them back to the Ohio years later, and then
moved west of the Mississippi.23 Also by early 1774, 170 families had
“packed up everything” and removed from the Scioto, rather than “be
Hemmed in on all Sides by the White People, and then be at their
mercy.”24 Others followed suit, and by 1779 or 1780 some 1,200
Shawnees, primarily from the Thawekila, Piqua, and Kispoki divi-
sions, led by Yellow Hawk and Black Stump, had begun to leave their
Ohio homelands and migrated west to Missouri, where they took up
lands near Cape Girardeau under the auspices of the Spanish govern-
ment. Long-distance migration was nothing new: Shawnee traditions
say they began to cross the Mississippi as early as 1763, and Missouri
Indians killed a Shawnee chief in the west in 1773. But no early
migrations split the nation like this one. Shawnee movements in the
west continued, and Shawnee history after the Revolution has to be
traced in Missouri, Kansas, Texas, and Oklahoma, as well as in Ohio
and Indiana.25

The Shawnees who remained in Ohio were mainly Chillicothes
and Maquachakes, with an amalgam of members from other divi-
sions who refused to leave their homelands. The Maquachakes may
have continued to hope for accommodation with the Americans, but
when Daniel Brodhead sent the Shawnees a speech in 1779 advising
them to listen to the peace-minded Delawares and ignore British
agents who had come 3,000 miles “only to Rob & Steal,” the warriors
burned it in defiance.26 Shawnee emissaries carried the war hatchet
south to Creek country.27 Thomas Jefferson wanted to see the Ohio
Shawnees exterminated or driven from their lands, and he advocated
turning other tribes against them.28 American invasions of Shawnee
country became almost an annual event, and the Shawnees’ Revo-
lution became a story of “Drums Along the Miami,” as American

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 43

troops burned crops and villages, while American forts on the
perimeters of their country kept Shawnee communities on a war
footing.

In 1779, with the Shawnees badly weakened by recent out-migra-
tions, John Bowman led an inglorious campaign from Kentucky
against the principal town of Chillicothe. A handful of warriors
repelled and harassed the attackers, but Chief Black Fish suffered a
mortal wound. A severe winter followed, and Shawnee emissaries
urged the British to provide the support they had promised.29
Nevertheless, Shawnees were active on the frontiers the following
spring: The British at Detroit reported that the Shawnees and their
allies were bringing in scalps every day, “having at present a great
field to act upon.”30

In 1780, the Shawnees burned Chillicothe themselves rather than
let it fall to George Rogers Clark. Luring the Americans on to ground
of their own choosing, they fought a full-scale battle at Piqua on the
Mad River, until Clark turned his artillery on the village council
house where many of the people had taken refuge. Clark described
the town as “composed of well built cabins located along the river,
each surrounded by a strip of corn,” and his men spent two days
burning cornfields and plundering Shawnee graves for burial goods
and scalps. The inhabitants of Piqua withdrew and rebuilt their town
on the Great Miami River. Shawnee losses were slight, but the
destruction of their corn hit them hard “on account of our Women
and Children who are left now destitute of Shelter in the Woods or

Food to subsist upon.” Captive Mary Erskine said the Shawnees lived
the whole winter on meat, and refugees filtered into Detroit in search
of food and shelter from the British, just as Iroquois refugees fled to
Niagara after Sullivan’s expedition.31 In council at Detroit the follow-
ing spring, Wry Neck urged the British to gather their soldiers and
muster the Lake tribes to support the Shawnee war effort. “We see
ourselves weak and our arms feeble to the force of the enemy,” said
the Shawnee chief. “‘Tis now upwards of Twenty Years since we have
been alone engaged against the Virginians.”32

Clark was back in Shawnee country in the fall of 1782. According
to Daniel Boone, who accompanied the expedition, Clark burned five
villages, “entirely destroyed their corn and other fruits, and spread
desolation through their country.” Most of the warriors were absent
when Clark attacked, and reports of atrocities by “the white Savages
Virginians” flew through Indian country. But the Shawnees refused
to be drawn into open battle and evidently suffered minimal losses. 33

American strikes continued after the Revolution, with Kentucky
militia staging regular incursions across the Ohio. The Maquachakes
returned their war belts to the British in 1784, signifying their inten-
tion to remain at peace, and their chief Molontha was the voice of

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44 AMERICAN INDIAN QUARTERLY, WINTER 1992

accommodation at the Treaty of Fort Finney in January 1786.34 But
months later Benjamin Logan’s Kentucky militia conducted “a wild
scampering foray” into Shawnee country. They burned Maquachake
villages, killed some women and children, and hatcheted Molontha to
death under his American flag. “Logan found none but old men,
women and children in the towns,” said Ebenezer Denny: “They
made no resistance; the men were literally murdered.”35 In 1787
Robert Todd burned the old Chillicothe town on Paint Creek and
killed a handful of Indians.36 General Josiah Harmar burned more vil-

lages and crops in 1790.37 Chillicothe was attacked four times
between 1779 and 1790, but the Shawnees kept rebuilding it with the
same name in different locations.a8

