the parent of anarchy: It has been seen that delinquencies in the
members of the Union are its natural and necessary offspring; and that
whenever they happen, the only constitutional remedy is force, and the
immediate effect of the use of it, civil war.
It remains to inquire how far so odious an engine of government, in its
application to us, would even be capable of answering its end. If there
should not be a large army constantly at the disposal of the national
government it would either not be able to employ force at all, or, when
this could be done, it would amount to a war between parts of the
Confederacy concerning the infractions of a league, in which the
strongest combination would be most likely to prevail, whether it
consisted of those who supported or of those who resisted the general
authority. It would rarely happen that the delinquency to be redressed
would be confined to a single member, and if there were more than one
who had neglected their duty, similarity of situation would induce them
to unite for common defense. Independent of this motive of sympathy, if
a large and influential State should happen to be the aggressing
member, it would commonly have weight enough with its neighbors to win
over some of them as associates to its cause. Specious arguments of
danger to the common liberty could easily be contrived; plausible
excuses for the deficiencies of the party could, without difficulty, be
invented to alarm the apprehensions, inflame the passions, and
conciliate the good-will, even of those States which were not
chargeable with any violation or omission of duty. This would be the
more likely to take place, as the delinquencies of the larger members
might be expected sometimes to proceed from an ambitious premeditation
in their rulers, with a view to getting rid of all external control
upon their designs of personal aggrandizement; the better to effect
which it is presumable they would tamper beforehand with leading
individuals in the adjacent States. If associates could not be found at
home, recourse would be had to the aid of foreign powers, who would
seldom be disinclined to encouraging the dissensions of a Confederacy,
from the firm union of which they had so much to fear. When the sword
is once drawn, the passions of men observe no bounds of moderation. The
suggestions of wounded pride, the instigations of irritated resentment,
would be apt to carry the States against which the arms of the Union
were exerted, to any extremes necessary to avenge the affront or to
avoid the disgrace of submission. The first war of this kind would
probably terminate in a dissolution of the Union.
This may be considered as the violent death of the Confederacy. Its
more natural death is what we now seem to be on the point of
experiencing, if the federal system be not speedily renovated in a more
substantial form. It is not probable, considering the genius of this
country, that the complying States would often be inclined to support
the authority of the Union by engaging in a war against the
non-complying States. They would always be more ready to pursue the
milder course of putting themselves upon an equal footing with the
delinquent members by an imitation of their example. And the guilt of
all would thus become the security of all. Our past experience has
exhibited the operation of this spirit in its full light. There would,
in fact, be an insuperable difficulty in ascertaining when force could
with propriety be employed. In the article of pecuniary contribution,
which would be the most usual source of delinquency, it would often be
impossible to decide whether it had proceeded from disinclination or
inability. The pretense of the latter would always be at hand. And the
case must be very flagrant in which its fallacy could be detected with
sufficient certainty to justify the harsh expedient of compulsion. It
is easy to see that this problem alone, as often as it should occur,
would open a wide field for the exercise of factious views, of
partiality, and of oppression, in the majority that happened to prevail
in the national council.
It seems to require no pains to prove that the States ought not to
prefer a national Constitution which could only be kept in motion by
the instrumentality of a large army continually on foot to execute the
ordinary requisitions or decrees of the government. And yet this is the
plain alternative involved by those who wish to deny it the power of
extending its operations to individuals. Such a scheme, if practicable
at all, would instantly degenerate into a military despotism; but it
will be found in every light impracticable. The resources of the Union
would not be equal to the maintenance of an army considerable enough to
confine the larger States within the limits of their duty; nor would
the means ever be furnished of forming such an army in the first
instance. Whoever considers the populousness and strength of several of
these States singly at the present juncture, and looks forward to what
they will become, even at the distance of half a century, will at once
dismiss as idle and visionary any scheme which aims at regulating their
movements by laws to operate upon them in their collective capacities,
and to be executed by a coercion applicable to them in the same
capacities. A project of this kind is little less romantic than the
monster-taming spirit which is attributed to the fabulous heroes and
demi-gods of antiquity.
Even in those confederacies which have been composed of members smaller
than many of our counties, the principle of legislation for sovereign
States, supported by military coercion, has never been found effectual.
It has rarely been attempted to be employed, but against the weaker
members; and in most instances attempts to coerce the refractory and
disobedient have been the signals of bloody wars, in which one half of
the confederacy has displayed its banners against the other half.
