analyzing documents the code of hammurabi · 2018-10-02 · 782 historical documents historical...

780 Historical Documents

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If a man practice (robbery) and be captured, that man shall be put to death. . . .If a man has come forward in a lawsuit for the witnessing of false things, and has not proved the thing that he said, if that lawsuit is a capital case, that man shall be put to death. If he came forward for witnessing about corn or silver, he shall bear the penalty (which applies to) that case.If a man has concealed in his house a lost slave or slave-girl belonging to the Palace or to a subject, and has not brought him (or her) out at the proclamation of the Crier, the owner of the house shall be put to death.If a fi re has broken out in a man’s house, and a man who has gone to extinguish it has cast his eye on the property of the owner of the house and has taken the property of the owner of the house, that man shall be thrown into the fi re.If a man is subject to a debt bearing interest, and Adad (the Weather-god) has saturated his fi eld or a high fl ood has carried (its crop) away, or because of lack of water he has not produced corn in that fi eld, in that year he shall not return any corn to (his) creditor. He shall . . . not pay interest for that year.If a man has donated fi eld, orchard or house to his favourite heir and has written a sealed document for him (confi rming this), aft er the father has gone to his doom, when the brothers share he (the favorite heir) shall take the gift that his father gave him, and apart from that they shall share equally in the property of the paternal estate.If an artisan has taken a child for bringing up, and has taught him his manual skill, (the child) shall not be (re)claimed. If he has not taught him his manual skill, that pupil may return to his father’s house.If a man aid a male or female slave . . . to escape from the city gates, he shall be put to death. . . .

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If a man be in debt and sell his wife, son, or daughter, or bind them over to service, for three years they shall work in the house of the purchaser or master; in the fourth year they shall be given their freedom. . . .If a builder has made a house for a man but has not made his work strong, so that the house he made falls down and causes the death of the owner of the house, that builder shall be put to death. If it causes the death

of the son of the owner of the house, they shall kill the son of the builder.If a man would put away [divorce] his wife who has not borne him children, he shall give her money to the amount of her marriage settlement and he shall make good to her the dowry which she brought from her father’s house and then he may put her away.If a son has struck his father, they shall cut off his hand.If a man has destroyed the eye of a man of the “gentleman” class, they shall destroy his eye. If he has broken a gentleman’s bone, they shall break his bone. If he has destroyed the eye of a commoner or broken a bone of a commoner, he shall pay one mina [about $300] of silver. If he has destroyed the eye of a gentleman’s slave, he shall pay half the slave’s price.If a gentleman’s slave strikes the cheek of a man of the “gentleman” class, they shall cut off (the slave’s) ear.If a gentleman strikes a gentleman in a free fi ght and infl icts an injury on him, that man shall swear “I did not strike him

deliberately,” and he shall pay the surgeon.

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The Code of HammurabiTh e Code of Hammurabi, believed to date before 1750 b.c., is a series of laws decreed by Hammurabi, the ruler of Babylon when that ancient city was at the peak of its power. Inscribed on stone columns over seven feet high, the Code consisted of 280 sections. Selected sections are excerpted below:

▲ Stone pillar with Hammurabi’s Code

Analyzing DocumentsUse the passage on this page to answer the following questions.1. With what general topics is the Code concerned?2. Why do you suppose the laws were written down

and codifi ed?

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Analyzing Documents1. crime, unfair business practices, debt, marriage, and punishment

2. The laws were written down and codifi ed to en-sure that judgments were consistent throughout the land and that all citizens were aware of the laws and the punishments associated with them.


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Historical Documents 781

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Magna Carta Signed by England’s King John in 1215, the Magna Carta (Great Charter) was the fi rst document to limit the power of England’s monarchs. Th e Magna Carta established the principle that rulers are subject to law—a major step toward constitutional government.

We . . . by this our present Charter have confi rmed, for us and our

heirs forever— 1. Th at the English Church shall be free and shall have her whole rights and her liberties inviolable. . . .9. Neither we nor our bailiff s shall seize any land or rent for any debt while the chattels [possessions] of the debtor are suffi cient for the payment of the debt. . . .12. No scutage [tax] or aid [subsidy] shall be imposed in our kingdom, unless by the common counsel of our kingdom. . . .14. And also to have the common council of the kingdom to assess and aid, . . . and for the assessing of scutag-es, we will cause to be summoned the archbishops, bishops, abbots, earls, and great barons, . . . And besides, we will cause to be summoned . . . all those who hold of us in chief, at a certain day . . . and to a certain place; and in all the letters of summons, we will express the cause of the summons; and the summons being thus made, the business shall proceed on the day appointed, according to the counsel of those who shall be present, although all who have been summoned have not come.39. No free-man shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.40. To none will we sell, to none will we deny, to none will we delay right or justice.

41. All merchants shall have safety and security in coming into England, and going out of England, and in stay-ing and in traveling through England . . . to buy and sell, . . . excepting in the time of war, and if they be of a country at war against us. . . .42. It shall be lawful to any person to go out of our kingdom . . . and to return safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom. . . .52. If any have been disseised [de-prived] or dispossessed by us, without a legal verdict of their peers, of their lands, castles, liberties, or rights, we will immediately restore these things to them. . . .

63. Wherefore our will is . . . that the men in our king-dom have and hold the aforesaid liberties, rights, and concessions . . . fully and entirely, to them and their heirs, . . . in all things and places forever.

Analyzing DocumentsUse the passage on this page to answer the following questions.1. What basic American right has its origins in Article

39 of the Magna Carta?2. Which article provides the basis for the Fift h

Amendment to the Constitution, which states that no person can “be deprived of life, liberty, or property, without due process of law”?

3. What limits does Article 12 place on the king’s power to tax?

▲ King John signs the Magna Carta.

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Analyzing Documents1. The basic American right that has its origins in Article 39 of the Magna Carta is found in the 5th Amendment: criminal proceedings, including the right to be tried in court by an impartial jury.

2. Article 52

3. A tax will not be imposed unless decided by the “common counsel” (the people).




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Mayfl ower Compact Th e Mayfl ower landed in present-day Cape Cod in November, 1620. Th e document that became know as the Mayfl ower Compact contained the fi rst written laws for the new land and established a government created by those who were to be governed. It was signed by 41 adult men.

In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sover-

eign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&.

Having undertaken for the Glory of God, and Advance-ment of the Christian Faith, and the Honour of our King and Country, a voyage to plant the fi rst colony in the northern parts of Virginia; do by these presents, sol-emnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Pres-ervation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offi ces, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.

In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fi ft y-fourth. Anno Domini, 1620.