Even when not subjected to direct assault on their villages, the
Shawnees suffered heavily. Recurrent invasion and forced migration
no doubt disrupted the Shawnee ceremonial calendar, which, for
instance, observed the Green Corn Festival during the summer
months when the Americans targeted their attacks on Shawnee vil-
lages.39 As among the Iroquois, continual fighting and the loss of men
who knew the ceremonies meant that traditional rituals of preparing
and going to war became neglected, disrupted, or imperfectly per-
formed.40

Warriors could not provide for their families when away on cam-
paign, and loss of vital crops of squash, corn, and beans meant
increased reliance on hunting at a time when hunters were not avail-
able. Similar dietary imbalance among the Mohawks produced
widespread sickness. Already dependent on outsiders for firearms
and manufactured goods, Shawnees now looked to the British for
food and other necessities. But the British, stretched to the limit, dis-
couraged them from congregating at Detroit and sent out war parties
as a means of relieving the pressure on the king’s stores.41

The war altered the location and composition of Shawnee com-
munities. Indian villages were not exclusive ethnic units, but in the
chaos of the Revolution, Shawnee communities splintered and
restructured. Each American invasion caused a renewed shift to the

northwest until the Shawnee population became congregated in new
towns on the Auglaize and Maumee rivers. While some families
migrated west or took up residence with the Delawares, others moved
south to Cherokee and Creek country, where they joined southern
warriors in their fight, and by 1791 there were four Shawnee towns
on the Tallapoosee River.42 Physical movement was a relatively sim-
ple operation for the Shawnees, as their lodges “could be built easily
in a few days, and were abandoned with little concern,” but leaving
familiar sites doubtless took an economic and emotional toll.
Moreover, transportation of a division’s sacred bundle was of primary
concern in such movements, since desecration courted disaster, and

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 45

splinter groups who remained behind or moved away from the rest of
the division presumably found themselves without the protection of a
sacred bundle.43

Meanwhile, Mingoes, Senecas, and Cherokees joined Shawnee
communities to continue the war effort. Moravian missionary
Reverend John Heckewelder reported, “The Shawnees lost many of
their men during these contests; but they were in a manner replaced
by individuals of other nations joining them,” and he noted that
about one hundred “turbulent Cherokees” came over to the Shaw-

nees. Shawnee towns took on the appearance of renegade strong-
holds in American eyes.44 The distinctions and particular responsibili-
ties of the five ancient Shawnee divisions seem to have become

blurred as some groups migrated west of the Mississippi and, by the
war’s end, Shawnee families from the several divisions crowded into
the towns not destroyed by Clark. After the war, Shawnee towns on
the Glaize became part of a multi-tribal community.45

The Revolution also intensified shifts in leadership. The principal
war chief, Kishanosity, was discredited after Dunmore’s War “on
which acct. the Shawanese have thrown him down and have taken all

his Power out of his Hands.” Henceforth Kishanosity took a peaceful
stance, along with Wryneck, Nimwha, and Cornstalk.46 The latter’s
murder left a void among the Maquachakes, as did the death of Black
Fish at Chillicothe in 1779. Black Snake handed over leadership of
the Kispokis to Yellow Hawk when he chose to remain in Ohio.
Nimwha died in 1780.47 Molontha was killed in 1786. Black Hoof did
not attain prominence until after the Revolution.

Traditionally, Shawnee chiefs were expected to be peaceful.
Village chiefs took precedence over war chiefs in council, and war
chiefs assumed only temporary responsibility for the conduct of expe-
ditions after obtaining the advice of the council. But endemic warfare
enhanced the prestige of war leaders. With communities on a perma-
nent war footing, the traditional surrender of power by the village
chiefs became unnecessary, and the normally temporary authority of
war leaders assumed permanent status. As early as 1774, Shawnees
reported, “Our People at the lower Towns have no Chiefs amongst
them but all are Warriors,” and in 1777 chiefs were unable to control
warriors who had fallen under the influence of the bellicose Mingoes:
“When I speak to them they will attend for a Moment & sit still whilst
they are within my Sight… at night they steal their Blankets & run
off to where the evil Spirit leads them.” Virginia’s Indian commis-
sioners reckoned that of all tribes Shawnee chiefs had least control
over their warriors. The presence of members of other tribes in their
villages further limited the chiefs’ authority. Maquachake and
Kispoki delegates in 1778 attributed all the trouble to Mingoes “who
live among us and will not listen to us.”48

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46 AMERICAN INDIAN QUARTERLY, WINTER 1992

The authority of the elder chiefs was further undermined by a
new generation of warriors who came of age during the Twenty Years
War. At the Treaty of Fort Finney in January 1786, Richard Butler
found “that many of the young fellows which have grown up through
the course of the war, and trained like young hounds to blood, have a
great attachment to the British; . . . the chiefs of any repute are and
have been averse to the war, but their influence is not of sufficient
weight to prevent them from committing mischief, which they regret
very much.”49 Six years later, in meetings held at the Glaize, Shawnee
war leaders sat in front of civil chiefs at the councils, contrary to tra-
ditionally accepted seating arrangements.50 This new generation of
warriors carried the fight into the next century and new leaders like
Tecumseh attracted followings that cut across traditional patterns,
or, as Americans saw things, were outlaws from other tribes.51