The result of these observations to an intelligent mind must be clearly
this, that if it be possible at any rate to construct a federal
government capable of regulating the common concerns and preserving the
general tranquillity, it must be founded, as to the objects committed
to its care, upon the reverse of the principle contended for by the
opponents of the proposed Constitution. It must carry its agency to the
persons of the citizens. It must stand in need of no intermediate
legislations; but must itself be empowered to employ the arm of the
ordinary magistrate to execute its own resolutions. The majesty of the
national authority must be manifested through the medium of the courts
of justice. The government of the Union, like that of each State, must
be able to address itself immediately to the hopes and fears of
individuals; and to attract to its support those passions which have
the strongest influence upon the human heart. It must, in short,
possess all the means, and have aright to resort to all the methods, of
executing the powers with which it is intrusted, that are possessed and
exercised by the government of the particular States.
To this reasoning it may perhaps be objected, that if any State should
be disaffected to the authority of the Union, it could at any time
obstruct the execution of its laws, and bring the matter to the same
issue of force, with the necessity of which the opposite scheme is
reproached.
The plausibility of this objection will vanish the moment we advert to
the essential difference between a mere NON-COMPLIANCE and a DIRECT and
ACTIVE RESISTANCE. If the interposition of the State legislatures be
necessary to give effect to a measure of the Union, they have only NOT
TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect
of duty may be disguised under affected but unsubstantial provisions,
so as not to appear, and of course not to excite any alarm in the
people for the safety of the Constitution. The State leaders may even
make a merit of their surreptitious invasions of it on the ground of
some temporary convenience, exemption, or advantage.
But if the execution of the laws of the national government should not
require the intervention of the State legislatures, if they were to
pass into immediate operation upon the citizens themselves, the
particular governments could not interrupt their progress without an
open and violent exertion of an unconstitutional power. No omissions
nor evasions would answer the end. They would be obliged to act, and in
such a manner as would leave no doubt that they had encroached on the
national rights. An experiment of this nature would always be hazardous
in the face of a constitution in any degree competent to its own
defense, and of a people enlightened enough to distinguish between a
legal exercise and an illegal usurpation of authority. The success of
it would require not merely a factious majority in the legislature, but
the concurrence of the courts of justice and of the body of the people.
If the judges were not embarked in a conspiracy with the legislature,
they would pronounce the resolutions of such a majority to be contrary
to the supreme law of the land, unconstitutional, and void. If the
people were not tainted with the spirit of their State representatives,
they, as the natural guardians of the Constitution, would throw their
weight into the national scale and give it a decided preponderancy in
the contest. Attempts of this kind would not often be made with levity
or rashness, because they could seldom be made without danger to the
authors, unless in cases of a tyrannical exercise of the federal
authority.
If opposition to the national government should arise from the
disorderly conduct of refractory or seditious individuals, it could be
overcome by the same means which are daily employed against the same
evil under the State governments. The magistracy, being equally the
ministers of the law of the land, from whatever source it might
emanate, would doubtless be as ready to guard the national as the local
regulations from the inroads of private licentiousness. As to those
partial commotions and insurrections, which sometimes disquiet society,
from the intrigues of an inconsiderable faction, or from sudden or
occasional illhumors that do not infect the great body of the community
the general government could command more extensive resources for the
suppression of disturbances of that kind than would be in the power of
any single member. And as to those mortal feuds which, in certain
conjunctures, spread a conflagration through a whole nation, or through
a very large proportion of it, proceeding either from weighty causes of
discontent given by the government or from the contagion of some
violent popular paroxysm, they do not fall within any ordinary rules of
calculation. When they happen, they commonly amount to revolutions and
dismemberments of empire. No form of government can always either avoid
or control them. It is in vain to hope to guard against events too
mighty for human foresight or precaution, and it would be idle to
object to a government because it could not perform impossibilities.
PUBLIUS.
THE FEDERALIST.
No. XVII.
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the Union)
For the Independent Journal.
HAMILTON
To the People of the State of New York:
An objection, of a nature different from that which has been stated and
answered, in my last address, may perhaps be likewise urged against the
principle of legislation for the individual citizens of America. It may
be said that it would tend to render the government of the Union too
powerful, and to enable it to absorb those residuary authorities, which
it might be judged proper to leave with the States for local purposes.