Signing the Mayfl ower Compact aboard ship ▶

▲ Selected signatures on the Mayfl ower Compact

Analyzing DocumentsUse the passage on this page to answer the following questions.1. What goals are laid out in this document?2. Why was this document necessary?3. What might have happened if the Mayfl ower

Compact had not be written?


Analyzing Documents1. to enact fair and equal laws that would be fol-lowed by all the settlers to ensure the settlement’s survival

2. The document was necessary because it provided the settlers with an agreed-upon governmental authority that they consented to obey; the settlers would not have been able to survive if they had not banded together in an orderly manner.

3. Sample answer: Without the compact, it is pos-sible that there would be strife between settlers and discord about who or what had the authority to make laws for the colony, which may eventually have led to the settlement’s failure.





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S▲ Mary and William

English Bill of Rights When the Catholic king, James II, was forced from the English throne in 1688, Parliament off ered the crown to his Protestant daughter Mary and her husband, William of Orange. Parliament, however, insisted that William and Mary submit to a bill of rights. Th is document sums up the powers that Parliament had been seeking since the Petition of Right in 1628.

Whereas, the late King James II . . . did endeavor to subvert and exirpate [eliminate] the Protestant re-

ligion and the laws and liberties of this kingdom . . . and whereas the said late king James II having abdicated the government, and the throne being vacant. . . .

Th e said Lords [Parliament] . . . being now assembled in a full and free representative [body] of this nation . . . do in the fi rst place . . . declare

Th at the pretended [untruthfully claimed] power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;Th at the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal; . . .Th at levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;Th at it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;Th at the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;Th at the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;Th at election of members of Parliament ought to be free;Th at the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;Th at excessive bail ought not to be required, nor excessive fi nes imposed, nor cruel and unusual punishments infl icted;Th at jurors ought to be duly impaneled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders [property owners with unconditional rights];

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Th at all grants and promises of fi nes and forfeitures of particular persons before conviction are illegal and void;And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

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Analyzing DocumentsUse the passage on this page to answer the following questions.1. Which rights and freedoms listed above do you

think are most important? Explain your choices.2. Review the American Declaration of

Independence. What similarities do you see between the two documents?

3. What is the importance of this document for American government?


Analyzing Documents1. Accept any response that is backed by logical reasoning. Sample answer: I think “That excessive bail ought not to be required, nor excessive fi nes imposed, nor cruel and unusual punishments infl icted . . .” is the most important right because otherwise, judges could hand down unfair or disproportionate pun-ishments based on revenge or their own personal convictions.

2. Similarities include the sovereignty of the people and the importance of representative, freely elected government.

3. The importance of this document is that much of American government and politics today is based on these early English ideas.




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Second Treatise on Government In 1690, English philosopher John Locke (1632–1704) produced two treatises (essays) on government. In his second treatise, he discussed the responsibilities of a government and claimed that the people have the right to overthrow an unjust government. Locke’s ideas greatly infl uenced Th omas Jeff erson and other supporters of the American Revolution. In this selection, Locke explains why people form governments.

To understand political power aright . . . we must consider what

estate all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fi t, within the bounds of the law of nature, without asking leave or depending upon the will of any other man. . . .

Men being . . . by nature, all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. . . .

When any number of men have, by the consent of every individual, made a community, they have there-by made that community one body, with a power to act as one body, which is only by the will and determination of the majority. . . . . And thus every man, by consenting with others to make one body politic under one govern-ment, puts himself under an obligation to every one in that society to submit to the determination of the major-ity, and to be concluded by it. . . .

If man in the state of nature . . . be absolute lord of his own person and possessions, equal to the greatest and

subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? . . . It is obvious to answer that though in the state of nature he hath such a right, yet the enjoyment of it is very uncer-tain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, . . . the enjoyment of the property he has in this state is very unsafe, very insecure. Th is makes him willing to quit this condition which, however free, is full of fears and continual dan-gers; and it is not without reason that he seeks out and is willing to join in society with others . . . for the mutual

preservation of their lives, liberties and estates, which I call by the general name—property.

Th e great and chief end, therefore, of men unit-ing into commonwealths, and putting themselves under government, is the preservation of their property. . . .

Analyzing DocumentsUse the passage on this page to answer the following questions.1. According to Locke, what freedoms did people

have before the founding of governments?2. What are the potential dangers of a person living in

what Locke called “perfect freedom”?3. According to Locke, how are governments formed?4. What trade-off does Locke say occurs when people

live under government?

▲ John Locke


Analyzing Documents1. the freedom to be absolutely in charge of their lives and possessions without answering to anyone

2. With all people living in perfect freedom, an individual’s rights and property are at risk for destruc-tion and seizure by others.

3. Governments are formed by the consent of individuals as a community to willingly give up their perfect freedoms and place themselves under a gov-ernment to preserve their life, liberty, and property.

4. In order to preserve life, liberty, and property, gov-ernments require individuals to submit to the power of someone other than themselves; the governed must bear the responsibility of the community as a whole.





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Virginia Declaration of Rights Th e Virginia Declaration of Rights was largely the work of George Mason (1725–1792), one of Virginia’s wealthiest planters and a neighbor and friend of George Washington. Th e Declaration was adopted unanimously by the Virginia Convention of Delegates on June 12, 1776, and was later incorporated within the Virginia State Constitution. It infl uenced a number of later documents, including the Declaration of Independence and the Bill of Rights.

A declaration of rights made by the representatives of the good people of Virginia, assembled in full and

free convention; which rights do pertain to them and their posterity, as the basis and foundation of government.I Th at all men are by nature equally free and indepen-dent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing prop-erty, and pursuing and obtaining happi-ness and safety.II Th at all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.III Th at government is, or ought to be, instituted for the common benefi t, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest de-gree of happiness and safety and is most eff ectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the com-munity hath an indubitable, unalienable, and indefea-sible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.IV Th at no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the commu-nity, but in consideration of public services; which, not being descendible, neither ought the offi ces of magistrate, legislator, or judge be hereditary.V Th at the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two fi rst may be restrained from oppression by feeling and participating the burthens of

the people, they should, at fi xed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.VI Th at elections of members to serve as representatives

of the people in assembly ought to be free; and that all men, having suffi cient evidence of perma-

nent common interest with, and attachment to, the community have the right of suf-

frage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.VII Th at all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is

injurious to their rights and ought not to be exercised.