While traditional leaders struggled with the new times, outsiders
exerted increasing influence in Shawnee councils. Allies dispensed
guns and support via client chiefs. Indian agents like James and
Simon Girty, Matthew Elliott, and Alexander McKee acted as vital
intermediaries between the Shawnees and their British allies, and
served as conduits through which supplies and gifts flowed to
Shawnee villages. McKee, Elliott, and James Girty had Shawnee
wives and extensive kinship ties in Shawnee villages. They accompa-
nied Shawnee warriors into battle, enjoyed standing in Shawnee
councils, and perhaps even influenced the relocation of Shawnee
towns. British observers agreed on McKee’s remarkable influence
over the Shawnees, while Daniel Brodhead, offering rewards for
McKee and the Girty brothers, voiced the American line that “the
Shawanese would not have been so foolish if it was not put into their
heads by some bad people who live with them & are paid by the
English to tell them lyes.”52

By 1782, the Revolution had become a total war for the
Shawnees. When Clark invaded their country that year, boys, old
men, and women marched out to fight, together with “every man…
who was able to crawl.”s3 Traditionally, Shawnees had often adopted
captives to help maintain population levels, but now, with the war
taking its toll, captives were painted black and marked for death with
increasing frequency. Even so, the Shawnees still held in “mild cap-
tivity” the prisoners they had formerly taken; only those recently cap-
tured who had threatened their extermination were put to death.54
Shawnee warriors carried the war to the Americans, participated in
the rout of the Kentuckians at Blue Licks, and assisted in the defeat
of William Crawford’s expedition in 1782.55

Then, just as it seemed the Shawnees were winning their war,
Britain snatched them from the jaws of victory. British officers and
agents were suddenly urging the chiefs to restrain their warriors and

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 47

tried to sell them the Peace of Paris as offering a new era of peace
with the Americans. When hunters from Chillicothe lost stock to

American horse thieves in the summer of 1783, Major De Peyster at
Detroit regretted their loss but pointed out “the times are very Critical
… the World wants to be at Peace & its time they should be so.” If
the Shawnees took action, “it must be an affair of your own, as your
Father can take no part in it.”56

This was the real disaster of the Revolution for the Shawnees.
Independence unleashed a flood of settlers and speculators. Between
1775 and 1790, some 80,000 non-Indians poured into Shawnee coun-
try.57 With Simon Girty interpreting, Captain Johnny told the Ameri-
cans in 1785, “you are drawing so close to us that we can almost hear
the noise of your axes felling our Trees and settling our Country,” and
warned that if settlers crossed the Ohio “we shall take up a Rod and
whip them back to your side.”ss Disgruntled Shawnees met the
American commissioners Richard Butler and George Rogers Clark at
Fort Finney in 1786, “complaining that we were putting them to live
on ponds, and leaving them no land to live or raise corn on.” Despite
a defiant speech by the head warrior Kekewepelethe, the Shawnees
ceded tribal lands east of the Great Miami, warning the Americans,
“this is not the way to make a good or lasting Peace to take our Chiefs
Prisoners and come with Soldiers at your Backs.”59 More Shawnees
migrated across the Mississippi-some two hundred Shawnees and
Delawares left their villages on the Miami in the summer of 1787 and
settled in the west-but British predictions that the Shawnees’ fight
for their lands would continue proved accurate.60

Burned villages and crops, murdered chiefs, divided councils,
economic disruption, migrations, losses in battle, and betrayal to
their enemies all made the Revolution one of the darkest periods in
Shawnee history. In reading the reports of American commanders, it
is easy to assume that their expeditions into Shawnee country admin-
istered knockout blows. The strategy of burning crops and villages
late in the season certainly produced terrible suffering, but burning
villages and killing noncombatants do not necessarily destroy a peo-
ple’s capacity for resistance or their will to win. The Shawnees pulled
back as American armies advanced into their country, watched as the
troops torched villages and cornfields, and then returned or rebuilt
new homes in safer locations after the enemy departed. Shawnee
communities survived the destruction of their villages, albeit often in
altered form. Untouched food sources beyond the reach of American
strikes, and British supplies at Detroit, sustained the Shawnee war
effort into the 1790s. George Rogers Clark recognized the futility of
destroying Indian towns “when they can get four fold what they lose
from the English,” and Alexander McKee agreed.61 Not until 1794 did
the Americans get at the extensive cornfields on the Auglaize and

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48 AMERICAN INDIAN QUARTERLY, WINTER 1992

Maumee rivers, which Anthony Wayne described as “the grand empo-
rium of the hostile Indians of the West.”62

For a time during the Revolution, many Shawnees came to iden-
tify Britain’s cause as their own, and the dwindling of British support
hit them hard. But the struggle that terminated for redcoats and
patriots in 1783 did not end for the Shawnees. The Shawnees carried
on the fight for another dozen years and took a leading role in an
emerging multi-tribal confederacy. By 1795 the war for Ohio was
lost, the old chiefs sought accommodation with the Americans, and
the people underwent further migrations. Defeat, loss of land, and
continued disruption of traditional ways generated further upheaval
and despair in Shawnee communities. But out of chaos came
renewed hope, as the Shawnee Prophet preached moral and religious
reform and Tecumseh led a pan-Indian defense of remaining tribal
lands.63 As a new century got under way, Shawnees once again found
themselves at the frontier of resistance to American expansion.