Allowing the utmost latitude to the love of power which any reasonable
man can require, I confess I am at a loss to discover what temptation
the persons intrusted with the administration of the general government
could ever feel to divest the States of the authorities of that
description. The regulation of the mere domestic police of a State
appears to me to hold out slender allurements to ambition. Commerce,
finance, negotiation, and war seem to comprehend all the objects which
have charms for minds governed by that passion; and all the powers
necessary to those objects ought, in the first instance, to be lodged
in the national depository. The administration of private justice
between the citizens of the same State, the supervision of agriculture
and of other concerns of a similar nature, all those things, in short,
which are proper to be provided for by local legislation, can never be
desirable cares of a general jurisdiction. It is therefore improbable
that there should exist a disposition in the federal councils to usurp
the powers with which they are connected; because the attempt to
exercise those powers would be as troublesome as it would be nugatory;
and the possession of them, for that reason, would contribute nothing
to the dignity, to the importance, or to the splendor of the national
government.
But let it be admitted, for argument’s sake, that mere wantonness and
lust of domination would be sufficient to beget that disposition; still
it may be safely affirmed, that the sense of the constituent body of
the national representatives, or, in other words, the people of the
several States, would control the indulgence of so extravagant an
appetite. It will always be far more easy for the State governments to
encroach upon the national authorities than for the national government
to encroach upon the State authorities. The proof of this proposition
turns upon the greater degree of influence which the State governments
if they administer their affairs with uprightness and prudence, will
generally possess over the people; a circumstance which at the same
time teaches us that there is an inherent and intrinsic weakness in all
federal constitutions; and that too much pains cannot be taken in their
organization, to give them all the force which is compatible with the
principles of liberty.
The superiority of influence in favor of the particular governments
would result partly from the diffusive construction of the national
government, but chiefly from the nature of the objects to which the
attention of the State administrations would be directed.
It is a known fact in human nature, that its affections are commonly
weak in proportion to the distance or diffusiveness of the object. Upon
the same principle that a man is more attached to his family than to
his neighborhood, to his neighborhood than to the community at large,
the people of each State would be apt to feel a stronger bias towards
their local governments than towards the government of the Union;
unless the force of that principle should be destroyed by a much better
administration of the latter.
This strong propensity of the human heart would find powerful
auxiliaries in the objects of State regulation.
The variety of more minute interests, which will necessarily fall under
the superintendence of the local administrations, and which will form
so many rivulets of influence, running through every part of the
society, cannot be particularized, without involving a detail too
tedious and uninteresting to compensate for the instruction it might
afford.
There is one transcendant advantage belonging to the province of the
State governments, which alone suffices to place the matter in a clear
and satisfactory light,—I mean the ordinary administration of criminal
and civil justice. This, of all others, is the most powerful, most
universal, and most attractive source of popular obedience and
attachment. It is that which, being the immediate and visible guardian
of life and property, having its benefits and its terrors in constant
activity before the public eye, regulating all those personal interests
and familiar concerns to which the sensibility of individuals is more
immediately awake, contributes, more than any other circumstance, to
impressing upon the minds of the people, affection, esteem, and
reverence towards the government. This great cement of society, which
will diffuse itself almost wholly through the channels of the
particular governments, independent of all other causes of influence,
would insure them so decided an empire over their respective citizens
as to render them at all times a complete counterpoise, and, not
unfrequently, dangerous rivals to the power of the Union.
The operations of the national government, on the other hand, falling
less immediately under the observation of the mass of the citizens, the
benefits derived from it will chiefly be perceived and attended to by
speculative men. Relating to more general interests, they will be less
apt to come home to the feelings of the people; and, in proportion,
less likely to inspire an habitual sense of obligation, and an active
sentiment of attachment.
The reasoning on this head has been abundantly exemplified by the
experience of all federal constitutions with which we are acquainted,
and of all others which have borne the least analogy to them.
Though the ancient feudal systems were not, strictly speaking,
confederacies, yet they partook of the nature of that species of
association. There was a common head, chieftain, or sovereign, whose
authority extended over the whole nation; and a number of subordinate
vassals, or feudatories, who had large portions of land allotted to
them, and numerous trains of INFERIOR vassals or retainers, who
occupied and cultivated that land upon the tenure of fealty or
obedience, to the persons of whom they held it. Each principal vassal
was a kind of sovereign, within his particular demesnes. The
consequences of this situation were a continual opposition to authority
of the sovereign, and frequent wars between the great barons or chief
feudatories themselves. The power of the head of the nation was
commonly too weak, either to preserve the public peace, or to protect
the people against the oppressions of their immediate lords. This
period of European affairs is emphatically styled by historians, the
times of feudal anarchy.