VIII Th at in all capital or criminal pros-ecutions a man hath a right to demand

the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without

whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.IX Th at excessive bail ought not to be required, nor excessive fi nes imposed; nor cruel and unusual punish-ments infl icted.X Th at general warrants, whereby any offi cer or mes-senger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose off ense is not

▲ George Mason





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particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.XI Th at in controversies respecting property and in suits between man and man, the ancient trial by jury is prefer-able to any other and ought to be held sacred.XII Th at the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.XIII Th at a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict sub-ordination to, and be governed by, the civil power.XIV Th at the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.XV Th at no free government, or the blessings of liberty, can be preserved to any people but by a fi rm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

XVI Th at religion, or the duty which we owe to our Cre-ator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exer-cise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Articles of Confederation Th e Articles of Confederation were approved on November 15, 1777, and were in eff ect from March 1, 1781, when they were fi nally ratifi ed by all 13 States, until March 4, 1789. Th ey established a weak central government, which led to confl icts among the States. Demand soon grew for a stronger central government, leading to the creation of the United States Constitution.

To all to whom these Presents shall come, we the undersigned Delegates of the States affi xed to our

Names send greeting. Whereas the Delegates of the United States of America in Congress assembled did on the fi ft eenth day of November in the Year of our Lord One Th ousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Con-necticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia in the Words following, viz. “Articles of Confed-eration and perpetual Union between the states of New Hampshire, Massachusetts Bay, Rhode Island and Provi-dence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

[ART. I.] Th e Stile of this confederacy shall be “Th e United States of America.”[ART. II.] Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.[ART. III.] The said states hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their Liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.[ART. IV.] Th e better to secure and perpetuate mutual friendship and intercourse among the people of the dif-ferent states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. What similarities do you see in language and

ideas between the Virginia Declaration of Rights and the Declaration of Independence? Between the Virginia Declaration of Rights and the Bill of Rights?

2. Choose one of the articles from the Virginia Declaration and explain the importance of the right that it describes using examples from your reading and general knowledge.


Analyzing Documents1. The Declaration of Independence and the Bill of Rights echo several phrases and sentiments con-tained in the Virginia Declarations of Rights, such as “That all men are by nature equally free and inde-pendent, and have certain inherent rights”; “That all power is vested in, and consequently derived from, the people”; “That a well regulated militia, com-posed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state”; and “That excessive bail ought not to be required, nor excessive fi nes imposed; nor cruel and unusual punishments infl icted.” They both delineate such basic rights as freedom of the press and freedom of religion.

2. Accept any answers that are supported with solid reasoning. Sample answer: I feel that the rights of the accused, which are described in Articles VIII and IX, are extremely important civil rights. The legal system at certain times in history has been such that the accused was not innocent until proven guilty and punished without just cause or due process. Defi n-ing these rights prevents judicial abuses and unfair trials. Delineated by the Bill of Rights and clarifi ed by decisions handed down by the Supreme Court, the rights of the accused remain an important part of the American judicial system and our democratic society.





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Justice excepted, shall be entitled to all privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restriction shall not extend so far as to prevent the removal of property imported into any state, to any other state of which the Owner is an inhabitant; provided also that no imposi-tion, duties or restriction shall be laid by any state, on the property of the united states, or either of them.

If any Person guilty of, or charged with treason, felony, or other high misdemeanor in any state, shall fl ee from Justice, and be found in any of the united states, he shall upon demand of the Governor or executive power, of the state from which he fl ed, be delivered up and removed to the state having jurisdiction of his off ence.

Full faith and credit shall be given in each of these states to the records, acts and judicial proceedings of the courts and magistrates of every other state.[ART. V.] For the more convenient management of the general interests of the united states, delegates shall be annually appointed in such manner as the legislature of each state shall direct, to meet in Congress on the fi rst Monday in November, in every year, with a power reserved to each state, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.

No state shall be represented in Congress by less than two, nor by more than seven Members; and no person shall be capable of being a delegate for more than three years in any term of six years; nor shall any person, being a delegate, be capable of holding any offi ce under the united states, for which he, or another for his benefi t receives any salary, fees or emolument of any kind.

Each state shall maintain its own delegates in a meeting of the states, and while they act as members of the com-mittee of the states.

In determining questions in the united states, in Con-gress assembled, each state shall have one vote.

Freedom of speech and debate in Congress shall not be impeached or questioned in any Court, or place out of Congress, and the members of congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on congress, except for treason, felony, or breach of the peace.[ART. VI.] No state without the Consent of the united states in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any confer-ence, agreement, or alliance or treaty with any King, prince or state; nor shall any person holding any offi ce of profi t or trust under the united states, or any of them, ac-cept of any present, emolument, offi ce or title of any kind whatever from any king, prince or foreign state; nor shall the united states in congress assembled, or any of them, grant any title of nobility.

No two or more states shall enter into any treaty, con-federation or alliance whatever between them, without the consent of the united states in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue.

No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the united states in congress assembled, with any king, prince or state, in pursuance of any treaties already pro-posed by congress, to the courts of France and Spain.

No vessels of war shall be kept up in time of peace by any state, except such number only, as shall be deemed necessary by the united states in congress assembled, for the defence of such state, or its trade; nor shall any body of forces be kept up by any state, in time of peace, ex-cept such number only, as in the judgment of the united states, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defence of such state; but every state shall always keep up a well regulated and disciplined militia, suffi ciently armed and accounted, and shall provide and constantly have ready for use, in public stores, a due number of fi eld pieces and tents, and a proper quantity of arms, ammunition and camp equipage.

No state shall engage in any war without the consent of the united states in congress assembled, unless such state be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such state and the danger is so imminent as not to admit of a delay, till the united states in congress assembled can be consulted: nor shall any state grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be aft er a declaration of war by the united states in congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under such regulations as shall be estab-lished by the united states in congress assembled, unless such state be infested by pirates, in which case vessels of war may be fi tted out for that occasion, and kept so long as the danger shall continue, or until the united states in congress assembled shall determine otherwise.[ART. VII.] When land-forces are raised by any state for the common defence, all offi cers of or under the rank of colonel, shall be appointed by the legislature of each state respectively by whom such forces shall be raised, or in such manner as such state shall direct, and all vacancies shall be fi lled up by the state which fi rst made the appointment.[ART. VIII.] All charges of war, and all other expences that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in proportion to the value of all land within each state, granted to or surveyed for any Person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the united states in congress assembled, shall from time to time direct





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and appoint. Th e taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several states within the time agreed upon by the united states in congress assembled.[ART. IX.] Th e united states in congress assembled, shall have the sole and exclusive right and power of determin-ing on peace and war, except in the cases mentioned in the sixth article—of sending and receiving ambassadors—en-tering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever—of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the united states shall be divided or appropriated—of granting letters of marque and reprisal in times of peace—appointing courts for the trial of piracies and felonies com-mitted on the high seas and establishing courts for receiving and determining fi nally appeals in all cases of captures, provided that no member of congress shall be appointed a judge of any of the said courts.