NOTES

A version of this paper was presented at the 1990 Meeting of the
Organization of American Historians. Research for this work has been supported
by grants and awards from the National Endowment for the Humanities; the
University of Wyoming (basic research grant and faculty grant-in-aid); the David
Library of the American Revolution, Washington Crossing, Pennsylvania; and the
Beinecke Library, Yale University.

1. Even writers who focus their attention on the Indians rarely examine their
experiences. See S.F. Wise, “The American Revolution and Indian History,” in
Character and Circumstance: Essays in Honour of Donald Grant Creighton, John S.
Moir, ed. (Toronto: Macmillan of Canada, 1970), pp. 182-200; Francis Jennings, “The
Indians’ Revolution,” in Explorations in the History of American Radicalism, Alfred F.
Young, ed. (DeKalb: Northern Illinois University Press, 1976); idem., ed., The American
Indian and the American Revolution (Chicago: Occasional Papers of the Newberry
Library Center for the History of the American Revolution, 1983); Kenneth Morrison,
“Native Americans and the American Revolution: Historic Stories and Shifting Frontier
Conflict,” in Indians in American History, Frederick E. Hoxie, ed. (Arlington Heights,
IL: Harlan Davidson, 1988), pp. 95-115; Bernard Sheehan, “The Problem of the Indian
in the American Revolution,” in The American Indian Experience, Philip Weeks, ed.
(Arlington Heights, IL: Forum Press, 1988), pp. 66-80; Barbara Graymont, The Iroquois
in the American Revolution (Syracuse: Syracuse University Press, 1972) and James
O’Donnell III, The Southern Indians in the American Revolution (Knoxville: University
of Tennessee Press, 1973) more closely examine Indian involvement in the Revolution,
and O’Donnell is currently working on a book that promises to tell the story of the
Revolution for the northern and western Indians.

2. Correspondence and Papers of Sir Frederick Haldimand, British Museum,
Additional Mss. 21782: 302.

3. Spellings of the names of these divisions vary considerably. See Vernon
Kinietz and Erminie Voegelin, eds., “Shawnese Traditions: C.C. Trowbridge’s Account,”
Occasional Contributions from the Museum of Anthropology of the University of
Michigan 9 (June 1939), pp. xiii-xiv, 8; Thomas Wildcat Alford, Civilization and the
Story of the Absentee Shawnees, as told to Florence Drake (Norman: University of
Oklahoma Press, 1936), p. 44; James H. Howard, Shawnee!: The Ceremonialism of a
Native American Tribe and Its Cultural Background (Athens: Ohio University Press,
1981), pp. 25-30, 213-222.

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 49

4. Howard, Shawnee, pp. 4-5, 31, 127-128ff; Reuben G. Thwaites, ed., The Jesuit
Relations and Allied Documents, 73 vols. (Cleveland: Burrows Bros, 1896-1901), vol. 59:
pp. 144-145; Helen Hornbeck Tanner, “The Greenville Treaty, 1795,” in Erminie
Wheeler-Voegelin and Helen Hornbeck Tanner, Indians of Ohio and Indiana Prior to
1795, 2 vols. (New York: Garland Publishing Co., 1974) 1: 66-67; Kinietz and Voegelin,
eds., “Shawnese Traditions,” p. 9.

5. K.G. Davies, ed., Documents of the American Revolution, 21 vols. (Shannon:
Irish University Press, 1972–81) 1: 159, 315; 2: 22, 24, 28, 87, 105, 204, 253-254,
261-262.

6. Jack M. Sosin, “The British Indian Department and Dunmore’s War,” Virginia
Magazine of History and Biography 74 (Jan. 1966), pp. 34-50; Alexander McKee,
“Journal of Negotiations with Indians at Pittsburgh, May-June 1774,” Library of
Congress, Peter Force Transcripts, Series 8D, reel 49, item 93; “Extract of a Journal of
Indian Transactions, from Feb. 27, 1774,” and [John Connolly] “Journal of my
Proceedings… from April 6, 1774,” and “Extract from my Journal from 1 May, 1774,”
all in New York Public Library, Chalmers Collection, Papers relating to Indians;
Davies, ed., Documents of the American Revolution 7: 143, 174, 223, 263; 9: 24, 47; E.B.
O’Callaghan, ed., Documents Relating to the Colonial History of the State of New York,
15 vols. (Albany: Weed & Parsons, 1855-61), vol. 8: 506-508.

