to the true spirit of the Union, have, in different instances, given
just cause of umbrage and complaint to others, and it is to be feared
that examples of this nature, if not restrained by a national control,
would be multiplied and extended till they became not less serious
sources of animosity and discord than injurious impediments to the
intercourse between the different parts of the Confederacy. “The
commerce of the German empire[2] is in continual trammels from the
multiplicity of the duties which the several princes and states exact
upon the merchandises passing through their territories, by means of
which the fine streams and navigable rivers with which Germany is so
happily watered are rendered almost useless.” Though the genius of the
people of this country might never permit this description to be
strictly applicable to us, yet we may reasonably expect, from the
gradual conflicts of State regulations, that the citizens of each would
at length come to be considered and treated by the others in no better
light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of the
articles of the Confederation, is merely a power of making requisitions
upon the States for quotas of men. This practice in the course of the
late war, was found replete with obstructions to a vigorous and to an
economical system of defense. It gave birth to a competition between
the States which created a kind of auction for men. In order to furnish
the quotas required of them, they outbid each other till bounties grew
to an enormous and insupportable size. The hope of a still further
increase afforded an inducement to those who were disposed to serve to
procrastinate their enlistment, and disinclined them from engaging for
any considerable periods. Hence, slow and scanty levies of men, in the
most critical emergencies of our affairs; short enlistments at an
unparalleled expense; continual fluctuations in the troops, ruinous to
their discipline and subjecting the public safety frequently to the
perilous crisis of a disbanded army. Hence, also, those oppressive
expedients for raising men which were upon several occasions practiced,
and which nothing but the enthusiasm of liberty would have induced the
people to endure.
This method of raising troops is not more unfriendly to economy and
vigor than it is to an equal distribution of the burden. The States
near the seat of war, influenced by motives of self-preservation, made
efforts to furnish their quotas, which even exceeded their abilities;
while those at a distance from danger were, for the most part, as
remiss as the others were diligent, in their exertions. The immediate
pressure of this inequality was not in this case, as in that of the
contributions of money, alleviated by the hope of a final liquidation.
The States which did not pay their proportions of money might at least
be charged with their deficiencies; but no account could be formed of
the deficiencies in the supplies of men. We shall not, however, see
much reason to reget the want of this hope, when we consider how little
prospect there is, that the most delinquent States will ever be able to
make compensation for their pecuniary failures. The system of quotas
and requisitions, whether it be applied to men or money, is, in every
view, a system of imbecility in the Union, and of inequality and
injustice among the members.
The right of equal suffrage among the States is another exceptionable
part of the Confederation. Every idea of proportion and every rule of
fair representation conspire to condemn a principle, which gives to
Rhode Island an equal weight in the scale of power with Massachusetts,
or Connecticut, or New York; and to Deleware an equal voice in the
national deliberations with Pennsylvania, or Virginia, or North
Carolina. Its operation contradicts the fundamental maxim of republican
government, which requires that the sense of the majority should
prevail. Sophistry may reply, that sovereigns are equal, and that a
majority of the votes of the States will be a majority of confederated
America. But this kind of logical legerdemain will never counteract the
plain suggestions of justice and common-sense. It may happen that this
majority of States is a small minority of the people of America;[3] and
two thirds of the people of America could not long be persuaded, upon
the credit of artificial distinctions and syllogistic subtleties, to
submit their interests to the management and disposal of one third. The
larger States would after a while revolt from the idea of receiving the
law from the smaller. To acquiesce in such a privation of their due
importance in the political scale, would be not merely to be insensible
to the love of power, but even to sacrifice the desire of equality. It
is neither rational to expect the first, nor just to require the last.