Th e united states in congress as-sembled shall also be the last resort on appeal in all disputes and diff erences now subsisting or that hereaft er may arise between two or more states con-cerning boundary, jurisdiction or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent [of any] state in controversy with another shall present a petition to congress stating the matter in question and praying for a hearing, notice thereof shall be given by order of congress to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question; but if they cannot agree, congress shall name three persons out of each of the united states, and from the list of such persons each party shall alternately strike out one, the petitioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine names as congress shall direct, shall in the presence of congress be drawn out by lot, and the persons whose names shall be so drawn or any fi ve of them, shall be commissioners or judges, to hear and fi nally determine the controversy, so always

as a major part of the judges who shall hear the cause shall agree in the determination: and if either party shall neglect to attend at the day appointed, without shewing reasons, which congress shall judge suffi cient, or being present shall refuse to strike, the congress shall proceed to nominate three persons out of each state, and the secretary of congress shall strike in behalf of such party absent or refusing; and the judgment and sentence of the court to be appointed, in the manner before prescribed, shall be fi nal and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear to defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judg-ment, which shall in like manner be fi nal and decisive, the judgment or sentence and other proceedings be-ing in either case transmitted to congress, and lodged among the acts of congress for the security of the parties concerned: provided that every commissioner, before he

sits in judgment, shall take an oath to be administered by one of the judges of the supreme or superior court of the state, where the cause shall be tried, “well and truly to hear and determine the matter in question, according to the best of his judgment, without favour, aff ection or hope of reward;” provided also that no state shall be deprived of territory for the benefi t of the united states.

All controversies concerning the pri-vate right of soil claimed under diff er-ent grants of two or more states, whose jurisdictions as they may respect such lands, and the states which passed such grants are adjusted, the said grants or either of them being at the same time claimed to have originated antecedent to such settlement of jurisdiction, shall on the petition of either party to the congress of the united states, be fi nally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between diff erent states.

Th e united states in congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective states—fi xing the standard of weights and measures throughout the united states—regulating the trade and managing all aff airs with the Indians, not members of any of the states, provided that the legislative right of any state within its own limits be not infringed or violated—establishing and regulating post-offi ces from one state to another, throughout all the united states, and exacting such postage on the papers passing thro’ the same as may be requisite to defray the expences of the said offi ce—appointing all offi cers of the land forces, in the service of the united states, excepting


Cover of the Articles of Confederation






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regimental offi cers—appointing all the offi cers of the naval forces, and commissioning all offi cers whatever in the service of the united states—making rules for the government and regulation of the said land and naval forces, and directing their operations.

Th e united states in congress assembled shall have authority to appoint a committee, to sit in the recess of congress, to be denominated “A Committee of the States,” and to consist of one delegate from each state; and to ap-point such other committees and civil offi cers as may be necessary for managing the general aff airs of the united states under their direction—to appoint one of their number to preside, provided that no person be allowed to serve in the offi ce of president more than one year in any term of three years; to ascertain the necessary sums of Money to be raised for the service of the united states, and to appropriate and apply the same for defraying the public expences—to borrow money, or emit bills on the credit of the united states, transmitting every half year to the respective states an account of the sums of money so borrowed or emitted—to build and equip a navy—to agree upon the number of land forces, and to make requisitions from each state for its quota, in proportion to the number of white inhabitants in such state; which requisition shall be binding, and thereupon the legislature of each state shall appoint the regimental offi cers, raise the men and clothe, arm and equip them in a soldier like manner, at the expence of the united states, and the offi cers and men so clothed, armed and equipped shall march to the place appointed, and within the time agreed on by the united states in congress assembled. But if the united states in congress assembled shall, on consideration of circum-stances judge proper that any state should not raise men, or should raise a smaller number than its quota, and that any other state should raise a greater number of men than the quota thereof, such extra number shall be raised, of-fi cered, clothed, armed and equipped in the same manner as the quota of such state, unless the legislature of such state shall judge that such extra number cannot be safely spared out of the same, in which case they shall raise, of-fi cer, clothe, arm and equip as many of such extra number as they judge can be safely spared. And the offi cers and men so clothed, armed and equipped, shall march to the place appointed, and within the time agreed on by the united states in congress assembled.

Th e united states in congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alli-ances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expences necessary for the defence and welfare of the united states, or any of them, nor emit bills, nor borrow money on the credit of the united states, nor appropriate money, nor agree upon the number of vessels of war, to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same: nor shall a question on any

other point, except for adjourning from day to day be de-termined, unless by the votes of a majority of the united states in congress assembled.

Th e congress of the united states shall have power to adjourn to any time within the year, and to any place within the united states, so that no period of adjourn-ment be for a longer duration than the space of six Months, and shall publish the Journal of their proceed-ings monthly, except such parts thereof relating to trea-ties, alliances or military operations as in their judgment require secrecy; and the yeas and nays of the delegates of each state on any question shall be entered on the Jour-nal, when it is desired by any delegate; and the delegates of a state, or any of them, at his or their request shall be furnished with a transcript of the said Journal, except such parts as are above excepted, to lay before the legisla-tures of the several states.[ART. X.] Th e committee of the states, or any nine of them, shall be authorised to execute, in the recess of con-gress, such of the powers of congress as the united states in congress assembled, by the consent of nine states, shall from time to time think expedient to vest them with; provided that no power be delegated to the said commit-tee, for the exercise of which, by the articles of confedera-tion, the voice of nine states in the congress of the united states assembled is requisite.[ART. XI.] Canada acceding to this confederation, and joining in the measures of the united states, shall be admitted into, and entitled to all the advantages of this union: but no other colony shall be admitted into the same, unless such admission be agreed to by nine states.[ART. XII.] All bills of credit emitted, monies borrowed and debts contracted by, or under the authority of congress, before the assembling of the united states, in pursuance of the present confederation, shall be deemed and considered as a charge against the united states, for payment and satisfaction whereof the said united states, and the public faith are hereby solemnly pledged.[ART. XIII.] Every state shall abide by the determinations of the united states in congress assembled, on all ques-tions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereaft er be made in any of them; unless such alteration be agreed to in a con-gress of the united states, and be aft erwards confi rmed by the legislatures of every state.