7. Tanner in Voegelin and Tanner, Indians of Ohio and Indiana, 1: 102.
8. Robert L. Scribner, et al., eds., Revolutionary Virginia, The Road to Indepen-

dence: A Documentary Record, 7 vols. (University Press of Virginia, 1973-83), vol. 7: 770.
9. “Butler’s Journal,” Western Pennsylvania Magazine of History 47: 145, 148;

Reuben Gold Thwaites and Louise Phelps Kellogg, eds., The Revolution on the Upper
Ohio, 1775-1777 (Madison: Wisconsin Historical Society, 1908), pp. 24-25, 39, 41-42,
58, 60-61, 75, 112; Scribner et al., eds., Revolutionary Virginia, 3: 208-266, 316-317,
377, 383-384, 388-390; 4: 15, 140-141, 184-190, 193-196, 222-224.

10. William L. Saunders, ed., The Colonial Records of North Carolina (Raleigh:
Dept. of State, 1886-90) 10: 660-661; 763-785; Davies, ed., Documents of the American
Revolution 12: 191-208.

11. Thwaites and Kellogg, eds., Revolution on the Upper Ohio, pp. 216-217; Peter
Force, ed., American Archives, 9 vols. (Washington, D.C., 1837-53), 5th series, 3:
599-600; George Morgan Letterbook, Carnegie Library, Pittsburgh, 3 vols., 1775-1779,
1: 13; 2: 19-21.

12. Ernest H. Howerton, “Logan, the Shawnee Indian Capital of West Virginia,
1760-1780,” West Virginia History 16 (July 1955): 325.

13. P. Henry to George Morgan, March 12, 1777; Answers to Queries …, Jan.
1778, George Morgan Papers, Library of Congress; George Morgan Letterbook, 1: 13,
32; Pennsylvania Archives, 1st series, 5 (1853): 258-259, 443-444.

14. Force, ed., American Archives, 5th series, 3: 600; Thwaites and Kellogg, eds.,
Revolution on the Upper Ohio, pp. 14-15; Draper mss., Wisconsin State Historical
Society, 2YY92; North Carolina Colonial Records 10: 386; Morgan Letterbook, 1: 47-48,
57, 85.

15. Draper mss. 1U68; National Archives microfilm, Papers of the Continental
Congress (hereafter PCC), reel 180, item 163: 278; Reuben G. Thwaites and Louise P.
Kellogg, eds., Frontier Defense on the Upper Ohio, 1777-1778 (Madison: Wisconsin
Historical Society, 1912), pp. 20, 25.

16. John Johnston, “Recollections of Sixty Years,” in John Johnston and the
Indians in the Land of the Three Miamis, Leonard U. Hill, ed. (Piqua, OH, 1957), p. 189.

17. On Cornstalk’s murder see Charles A. Stuart, ed., Memoir of Indian Wars and
other occurrences, by the Late Colonel Stuart, of Greenbrier (New York: Arno Press
reprint, 1971), pp. 60-62; Draper mss. 3D164-73, 2YY91-94; Edward Hand Papers,
Library of Congress, Series 7E, reel 13, item 55: Letterbook, 35-39, 45, 48; Thwaites
and Kellogg, eds., Frontier Defense on the Upper Ohio, pp. 126-127, 149, 157-163,
175-177, 188-189, 205-209, 258-261.

18. Haldimand Papers 21782: 297: Hand Papers, Letterbook: 61, 16(55); PCC, reel
91, item 78, vol. 1: 420; Thwaites and Kellogg, eds., Frontier Defense, pp. 166, 242;
Louise P. Kellogg, ed., Frontier Advance on the Upper Ohio 1778-1779 (Madison:
Wisconsin Historical Society, 1916), pp. 91, 110, 143, 193, 234, 245; Morgan
Letterbook, 3: 27, 54, 56, 96.

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50 AMERICAN INDIAN QUARTERLY, WINTER 1992

19. E.g., J. Almon, The Remembrancer (London, 1775-1784), 1780, part 1: 152-158.
20. PCC reel 37, item 30: 371-373; reel 69, item 56: 169-170; Draper mss. 3D39,

14S158-60: Hand Papers, Letterbook: 40.
21. “McKee’s report…,” June 28, 1778, New York Public Library, Chalmers

Collection, Papers relating to Indians; Haldimand Papers 21781: 28; Collections of the
Michigan Pioneer and Historical Society, 40 vols. (Lansing, 1874-1929, hereafter
MPHC) 9 (1886), pp. 434, 442-458; Thwaites and Kellogg, eds., Frontier Defense, p. 282.

22. Edward Hand Papers, Library of Congress, Peter Force Transcripts, series 7E,
reel 13, item 55: 262, 234; Pennsylvania Archives 1st series, 12: 179-180.

23. Alford, Civilization, pp. 200-201; Thomas L. McKenney and James Hall,
History of the Indian Tribes of North America, with Biographical Sketches and Anecdotes
of the Principal Chiefs, 3 vols. (Philadelphia: Edward C. Biddle, 1836-44), 1: 15-18;
William A. Galloway, Old Chillicothe (Xenia, Ohio: Buckeye Press, 1934), p. 40

24. Milton W. Hamilton et al., eds., The Papers of Sir William Johnson, 14 vols.
(Albany: University of the State of New York, 1921-1965) 12: 1052.