The smaller States, considering how peculiarly their safety and welfare
depend on union, ought readily to renounce a pretension which, if not
relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or two
thirds of the whole number, must consent to the most important
resolutions; and it may be thence inferred that nine States would
always comprehend a majority of the Union. But this does not obviate
the impropriety of an equal vote between States of the most unequal
dimensions and populousness; nor is the inference accurate in point of
fact; for we can enumerate nine States which contain less than a
majority of the people;[4] and it is constitutionally possible that
these nine may give the vote. Besides, there are matters of
considerable moment determinable by a bare majority; and there are
others, concerning which doubts have been entertained, which, if
interpreted in favor of the sufficiency of a vote of seven States,
would extend its operation to interests of the first magnitude. In
addition to this, it is to be observed that there is a probability of
an increase in the number of States, and no provision for a
proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is, in
reality, a poison. To give a minority a negative upon the majority
(which is always the case where more than a majority is requisite to a
decision), is, in its tendency, to subject the sense of the greater
number to that of the lesser. Congress, from the nonattendance of a few
States, have been frequently in the situation of a Polish diet, where a
single VOTE has been sufficient to put a stop to all their movements. A
sixtieth part of the Union, which is about the proportion of Delaware
and Rhode Island, has several times been able to oppose an entire bar
to its operations. This is one of those refinements which, in practice,
has an effect the reverse of what is expected from it in theory. The
necessity of unanimity in public bodies, or of something approaching
towards it, has been founded upon a supposition that it would
contribute to security. But its real operation is to embarrass the
administration, to destroy the energy of the government, and to
substitute the pleasure, caprice, or artifices of an insignificant,
turbulent, or corrupt junto, to the regular deliberations and decisions
of a respectable majority. In those emergencies of a nation, in which
the goodness or badness, the weakness or strength of its government, is
of the greatest importance, there is commonly a necessity for action.
The public business must, in some way or other, go forward. If a
pertinacious minority can control the opinion of a majority, respecting
the best mode of conducting it, the majority, in order that something
may be done, must conform to the views of the minority; and thus the
sense of the smaller number will overrule that of the greater, and give
a tone to the national proceedings. Hence, tedious delays; continual
negotiation and intrigue; contemptible compromises of the public good.
And yet, in such a system, it is even happy when such compromises can
take place: for upon some occasions things will not admit of
accommodation; and then the measures of government must be injuriously
suspended, or fatally defeated. It is often, by the impracticability of
obtaining the concurrence of the necessary number of votes, kept in a
state of inaction. Its situation must always savor of weakness,
sometimes border upon anarchy.
It is not difficult to discover, that a principle of this kind gives
greater scope to foreign corruption, as well as to domestic faction,
than that which permits the sense of the majority to decide; though the
contrary of this has been presumed. The mistake has proceeded from not
attending with due care to the mischiefs that may be occasioned by
obstructing the progress of government at certain critical seasons.
When the concurrence of a large number is required by the Constitution
to the doing of any national act, we are apt to rest satisfied that all
is safe, because nothing improper will be likely TO BE DONE, but we
forget how much good may be prevented, and how much ill may be
produced, by the power of hindering the doing what may be necessary,
and of keeping affairs in the same unfavorable posture in which they
may happen to stand at particular periods.
Suppose, for instance, we were engaged in a war, in conjunction with
one foreign nation, against another. Suppose the necessity of our
situation demanded peace, and the interest or ambition of our ally led
him to seek the prosecution of the war, with views that might justify
us in making separate terms. In such a state of things, this ally of
ours would evidently find it much easier, by his bribes and intrigues,
to tie up the hands of government from making peace, where two thirds
of all the votes were requisite to that object, than where a simple
majority would suffice. In the first case, he would have to corrupt a
smaller number; in the last, a greater number. Upon the same principle,
it would be much easier for a foreign power with which we were at war
to perplex our councils and embarrass our exertions. And, in a
commercial view, we may be subjected to similar inconveniences. A
nation, with which we might have a treaty of commerce, could with much
greater facility prevent our forming a connection with her competitor
in trade, though such a connection should be ever so beneficial to
ourselves.
Evils of this description ought not to be regarded as imaginary. One of
the weak sides of republics, among their numerous advantages, is that
they afford too easy an inlet to foreign corruption. An hereditary
monarch, though often disposed to sacrifice his subjects to his
ambition, has so great a personal interest in the government and in the
external glory of the nation, that it is not easy for a foreign power
to give him an equivalent for what he would sacrifice by treachery to
the state. The world has accordingly been witness to few examples of
this species of royal prostitution, though there have been abundant
specimens of every other kind.
In republics, persons elevated from the mass of the community, by the
suffrages of their fellow-citizens, to stations of great pre-eminence
and power, may find compensations for betraying their trust, which, to
any but minds animated and guided by superior virtue, may appear to
exceed the proportion of interest they have in the common stock, and to
overbalance the obligations of duty. Hence it is that history furnishes
us with so many mortifying examples of the prevalency of foreign
corruption in republican governments. How much this contributed to the
ruin of the ancient commonwealths has been already delineated. It is
well known that the deputies of the United Provinces have, in various
instances, been purchased by the emissaries of the neighboring
kingdoms. The Earl of Chesterfield (if my memory serves me right), in a
letter to his court, intimates that his success in an important
negotiation must depend on his obtaining a major’s commission for one
of those deputies. And in Sweden the parties were alternately bought by
France and England in so barefaced and notorious a manner that it
excited universal disgust in the nation, and was a principal cause that
the most limited monarch in Europe, in a single day, without tumult,
violence, or opposition, became one of the most absolute and
uncontrolled.