And whereas it hath pleased the Great Governor of the World to incline the hearts of the legislatures we respec-tively represent in congress, to approve of, and to au-thorize us to ratify the said articles of confederation and perpetual union. Know ye that we the undersigned del-egates, by virtue of the power and authority to us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, fully and entirely ratify and confi rm each and every of the said articles of





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confederation and perpetual union, and all and singular the matters and things therein contained: And we do fur-ther solemnly plight and engage the faith of our respec-tive constituents, that they shall abide by the determina-tions of the united states in congress assembled, on all questions, which by the said confederation are submitted to them. And that the articles thereof shall be inviolably

observed by the states we respectively represent, and that the union shall be perpetual. In Witness whereof we have hereunto set our hands in Congress. Done at Philadel-phia in the state of Pennsylvania the ninth Day of July in the Year of our Lord one Th ousand seven Hundred and Seventy-eight, and in the third year of the independence of America.

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. What factors explain why the fi rst government

of the United States was a loose confederation of individual States?

2. List three reasons why the Articles of Confederation failed to establish a lasting government.

3. What do you think was the greatest fl aw in the Articles? Why?

Josiah BartlettJohn Wentworth Junr August 8th 1778On Th e Part & Behalf OfTh e State Of New Hampshire

John HancockSamuel AdamsElbridge GerryFrancis DanaJames LovellSamuel HoltenOn Th e Part And Behalf OfTh e State Of Massachusetts Bay

William ElleryHenry MarchantJohn CollinsOn Th e Part And Behalf Of Th e State Of Rhode IslandAnd Providence Plantations

Roger ShermanSamuel HuntingtonOliver WolcottTitus HosmerAndrew AdamsOn Th e Part And Behalf Of Th e State Of Connecticut

Jas DuaneFras LewisWm Duer.Gouv MorrisOn Th e Part And Behalf OfTh e State Of New York

Jno WitherspoonNathl ScudderOn Th e Part And In Behalf OfTh e State Of New Jersey.Novr 26, 1778.—

Robt MorrisDaniel RoberdeauJona Bayard Smith.William ClinganJoseph Reed22d July 1778 On Th e Part And Behalf OfTh e State Of Pennsylvania

Tho MckeanFeby 12 1779John DickinsonMay 5th 1779Nicholas Van Dyke,On Th e Part & Behalf Of Th e State Of Delaware

John HansonMarch 1 1781Daniel Carroll DoOn Th e Part And Behalf Of Th e State Of Maryland

Richard Henry LeeJohn BanisterThomas AdamsJno HarvieFrancis Lightfoot LeeOn Th e Part And Behalf Of Th e State Of Virginia

John PennJuly 21st 1778Corns HarnettJno WilliamsOn Th e Part And Behalf Of Th e State Of No Carolina

Henry LaurensWilliam Henry DraytonJno MathewsRichd Hutson.Thos Heyward JunrOn Th e Part & Behalf Of Th e State Of South Carolina

Jno Walton24th July 1778Edwd Telfair.Edwd LangworthyOn Th e Part And Behalf Of Th e State Of Georgia


Analyzing Documents1. Contributing factors to the establishment of a loose confederation include the desire not to have a powerful central authority like the government from which the colonists had just gained their inde-pendence; the need to provide a central authority without undermining the authority and sovereignty of each State; and the necessity of meeting the de-mands of the ideological differences of each State.

2. Any three of the following is acceptable: each State no matter its size had only one vote; Congress could not levy or collect taxes; Congress was not able to regulate foreign or interstate commerce; there was no executive in place to enforce the acts of Congress; there was no national court system; amending the Articles of Confederation could occur only with the consent of all States; a 9/13 majority was required to pass laws; and the Articles were only “fi rm league of friendship.”

3. Accept any answers that are supported with solid reasoning. Sample answer: The subservient nature of Congress to the States seems to be the greatest fl aw in the Articles of Confederation. In order for the 13 colonies to work together as a nation, instead of 13 individual nations, there needed to be a central authority that was charged with the responsibility of looking out for the country as a whole without deference to the particular needs of a given State. A central government would have the authority to create and implement national laws, levy taxes to pay for government and governmental programs, and provide for the defense of the nation. Without a powerful central government, the confederation would eventually become weakened by in-fi ghting and dissent so that nothing would be accomplished and the “united states” would ultimately divide and become individual nations.





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The Federalist No. 10 One of the 29 essays believed to have been written by James Madison, the tenth of Th e Federalist papers presents Madison’s observations on dealing with the “mischiefs of faction” and the advantages of a republican (representative) form of government over that of a pure democracy. Th is essay was fi rst published on November 23, 1787.

Among the numerous advantages promised by a well-constructed Union, none deserves to be more ac-

curately developed than its tendency to break and control the violence of faction. Th e friend of popular govern-ments never fi nds himself so much alarmed for their character and fate as when he contemplates their propen-sity 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. Th e instability, injustice, and confusion introduced into the public councils have, in truth, been the mortal diseases under which popular governments have ev-erywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations.

Th e 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 eff ectually 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 confl icts of rival parties, and that measures are too oft en 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. Th ese must be chiefl y, if not wholly, eff ects of the unsteadiness and injustice with which a fac-tious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or 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.

Th ere are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its eff ects.

Th ere 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 fi rst reme-dy that it was worse than the disease. Liberty is to faction what air is to fi re, an ailment 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,

Madison warned of “factions” leading to violence.





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which is essential to animal life, because it imparts to fi re its destructive agency.

Th e second expedient is as impracticable as the fi rst would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, diff erent opin-ions 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 infl uence on each other; and the former will be objects to which the latter will attach themselves. Th e diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. Th e pro-tection of these faculties is the fi rst object of government. From the protection of diff erent and unequal faculties of acquiring property, the possession of diff erent degrees and kinds of property immediately results; and from the infl uence of these on the sentiments and views of the re-spective proprietors ensues a division of the society into diff erent interests and parties.

Th e latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into diff erent degrees of activity, according to the diff erent circumstances of civil society. A zeal for diff erent opin-ions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment of diff erent leaders ambitiously contend-ing for preeminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, infl amed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate 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 suffi cient to kindle their unfriendly passions and excite their most violent confl icts. But the most common and durable source of factions has been the various and unequal distribution of property.

Th ose who hold and those who are without property have ever formed distinct interests in society. Th ose who are creditors and those who are debtors fall under a like discrimination. A landed interest, a manufacturing inter-est, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations and divide them into diff erent classes, actuated by diff erent sentiments and views. Th e 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, be-cause his interest would certainly bias his judgment and, not improbably, corrupt his integrity. With equal, nay, with greater reason, a body of men are unfi t to be both judges and parties at the same time; yet what are many of the most important acts of legislation but so many judi-cial determinations, not indeed concerning the rights of

single persons, but concerning the rights of large bodies of citizens? And what are the diff erent classes of legisla-tors 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? [Th ese] are questions which would be diff erently de-cided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. Th e 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 leg-islative 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 states-men 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 fi nd in disregarding the rights of another or the good of the whole. Th e 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 con-trolling its eff ects.