When the sovereign happened to be a man of vigorous and warlike temper
and of superior abilities, he would acquire a personal weight and
influence, which answered, for the time, the purpose of a more regular
authority. But in general, the power of the barons triumphed over that
of the prince; and in many instances his dominion was entirely thrown
off, and the great fiefs were erected into independent principalities
or States. In those instances in which the monarch finally prevailed
over his vassals, his success was chiefly owing to the tyranny of those
vassals over their dependents. The barons, or nobles, equally the
enemies of the sovereign and the oppressors of the common people, were
dreaded and detested by both; till mutual danger and mutual interest
effected a union between them fatal to the power of the aristocracy.
Had the nobles, by a conduct of clemency and justice, preserved the
fidelity and devotion of their retainers and followers, the contests
between them and the prince must almost always have ended in their
favor, and in the abridgment or subversion of the royal authority.
This is not an assertion founded merely in speculation or conjecture.
Among other illustrations of its truth which might be cited, Scotland
will furnish a cogent example. The spirit of clanship which was, at an
early day, introduced into that kingdom, uniting the nobles and their
dependants by ties equivalent to those of kindred, rendered the
aristocracy a constant overmatch for the power of the monarch, till the
incorporation with England subdued its fierce and ungovernable spirit,
and reduced it within those rules of subordination which a more
rational and more energetic system of civil polity had previously
established in the latter kingdom.
The separate governments in a confederacy may aptly be compared with
the feudal baronies; with this advantage in their favor, that from the
reasons already explained, they will generally possess the confidence
and good-will of the people, and with so important a support, will be
able effectually to oppose all encroachments of the national
government. It will be well if they are not able to counteract its
legitimate and necessary authority. The points of similitude consist in
the rivalship of power, applicable to both, and in the CONCENTRATION of
large portions of the strength of the community into particular
DEPOSITS, in one case at the disposal of individuals, in the other case
at the disposal of political bodies.
A concise review of the events that have attended confederate
governments will further illustrate this important doctrine; an
inattention to which has been the great source of our political
mistakes, and has given our jealousy a direction to the wrong side.
This review shall form the subject of some ensuing papers.
PUBLIUS.
THE FEDERALIST.
No. XVIII.
The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the Union)
For the Independent Journal.
HAMILTON AND MADISON
To the People of the State of New York:
Among the confederacies of antiquity, the most considerable was that of
the Grecian republics, associated under the Amphictyonic council. From
the best accounts transmitted of this celebrated institution, it bore a
very instructive analogy to the present Confederation of the American
States.
The members retained the character of independent and sovereign states,
and had equal votes in the federal council. This council had a general
authority to propose and resolve whatever it judged necessary for the
common welfare of Greece; to declare and carry on war; to decide, in
the last resort, all controversies between the members; to fine the
aggressing party; to employ the whole force of the confederacy against
the disobedient; to admit new members. The Amphictyons were the
guardians of religion, and of the immense riches belonging to the
temple of Delphos, where they had the right of jurisdiction in
controversies between the inhabitants and those who came to consult the
oracle. As a further provision for the efficacy of the federal powers,
they took an oath mutually to defend and protect the united cities, to
punish the violators of this oath, and to inflict vengeance on
sacrilegious despoilers of the temple.
In theory, and upon paper, this apparatus of powers seems amply
sufficient for all general purposes. In several material instances,
they exceed the powers enumerated in the articles of confederation. The
Amphictyons had in their hands the superstition of the times, one of
the principal engines by which government was then maintained; they had
a declared authority to use coercion against refractory cities, and
were bound by oath to exert this authority on the necessary occasions.
Very different, nevertheless, was the experiment from the theory. The
powers, like those of the present Congress, were administered by
deputies appointed wholly by the cities in their political capacities;
and exercised over them in the same capacities. Hence the weakness, the
disorders, and finally the destruction of the confederacy. The more
powerful members, instead of being kept in awe and subordination,
tyrannized successively over all the rest. Athens, as we learn from
Demosthenes, was the arbiter of Greece seventy-three years. The
Lacedaemonians next governed it twenty-nine years; at a subsequent
period, after the battle of Leuctra, the Thebans had their turn of
domination.
It happened but too often, according to Plutarch, that the deputies of
the strongest cities awed and corrupted those of the weaker; and that
judgment went in favor of the most powerful party.
Even in the midst of defensive and dangerous wars with Persia and
Macedon, the members never acted in concert, and were, more or fewer of
them, eternally the dupes or the hirelings of the common enemy. The
intervals of foreign war were filled up by domestic vicissitudes
convulsions, and carnage.