25. Jerry Eugene Clark, “Shawnee Indian Migration: A System Analysis,” Ph.D.
dissertation, University of Kentucky, 1974, pp. 52-53; Kinietz and Voegelin, eds.
“Shawnese Traditions,” p. xiv.; Howard, Shawnee, pp. 15-16; Thomas Wildcat Alford,
Civilization, pp. 10n-lln, 201; Galloway, Old Chillicothe, pp. 41-42, 56, 181-182.
References to a Shawnee who had been to New Orleans and to the chief killed by
Missouris are in Davies, ed., Documents of the American Revolution 4: 374-375; 5: 279.

26. Draper mss. 1H54, 2H10; Pennsylvania Archives 1st series, 12: 120; Kellogg,
ed., Frontier Advance, pp. 279-280, 349.

27. Haldimand Papers 21782: 181-182, 247.
28. Julian P. Boyd, ed., The Papers of Thomas Jefferson (Princeton, N.J.: Princeton

University Press, 1950), vol. 3: 259, 276.
29. Draper mss. 5D1-20, 27, 49J90; Haldimand Papers 21757: 304-305; 21760:

147; 21782: 301-303; “Bowman’s Expedition against Chillicothe, May-June 1779,” Ohio
Archaeological and Historical Publications 19 (1910): 446-459; “Bowman’s Campaign of
1779,” ibid. 22 (1913): 502-519.

30. Haldimand Papers 21781: 74.
31. James Alton James, ed., George Rogers Clark Papers, 1771-1781 (Springfield:

Illinois State Historical Library, 1912), pp. cxxxix-cxli, 451-453, 476-484; Boyd, Papers
of Thomas Jefferson, vol. 3: 560-561, 670; Galloway, Old Chillicothe, pp. 67-68; Draper
mss. 8J136-40, pp. 21-212, 265; 11J24; 26D101; 26J3-5; Haldimand Papers 21781:
75-77; 21782: 383; MPHC 10 (1886), 418-423; John H. Moore, “A Captive of the
Shawnees, 1779-1784,” West Virginia History 23 (1962): 291. The main reports of the
expedition are compiled in J. Martin West, ed., Clark’s Shawnee Campaign of 1780:
Contemporary Accounts (Springfield, OH: The Clark County Historical Society, 1975).

32. MPHC 10: 462-465.

33. Draper mss. 8J320-22, 11J24, 11S160-62, 1AA275-77; Claus Papers, National
Archives of Canada, MG 19 F1 3: 189-190; Colonial Office Records, Public Record
Office, Kew, England, C.O.5/109: 49; C.O. 42/15: 381; Haldimand Papers, 21717: 158;
21775: 49; 21756: 88, 91, 93-95, 125-128, 132, 135; 21762: 328, 230; 21763: 1; 21775:
49; 21779: 109-110; 21781: 88; “Journal of Daniel Boone,” Ohio Archaeological and
Historical Publications 13 (1904): 276.

34. MPHC 25: 690.

35. PCC reel 85, item 7, vol. 2: 471; William Henry Smith, ed., St. Clair Papers: The
Life and Public Services of Arthur St. Clair, … With His Correspondence and Other
Papers, 2 vols. (Cincinnati: Robert Clarke & Co., 1882) 2: 19; Draper mss. 8J242,
11YY13; Haldimand Papers 21736: 262-263; MPHC 24 (1895): 34-35; “Logan’s
Campaign, 1786,” Ohio Archaeological and Historical Publications 22 (1913): 520-521;
The Military Journal of Major Ebenezer Denny (Philadelphia: J.B. Lippincot & Co.,
1859), p. 94.

36. Erminie Wheeler Voegelin, “Ethnohistory of Indian Use and Occupancy in
Ohio and Indiana Prior to 1795,” in Indians of Ohio and Indiana, Tanner and Voegelin,
eds. 2: 535-536, citing Draper mss. 9BB57, 60, 20S59-60, 23CC42-43, 4BB112.

37. “General Harmar’s Expedition,” Ohio Archaeological and Historical
Publications 20 (1911): 74-108; Military Journal of Ebenezer Denny, pp. 146-147.

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THE AMERICAN REVOLUTION IN SHAWNEE COUNTRY 51

38. Galloway, Old Chillicothe, p. 43; “General Harmar’s daily log,” Ohio
Archaeological and Historical Quarterly 20: 94. On the movement of the various
Shawnee towns see Voegelin in Indians of Ohio and Indiana 2: passim, esp. 532-536,
553ff; Helen H. Tanner, Atlas of Great Lakes Indian History (Norman: University of
Oklahoma Press, 1987), pp. 79-91; Hill, John Johnston and the Indians in the Land of
the Three Miamis, vol. 6.