If a faction consists of less than a majority, relief is sup-plied by the republican principle, which enables the ma-jority 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 in-cluded in a faction, the form of popular government, on the other hand, enables it to sacrifi ce 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 govern-ment, 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 pre-vented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into eff ect schemes






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of oppression. If the impulse and the opportunity be suff ered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. Th ey are not found to be such on the injustice and vio-lence of individuals and lose their effi cacy in proportion to the number combined together, that is, in proportion as their effi cacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consist-ing 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 sacrifi ce 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. Th eoretic politicians, who have patronized this species of government, have er-roneously 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 posses-sions, their opinions, and their passions.

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

Th e two great points of diff erence between a democracy and a republic are: fi rst, 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.

Th e eff ect of the fi rst diff erence is, on the one hand, to refi ne 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 sacrifi ce it to temporary or partial consid-erations. 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 eff ect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs may, by intrigue, by corruption, or by other means, fi rst obtain the suff rages, and then betray the interests of the people. Th e 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 obvi-ous considerations:

In the fi rst 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 represen-tatives 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 fi t characters be not less in the large than in the small repub-lic, the former will present a greater option, and conse-quently a greater probability of a fi t 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 diffi cult for unworthy can-didates to practice with success the vicious arts by which elections are too oft en carried; and the suff rages of the people being more free, will be more likely to center in men who possess the most attractive merit and the most diff usive and established character.

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 num-ber of electors, you render the representative 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 fi t to compre-hend and pursue great and national objects. Th e 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.

Th e other point of diff erence 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. Th e smaller the soci-ety, 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 individu-als 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 diffi cult 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 propor-tion 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 eff ects of factions, is enjoyed by a large over a small republic—is





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The Federalist No. 51 In the passage below, fi rst published on February 8, 1788, Madison discusses the need for a system of checks and balances to guard against “a gradual concentration of the same powers [of the new government] in the same department.”

To what expedient, then, shall we fi nally resort, for maintaining in practice the necessary partition of

power among the several departments as laid down in the Constitution? Th e 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 contriv-ing 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 develop-ment 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 diff erent 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 depart-ments would be less diffi cult in practice than it may in contemplation appear. Some diffi culties, however, and some additional expense would attend the execution of

enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representa-tives whose enlightened views and virtuous sentiments render them superior to local prejudices and to 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 af-forded 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 par-ties comprised within the Union increase this security? Does it, in fi ne, 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.

Th e infl uence of factious leaders may kindle a fl ame within their particular States but will be unable to spread a general confl agration through the other States. . . . 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 par-ticular 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 accord-ing 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.

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. What does Madison mean by “the mischief of

faction”?2. Why does Madison support a republican form of

government over a pure democracy?3. Do you agree with Madison’s point of view?

Explain your answer.


Analyzing Documents1. The number of factions, or groups, was causing instability, injustice, and confusion.

2. Madison supports a republican form of govern-ment over a pure democracy because in a pure democracy, “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 inter-ested and overbearing majority.” In other words, factions and individuals will tyrannize minorities.

3. Sample answer: Yes, because when there are too many groups with differing opinions, it is diffi cult to arrive at an equitable consensus. In addition, majority rule is inherently unrepresentative if one party is able to outnumber and oppress the rest.





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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; fi rst, because peculiar qualifi cations be-ing essential in the members, the primary consideration ought to be to select that mode of choice which best se-cures these qualifi cations; secondly, because the perma-nent 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 depart-ment should be as little dependent as possible on those of the others for the emoluments annexed to their offi ces. Were the executive magistrate, or the judges, not inde-pendent of the legislature in this particular, their inde-pendence 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 depart-ment the necessary constitutional means and personal motives to resist encroachments of the others. Th e 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. Th e inter-est of the man must be connected with the constitutional rights of the place. It may be a refl ec-tion on human nature that such devices should be necessary to control the abuses of govern-ment. But what is government itself but the greatest of all refl ections 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 diffi culty lies in this: You must fi rst 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.

Th is policy of supplying, by opposite and rival interests, the defect of better motives might be traced through the whole system of human aff airs, 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 offi ces in such a manner as that each may be a check on the other—that the private inter-est of every individual may be a sentinel over the public

rights. Th ese inventions of prudence cannot be less requi-site 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. Th e remedy for this inconveniency is to divide the legislature into dif-ferent branches; and to render them, by diff erent modes of election, and diff erent 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 fortifi ed. An absolute negative on the legislature appears, at fi rst view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither alto-

gether safe nor alone suffi cient. On ordinary occa-sions it might not be exerted with the requisite

fi rmness, and on extraordinary occasions it might be perfi diously abused. May not

this defect of an absolute negative be supplied by some qualifi ed connec-

tion between this weaker depart-ment 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 infi -nitely less able to bear such a test.

Th ere 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 fi rst 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. Th e diff erent governments will control each other, at the same time that each will be controlled by itself.

James Madison





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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. Diff erent interests necessarily exist in diff erent classes of citizens. If a majority be united by a common interest, the rights of the minority will be inse-cure. Th ere are but two methods of providing against this evil: Th e one by creating a will in the community inde-pendent 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 combina-tion of a majority of the whole very improbable, if not impracticable. Th e fi rst method prevails in all govern-ments possessing an hereditary or self appointed author-ity. Th is, 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. Th e second method will be exemplifi ed 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, inter-ests, 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 multi-plicity of interests, and in the other in the multiplicity of sects. Th e degree of security in both cases will depend on the number of interests and sects; and this may be pre-sumed to depend on the extent of country and number of people comprehended under the same government. Th is 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 dimin-ished; and consequently, the stability and independence of some member of the government, the only other security, must be proportionally 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 pow-erful factions or parties be gradually 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 govern-ment 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 coali-tion 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 the 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 that it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practicable 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 modifi cation and mixture of the federal principle.

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. How will the new government guard against

placing too much power in the hands of one individual or government body?

2. How will checks and balances be achieved in the new government?

3. What is the “double security” that Madison refers to in this passage?


Analyzing Documents1. through a system of checks and balances

2. The government will be divided into different branches that will be independent of one another.

3. “Double security” refers to fi rst, the power of the people being divided between two distinct govern-ments (State and federal), and second, subdividing that power among distinct and separate depart-ments.





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The Federalist No. 78 Th e Federalist papers were the brainchild of Alexander Hamilton, who conceived them and recruited James Madison and John Jay to the project. Hamilton is usually credited as the author of 51 of the 85 essays in the collection. Here, he discusses the national judiciary to be established by Article III in the proposed Constitution. He emphasizes the vital need for an independent judiciary and its role in the interpretation of laws and the determination of their constitutionality. First published April 11, 1788.