A circumstance which crowns the defects of the Confederation remains
yet to be mentioned, the want of a judiciary power. Laws are a dead
letter without courts to expound and define their true meaning and
operation. The treaties of the United States, to have any force at all,
must be considered as part of the law of the land. Their true import,
as far as respects individuals, must, like all other laws, be
ascertained by judicial determinations. To produce uniformity in these
determinations, they ought to be submitted, in the last resort, to one
SUPREME TRIBUNAL. And this tribunal ought to be instituted under the
same authority which forms the treaties themselves. These ingredients
are both indispensable. If there is in each State a court of final
jurisdiction, there may be as many different final determinations on
the same point as there are courts. There are endless diversities in
the opinions of men. We often see not only different courts but the
judges of the came court differing from each other. To avoid the
confusion which would unavoidably result from the contradictory
decisions of a number of independent judicatories, all nations have
found it necessary to establish one court paramount to the rest,
possessing a general superintendence, and authorized to settle and
declare in the last resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is so
compounded that the laws of the whole are in danger of being
contravened by the laws of the parts. In this case, if the particular
tribunals are invested with a right of ultimate jurisdiction, besides
the contradictions to be expected from difference of opinion, there
will be much to fear from the bias of local views and prejudices, and
from the interference of local regulations. As often as such an
interference was to happen, there would be reason to apprehend that the
provisions of the particular laws might be preferred to those of the
general laws; for nothing is more natural to men in office than to look
with peculiar deference towards that authority to which they owe their
official existence. The treaties of the United States, under the
present Constitution, are liable to the infractions of thirteen
different legislatures, and as many different courts of final
jurisdiction, acting under the authority of those legislatures. The
faith, the reputation, the peace of the whole Union, are thus
continually at the mercy of the prejudices, the passions, and the
interests of every member of which it is composed. Is it possible that
foreign nations can either respect or confide in such a government? Is
it possible that the people of America will longer consent to trust
their honor, their happiness, their safety, on so precarious a
foundation?
In this review of the Confederation, I have confined myself to the
exhibition of its most material defects; passing over those
imperfections in its details by which even a great part of the power
intended to be conferred upon it has been in a great measure rendered
abortive. It must be by this time evident to all men of reflection, who
can divest themselves of the prepossessions of preconceived opinions,
that it is a system so radically vicious and unsound, as to admit not
of amendment but by an entire change in its leading features and
characters.
The organization of Congress is itself utterly improper for the
exercise of those powers which are necessary to be deposited in the
Union. A single assembly may be a proper receptacle of those slender,
or rather fettered, authorities, which have been heretofore delegated
to the federal head; but it would be inconsistent with all the
principles of good government, to intrust it with those additional
powers which, even the moderate and more rational adversaries of the
proposed Constitution admit, ought to reside in the United States. If
that plan should not be adopted, and if the necessity of the Union
should be able to withstand the ambitious aims of those men who may
indulge magnificent schemes of personal aggrandizement from its
dissolution, the probability would be, that we should run into the
project of conferring supplementary powers upon Congress, as they are
now constituted; and either the machine, from the intrinsic feebleness
of its structure, will moulder into pieces, in spite of our ill-judged
efforts to prop it; or, by successive augmentations of its force an
energy, as necessity might prompt, we shall finally accumulate, in a
single body, all the most important prerogatives of sovereignty, and
thus entail upon our posterity one of the most execrable forms of
government that human infatuation ever contrived. Thus, we should
create in reality that very tyranny which the adversaries of the new
Constitution either are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the existing
federal system, that it never had a ratification by the PEOPLE. Resting
on no better foundation than the consent of the several legislatures,
it has been exposed to frequent and intricate questions concerning the
validity of its powers, and has, in some instances, given birth to the
enormous doctrine of a right of legislative repeal. Owing its
ratification to the law of a State, it has been contended that the same
authority might repeal the law by which it was ratified. However gross
a heresy it may be to maintain that a PARTY to a COMPACT has a right to
revoke that COMPACT, the doctrine itself has had respectable advocates.