39. Howard, Shawnee, pp. 233, 269-272.
40. Howard, Shawnee, pp. 115-116; Dorothy V. Jones, License for Empire:

Colonialism by Treaty in Early America (Chicago: Chicago University Press, 1982), p. 131.
41. Haldimand Papers 21765: 34-35, 21774: 7; Claus Papers, 3: 45-47; MPHC 10

(1886), pp. 423, 343; 19 (1891), p. 461.
42. Davies, ed., Documents of the American Revolution 17: 121; Caleb Swan,

“Position and State of Manners and Arts in the Creek or Muscoggee Nation in 1791,” in
Historical and Statistical Information Respecting the History, Condition, and Prospects of
the Indian Tribes of the United States, 6 vols., Henry Rowe Schoolcraft, ed.
(Philadelphia, 1851-57); 5: 263; Henry Harvey, History of the Shawnee Indians, from the
Year 1681 to 1854 (Cincinnati: Ephraim Morgan and Sons, 1855), pp. 98-99.

43. Thomas Wildcat Alford, in Galloway Old Chillicothe, p. 175; Howard,
Shawnee, pp. 96, 213, 215, 219.

44. John Heckewelder, History, Manners, and Customs of the Indian Nations Who
Once Inhabited Pennsylvania and the Neighboring States (New York: Arno Press
Reprint, 1971), p. 89; Haldimand Papers 21763: 25; PCC reel 69, item 56: 249; Louise P.
Kellogg, ed., Frontier Retreat on the Upper Ohio 1779-1781 (Madison: Wisconsin
Historical Society, 1917) pp. 1, 173; MPHC 20 (1892), p. 96; Pennsylvania Archives 1st
series, 12: 223.

45. Alford in Galloway, Old Chillicothe, p. 21; Howard, Shawnee, p. 86; R. David
Edmunds, Tecumseh and the Quest for Indian Leadership (Boston: Little, Brown & Co.,
1984), pp. 46-47; Helen Hornbeck Tanner, “The Glaize in 1792: A Composite Indian
Community,” Ethnohistory 25 (Winter 1978): 15-39.

46. New York Public Library, Chalmers Collection, Papers relating to Indians,
“Extract of my Journal,” 50; PCC, reel 91, item 78, vol. 1: 420; Draper mss. 1H17
(Wryneck for peace) 1H44 (Nimwha to discuss Delaware peace initiative at Shawnees’
main town); Paul Lawrence Stevens, “His Majesty’s ‘Savage’ Allies: British Policy and
the Northern Indians During the Revolutionary War, The Carleton Years, 1774-1778,”
Ph.D. dissertation, State University of New York, Buffalo, 1984, 217-218, 1940.

47. Draper mss. 1H126.
48. Howard, Shawnee, pp. 96, 108; cf., by the time C.C. Trowbridge gathered his

information from the Shawnee Prophet, generations of warfare had apparently made
the office of war chief more prestigious than that of the village chief. Kinietz and
Voegelin, “Shawnese Traditions,” pp. 11-13, 17. McKee, “Journal of Negotiations with
Indians at Pittsburgh,” p. 10; Morgan Letterbook, 1: 57; Scribner et al., eds.,
Revolutionary Virginia 4: 209, 250; Hand Papers, reel 13, item 55.

49. Neville B. Craig, ed., The Olden Time, 2 vols. (Cincinnati: Robert Clarke and
Co., 1876) 2: 515.

50. Tanner, “The Glaize in 1792,” p. 32; B.H. Coates, ed., “A Narrative of an
Embassy to the Western Indians from the Original Manuscript of Hendrick Aupau-
mut,” Memoirs of the Historical Society of Pennsylvania 2 (1827), pt. 1: 118.

51. Johnston, “Recollections of Sixty Years,” in Hill, John Johnston and the
Indians, p. 154.

52. Haldimand Papers 21767: 73; 21781: 29; J. Watts DePeyster, ed., Miscellanies
by an Officer, by Colonel Arent Schuyler de Peyster, 1774-1813 (New York: A.E. Chasmer
& Co., 1888), p. xxxiv; MPHC 19 (1891), p. 533; Moore, “A Captive of the Shawnees,
1779-1784,” pp. 292-293; Voegelin in Voegelin and Tanner, Indians of Ohio and
Indiana 2: 535; Kellogg, ed., Frontier Retreat, p. 299; Craig, ed., The Olden Time 2: 487.

53. Draper mss. 1AA 276-277.
54. Claus Papers 3: 147-148, 156; Haldimand Papers 21762: 116; C.C. Trow-

bridge, “Shawnese Traditions,” cited in Howard, Shawnee, 125.
55. Haldimand Papers 21762: 149-150; 21781: 85-86.

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52 AMERICAN INDIAN QUARTERLY, WINTER 1992

56. Colin G. Calloway, Crown and Calumet: British-Indian Relations, 1783-1815
(Norman: University of Oklahoma Press, 1987), pp. 3-23; Claus Papers 3: 219; MPHC
20 (1892), 122-123, 153-154; DePeyster, Miscellanies by an Officer, xxxix-xl; MPHC 20
(1892), pp. 153-154.

57. Peter H. Wood, “The Changing Population of the Colonial South: An Overview
by Race and Region, 1685-1790,” in Peter H. Wood, Gregory A. Waselkov, and M.
Thomas Hatley, eds., Powhatan’s Mantle (Lincoln: University of Nebraska Press, 1989),
p. 86; MPHC 19 (1891), p. 519; G. Imlay, A Topographical Description of the Western
Territory of North America (London: J. Debrett, 1792), pp. 24, 67.