We proceed now to an examination of the judiciary department of the proposed government. In un-

folding the defects of the existing Confederation, the util-ity 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 institu-tion 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, there-fore, our observations shall be confi ned.

Th e manner of constituting it seems to embrace these several objects: 1st. Th e mode of appointing the judges. 2nd. Th e tenure by which they are to hold their places. 3rd. Th e partition of the judiciary authority between dif-ferent 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 offi cers 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 chiefl y concerns their duration in offi ce, 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 offi ces 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. Th e standard of good behavior for the continuance in offi ce 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 im-partial administration of the laws.

Whoever attentively considers the diff erent depart-ments 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. Th e executive not only dispenses the honors but holds the sword of the community. Th e legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. Th e judiciary, on the contrary, has no infl uence 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.

Th is simple view of the matter suggests several im-portant consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with suc-cess 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 gen-eral 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 judg-ing be not separated from the legislative and executive powers.” And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the eff ects 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 ju-diciary, it is in continual jeopardy of being overpowered, awed, or infl uenced by its coordinate branches; and that as nothing can contribute so much to its fi rmness and independence as permanency in offi ce, this quality may therefore be justly regarded as an indispensable ingredi-ent in its constitution, and, in a great measure, as the citadel of the public justice and the public security.





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Th e complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limit-ed Constitution, I understand one which contains certain specifi ed 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 Consti-tution, has arisen from an imagina-tion 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 Ameri-can constitutions, a brief discussion of the grounds on which it rests can-not be unacceptable.

Th ere is no position which depends on clearer principles than that every act of a delegated authority, con-trary 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 affi rm 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 de-signed 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. Th e 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 irrec-oncilable 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 supe-rior 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. Th ey ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.

Th is exercise of judicial discretion in determining between two contradic-tory laws is exemplifi ed 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 prov-ince of the courts to liquidate and fi x their meaning and operation. So far as they can,

by any fair construction, be reconciled to each other, rea-son and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of neces-sity to give eff ect to one in exclusion of the other. Th e 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 fi rst. But this is a mere rule of con-struction, 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. Th ey 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. Th ey teach us that the prior act of a superior ought to be preferred to the sub-sequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes

Alexander Hamilton






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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 pre-tense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. Th is might as well happen in the case of two contradictory stat-utes; or it might as well happen in every adjudication upon any single statute. Th e 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 substi-tution of their pleasure to that of the legislative body. Th e observation, if it prove anything, 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 aff ord a strong argument for the permanent tenure of judicial offi ces, since nothing will contribute so much as this to that inde-pendent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Th is independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the eff ects of those ill humors which the arts of designing men, or the infl uence of particular conjunctures, some-times disseminate among the people themselves, and which, though they speedily give place to better informa-tion, and more deliberate refl ection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Th ough I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of Republican government which admits the right of the people to alter or abolish the established Constitution whenever they fi nd 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 justifi able in a violation of those provisions; or that the courts would be under a greater obligation to con-nive at infractions in this shape than when they had pro-ceeded 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 essen-tial safeguard against the eff ects of occasional ill humors in the society. Th ese 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 fi rmness of the judicial magistracy is of vast importance in mitigating the severity and confi ning 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 man-ner compelled, by the very motives of the injustice they mediate, to qualify their attempts. Th is is a circumstance calculated to have more infl uence upon the character of our governments than but few may be aware of. Th e ben-efi ts 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 disinter-ested. 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 tomor-row the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel that the inevi-table tendency of such a spirit is to sap the foundations of public and private confi dence and to introduce in its stead universal distrust and distress.

Th at infl exible 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 offi ces 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 execu-tive 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 disposi-tion to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.

Th ere is yet a further and a weighty reason for the per-manency of the judicial offi ces which is deducible from the nature of the qualifi cations they require. It has been frequently remarked with great propriety that a voluminous code of laws is one of the inconveniences necessarily con-nected 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 defi ne 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 consid-erable 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 suf-





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fi cient 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. Th ese considerations apprise us that the govern-ment can have no great option between fi t characters; and that a temporary duration in offi ce which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench would have a tenden-cy to throw the administration of justice into hands less able and less well qualifi ed 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 disad-vantages on this score would be greater than they may at fi rst 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 offi ces, 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. Th e experience of Great Britain aff ords an illustrious comment on the excel-lence of the institution.

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. According to Hamilton, how long should judges

stay in offi ce?2. What does Hamilton say is the role of judges?3. What might Hamilton say about the judicial system

as it exists today?

The Emancipation ProclamationPresident Abraham Lincoln issued the Emancipation Proclamation on January 1, 1863, at the beginning of the third year of the bloody Civil War. Th e proclamation declared “that all persons held as slaves” within the rebellious states “are, and henceforward shall be free.” Although the Emancipation Proclamation applied to a limited geographical area, it fundamentally changed the nature of the war to a confl ict focused on freedom for all.

Whereas on the 22d day of September, a.d. 1862, a proclamation was issued by the President of the

United States, containing, among other things, the fol-lowing, to wit:

“Th at on the 1st day of January, a.d. 1863, all persons held as slaves within any State or designated part of a State the people whereof shall then be in rebellion against the United States shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will rec-ognize and maintain the freedom of such persons and will do no act or acts to repress such persons, or any of them, in any eff orts they may make for their actual freedom.

“That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, re-spectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen

thereto at elections wherein a majority of the quali-fied voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then in rebellion against the United States.”

Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fi t and necessary war measure for suppressing said rebellion, do, on this 1st day of January, a.d. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the fi rst day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit:


Analyzing Documents1. According to Hamilton, the term of a judge should be the length of the judge’s lifetime as long as he exhibits good behavior.

2. Judges are to be an intermediary between the people and the legislature, checking the legislature when it oversteps its bounds. They should remain independent of the other branches of government with regard to decision making, and should regard the Constitution as the nation’s fundamental law, deferring to it when making decisions.

3. Sample answer: I believe Hamilton would be generally pleased with the judicial system as it ex-ists today. Many of the fundamental principles he puts forth in The Federalist No. 78 are visible in our judiciary. Hamilton might frown on the election of judges and those who are seen as “activist.” How-ever, he would probably approve of the idea that many judges are free of political constraints and that they still hold the Constitution as the fundamental law of the land.





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SOver the course of the Civil War, nearly 180,000 African Americans wore the Union uniform. ▶

Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Plaquemines, Jeff erson, St. John, St. Charles, St. James, Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia (except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northhampton, Elizabeth City, York, Princess Anne, and Norfolk, includ-ing the cities of Norfolk and Portsmouth), and which excepted parts are for the present left precisely as if this proclamation were not issued.