The possibility of a question of this nature proves the necessity of
laying the foundations of our national government deeper than in the
mere sanction of delegated authority. The fabric of American empire
ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.
PUBLIUS.
[1] This, as nearly as I can recollect, was the sense of his speech on
introducing the last bill.
[2] Encyclopedia, article “Empire.”
[3] New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South
Carolina, and Maryland are a majority of the whole number of the
States, but they do not contain one third of the people.
[4] Add New York and Connecticut to the foregoing seven, and they will
be less than a majority.
THE FEDERALIST.
No. XXIII.
The Necessity of a Government as Energetic as the One Proposed to the
Preservation of the Union
From the New York Packet.
Tuesday, December 18, 1787.
HAMILTON
To the People of the State of New York:
The necessity of a Constitution, at least equally energetic with the
one proposed, to the preservation of the Union, is the point at the
examination of which we are now arrived.
This inquiry will naturally divide itself into three branches the
objects to be provided for by the federal government, the quantity of
power necessary to the accomplishment of those objects, the persons
upon whom that power ought to operate. Its distribution and
organization will more properly claim our attention under the
succeeding head.
The principal purposes to be answered by union are these the common
defense of the members; the preservation of the public peace as well
against internal convulsions as external attacks; the regulation of
commerce with other nations and between the States; the superintendence
of our intercourse, political and commercial, with foreign countries.
The authorities essential to the common defense are these: to raise
armies; to build and equip fleets; to prescribe rules for the
government of both; to direct their operations; to provide for their
support. These powers ought to exist without limitation, BECAUSE IT IS
IMPOSSIBLE TO FORESEE OR DEFINE THE EXTENT AND VARIETY OF NATIONAL
EXIGENCIES, OR THE CORRESPONDENT EXTENT AND VARIETY OF THE MEANS WHICH
MAY BE NECESSARY TO SATISFY THEM. The circumstances that endanger the
safety of nations are infinite, and for this reason no constitutional
shackles can wisely be imposed on the power to which the care of it is
committed. This power ought to be coextensive with all the possible
combinations of such circumstances; and ought to be under the direction
of the same councils which are appointed to preside over the common
defense.
This is one of those truths which, to a correct and unprejudiced mind,
carries its own evidence along with it; and may be obscured, but cannot
be made plainer by argument or reasoning. It rests upon axioms as
simple as they are universal; the MEANS ought to be proportioned to the
END; the persons, from whose agency the attainment of any END is
expected, ought to possess the MEANS by which it is to be attained.
Whether there ought to be a federal government intrusted with the care
of the common defense, is a question in the first instance, open for
discussion; but the moment it is decided in the affirmative, it will
follow, that that government ought to be clothed with all the powers
requisite to complete execution of its trust. And unless it can be
shown that the circumstances which may affect the public safety are
reducible within certain determinate limits; unless the contrary of
this position can be fairly and rationally disputed, it must be
admitted, as a necessary consequence, that there can be no limitation
of that authority which is to provide for the defense and protection of
the community, in any matter essential to its efficacy that is, in any
matter essential to the FORMATION, DIRECTION, or SUPPORT of the
NATIONAL FORCES.
Defective as the present Confederation has been proved to be, this
principle appears to have been fully recognized by the framers of it;
though they have not made proper or adequate provision for its
exercise. Congress have an unlimited discretion to make requisitions of
men and money; to govern the army and navy; to direct their operations.
As their requisitions are made constitutionally binding upon the
States, who are in fact under the most solemn obligations to furnish
the supplies required of them, the intention evidently was that the
United States should command whatever resources were by them judged
requisite to the “common defense and general welfare.” It was presumed
that a sense of their true interests, and a regard to the dictates of
good faith, would be found sufficient pledges for the punctual
performance of the duty of the members to the federal head.
The experiment has, however, demonstrated that this expectation was
ill-founded and illusory; and the observations, made under the last
head, will, I imagine, have sufficed to convince the impartial and
discerning, that there is an absolute necessity for an entire change in
the first principles of the system; that if we are in earnest about
giving the Union energy and duration, we must abandon the vain project
of legislating upon the States in their collective capacities; we must
extend the laws of the federal government to the individual citizens of
America; we must discard the fallacious scheme of quotas and
requisitions, as equally impracticable and unjust. The result from all
this is that the Union ought to be invested with full power to levy
troops; to build and equip fleets; and to raise the revenues which will
be required for the formation and support of an army and navy, in the
customary and ordinary modes practiced in other governments.