58. “At a Council held at Wakitunikee, May 18, 1785,” British Museum, Miscel-
laneous American Papers, Additional Mss., 24,322; also in Public Records Office, C.O.
42/47:370-71; Haldimand Papers, and MPHC 25: 691-693; cf. PCC reel 69, item 56:
113-115 and North Carolina Colonial Records 17: 159-160.

59. Military Journal of Major Ebenezer Denny, 63ff; Craig, ed., The Olden Time 2:
512-531.

60. Haldimand Papers 21775: 178; 21781: 86; MPHC 10: 650; Military Journal of
Ebenezer Denny, 105.

61. James, ed., George Rogers Clark Papers, 381-383, 605; Draper mss. 26J127-28;
MPHC 19 (1891), p. 598.

62. Galloway, Old Chillicothe, 44, 67n13. Wayne’s quote is in American State
Papers, Indian Affairs, 1: 490, and in Hill, John Johnston and the Indians, pp. 6-7.

63. R. David Edmunds, The Shawnee Prophet (Lincoln: University of Nebraska
Press, 1983).

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Contents

39
40
41
42
43
44
45
46
47
48
49
50
51
52

Issue Table of Contents

American Indian Quarterly, Vol. 16, No. 1 (Winter, 1992), pp. i-iv+1-134
Front Matter [pp. i-iv]
Struggle for Power: The Impact of Southern Cheyenne and Arapaho “Schoolboys” on Tribal Politics [pp. 1-24]
Protestant Missionaries and Native Culture: Parallel Careers of Asher Wright and Silas T. Rand [pp. 25-37]
“We Have Always Been the Frontier”: The American Revolution in Shawnee Country [pp. 39-52]
“No One Ever Did This to Me before”: Contemporary American Indian Texts in the Classroom [pp. 53-61]
The Values and Vision of a Collective Past: An Interview with Anna Lee Walters [pp. 63-73]
Review Article
Review: untitled [pp. 75-81]
Book Reviews
Review: untitled [pp. 83-84]
Review: untitled [pp. 85-86]
Review: untitled [pp. 86-88]
Review: untitled [pp. 88-89]
Review: untitled [pp. 89-91]
Review: untitled [pp. 91-92]
Review: untitled [pp. 92-94]
Review: untitled [pp. 94-95]
Review: untitled [pp. 95-96]
Review: untitled [pp. 97-98]
Review: untitled [pp. 98-100]
Review: untitled [pp. 100-101]
Review: untitled [pp. 101-102]
Review: untitled [pp. 102-104]
Review: untitled [pp. 104-105]
Review: untitled [pp. 105-106]
Review: untitled [pp. 106-107]
Review: untitled [pp. 107-108]
Review: untitled [pp. 108-109]
Review: untitled [pp. 109-110]
Review: untitled [pp. 110-113]
Review: untitled [pp. 113-115]
Review: untitled [pp. 115-116]
Review: untitled [pp. 116-118]
Review: untitled [pp. 118-119]
Review: untitled [pp. 120-121]
Review: untitled [pp. 121-123]
Review: untitled [pp. 123-124]
Review: untitled [pp. 124-125]
Review: untitled [pp. 125-127]
Review: untitled [pp. 127-128]
Books Received [pp. 129-133]
Back Matter [pp. 134-134]

FEDERALIST NO. 10

The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection

From the New York Packet
Friday, November 23, 1787.

Author: James Madison

To the People of the State of New York:

AMONG the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

FEDERALIST NO. 51

The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments

From the New York Packet
Friday, February 8, 1788.

Author: Alexander Hamilton or James Madison

To the People of the State of New York:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified. An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test. There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance 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 interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent 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 danger from interested combinations of the majority. In a free government the security for civil rights must be the same as that for religious 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; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. 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 majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS

FEDERALIST NO. 78

The Judiciary Department
From McLEAN’S Edition, New York.

Author: Alexander Hamilton

To the People of the State of New York:

WE PROCEED now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out. It is the less necessary to recapitulate the considerations there urged, as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2d. The tenure by which they are to hold their places. 3d. The partition of the judiciary authority between different courts, and their relations to each other.

First. As to the mode of appointing the judges; this is the same with that of appointing the officers of the Union in general, and has been so fully discussed in the two last numbers, that nothing can be said here which would not be useless repetition.

Second. As to the tenure by which the judges are to hold their places; this chiefly concerns their duration in office; the provisions for their support; the precautions for their responsibility.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR; which is conformable to the most approved of the State constitutions and among the rest, to that of this State. Its propriety having been drawn into question by the adversaries of that plan, is no light symptom of the rage for objection, which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS.

1. The celebrated Montesquieu, speaking of them, says: “Of the three powers above mentioned, the judiciary is next to nothing.” “Spirit of Laws.” vol. i., page 186.

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2. Idem, page 181.
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3. Vide “Protest of the Minority of the Convention of Pennsylvania,” Martin’s Speech, etc.
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