And by virtue of the power and for the purpose afore-said, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Gov-ernment of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.

Analyzing DocumentsUse the passage on these pages to answer the following questions.1. Recall the eight roles and the powers of the

President. Which role and which power allow Lincoln to proclaim freedom for slaves?

2. In addition to proclaiming an end to slavery, what other action does the Proclamation declare? Why is this action signifi cant?

3. Why was the Proclamation important even though no slaves were freed immediately?


Analyzing Documents1. role: chief executive; power: ordinance power

2. In addition to ending slavery, the Proclamation declares that “military and naval authorities will rec-ognize and maintain the freedom of said persons.”

3. It changed the nature of the Civil War to a confl ict focused on freedom for all, instead of a war about slavery.




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Declaration of Sentiments Elizabeth Cady Stanton and Lucretia Mott, two activists in the movement to abolish slavery, called together the fi rst conference to address women’s rights and issues in Seneca Falls, New York, in 1848. Using the Declaration of Independence as a model, the Declaration of Sentiments demanded that the rights of women be acknowledged and respected.

When, in the course of human events, it becomes neces-sary for one portion of the family of man to assume

among the people of the earth a position diff erent from that which they have hitherto occupied, but one to which the laws of nature and of nature’s God entitle them, a decent re-spect to the opinions of mankind requires that they should declare the causes that impel them to such a course.

We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted, deriv-ing their just powers from the consent of the governed. Whenever any form of government becomes destructive of these ends, it is the right of those who suff er from it to refuse allegiance to it, and to insist upon the institution of a new government, laying its foundation on such prin-ciples, and organizing its powers in such form, as to them shall seem most likely to eff ect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suff er. while evils are suf-ferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their duty to throw off such government, and to provide new guards for their future security. Such has been the patient suff erance of the women under this government, and such is now the necessity which constrains them to demand the equal station to which they are entitled. Th e history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.

He has never permitted her to exercise her inalienable right to the elective franchise.He has compelled her to submit to laws, in the formation of which she had no voice.

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He has withheld from her rights which are given to the most ignorant and degraded men—both natives and foreigners.Having deprived her of this fi rst right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.He has made her, if married, in the eye of the law, civilly dead.He has taken from her all right in property, even to the wages she earns.He has made her, morally, an irresponsible being, as she can commit many crimes with impunity, provided they be done in the presence of her husband. In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master—the law giving him power to deprive her of her liberty, and to administer chastisement.He has so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of women—the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.Aft er depriving her of all rights as a married woman, if single, and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profi table to it.He has monopolized nearly all the profi table employments, and from those she is permitted to follow, she receives but a scanty remuneration. He closes against her all the avenues to wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known.He has denied her the facilities for obtaining a thorough education, all colleges being closed against her.He allows her in church, as well as state, but a subordinate position, claiming apostolic authority for her exclusion from the ministry, and, with some exceptions, from any public participation in the aff airs of the church.

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He has created a false public sentiment by giving to the world a diff erent code of morals for men and women, by which moral delinquencies which exclude women from society, are not only tolerated, but deemed of little account in man.He has usurped the prerogative of Jehovah himself, claiming it as his right to assign for her a sphere of action, when that belongs to her conscience and to her God.He has endeavored, in every way that he could, to destroy her confi dence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.

Now, in view of this entire disfranchisement of one-half the people of this country, their social and religious degra-dation—in view of the unjust laws above mentioned, and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of the United States.

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Analyzing DocumentsUse the passage on these pages to answer the following questions.1. Why did Mott and Stanton base their Declaration on

the Declaration of Independence? What additional goals does the Declaration of Sentiments include?

2. Th e Declaration of Sentiments attracted much controversy when it was fi rst published. Why might this have been so?

3. Why is the Declaration of Sentiments an important document in the history of securing rights for all Americans?

Lucretia Mott ▶ ◀ Elizabeth Cady Stanton


Analyzing Documents1. Sample answer: Mott and Stanton based their declaration on the Declaration of Independence to show the omission of “women” alongside “men are created equal” in the Declaration of Independence. That document also lent their declaration weighti-ness and authority. Additional goals included a desire for an equal station in government, a voice in the formation of laws, and a thorough education. They wanted immediate admission to all the rights and privileges that belonged to them as citizens.

2. Sample answer: At the time, it was a radical idea to think of women having an equal place in society and enjoying the full rights of citizenship.

3. The Declaration of Sentiments demands equality regardless of gender, and the same could be said for other groups who have experienced discrimination.




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Th e General Assembly of the United Nations adopted this declaration on December 10, 1948. Th e document sets forth the basic liberties and freedoms to which all people are entitled.

Universal Declaration of Human Rights

Article 1 All human beings are born free and equal in dignity and rights. Th ey are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.Article 2 Everyone is entitled to all the rights and free-doms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, prop-erty, birth or other status. . . .Article 3 Everyone has the right to life, liberty and secu-rity of person.Article 4 No one shall be held in slavery or servitude. . . . Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.Article 9 No one shall be subjected to arbitrary arrest, detention or exile.Article 13 Everyone has the right to freedom of move-ment. . . .Article 18 Everyone has the right to freedom of thought, conscience and religion. . . .Article 19 Everyone has the right to freedom of opinion and expression. . . .Article 20 Everyone has the right to freedom of peaceful assembly and association. . . .Article 23 Everyone has the right to work, to free choice of employment, to just and favourable condi-tions of work and to protection against unemploy-ment. . . .Article 25 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstanc-es beyond his control.

Article 26 Everyone has the right to education. Educa-tion shall be free, at least in the elementary and funda-mental stages. . . .

Analyzing DocumentsUse the passage on this page to answer the following questions.1. Which of the above rights are refl ected in the Bill of

Rights in the U.S. Constitution?2. What additional rights are included in these

excerpts? Why do you think these rights are not spelled out in the U.S. Constitution?

3. In what ways might the existence of this declaration benefi t people living under an oppressive regime?

▲ A young girl carries water in Chennai, India


Analyzing Documents1. The following rights are also refl ected in the Bill of Rights: prohibition of cruel and unusual punish-ment, freedom of religion, freedom of opinion and expression, and freedom of peaceful assembly and association.

2. Additional rights that are not included in the U.S. Constitution include free choice of employment, the right to an adequate standard of living, and the right to education. Sample answer: These rights are most likely not spelled out in the Constitution because they are inherent to our democratic system of gov-ernment.

3. Sample answer: The existence of this declaration would put pressure on oppressive regimes to provide basic liberties and freedoms.

