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
FEDERALIST No. 17
The Same Subject Continued (The Insufficiency of the Present
Confederation to Preserve the Union)
For the Independent Journal. Wednesday, December 5, 1787
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 DEPOSITORIES, 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
FEDERALIST No. 18
The Same Subject Continued (The Insufficiency of the Present
Confederation to Preserve the Union) For the New York Packet. Friday,
December 7, 1787
MADISON, with HAMILTON
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.
After the conclusion of the war with Xerxes, it appears that the
Lacedaemonians required that a number of the cities should be turned
out of the confederacy for the unfaithful part they had acted. The
Athenians, finding that the Lacedaemonians would lose fewer partisans by
such a measure than themselves, and would become masters of the public
deliberations, vigorously opposed and defeated the attempt. This piece
of history proves at once the inefficiency of the union, the ambition
and jealousy of its most powerful members, and the dependent and
degraded condition of the rest. The smaller members, though entitled by
the theory of their system to revolve in equal pride and majesty around
the common center, had become, in fact, satellites of the orbs of
primary magnitude.
Had the Greeks, says the Abbe Milot, been as wise as they were
courageous, they would have been admonished by experience of the
necessity of a closer union, and would have availed themselves of
the peace which followed their success against the Persian arms, to
establish such a reformation. Instead of this obvious policy, Athens
and Sparta, inflated with the victories and the glory they had acquired,
became first rivals and then enemies; and did each other infinitely more
mischief than they had suffered from Xerxes. Their mutual jealousies,
fears, hatreds, and injuries ended in the celebrated Peloponnesian war;
which itself ended in the ruin and slavery of the Athenians who had
begun it.
As a weak government, when not at war, is ever agitated by internal
dissentions, so these never fail to bring on fresh calamities from
abroad. The Phocians having ploughed up some consecrated ground
belonging to the temple of Apollo, the Amphictyonic council, according
to the superstition of the age, imposed a fine on the sacrilegious
offenders. The Phocians, being abetted by Athens and Sparta, refused to
submit to the decree. The Thebans, with others of the cities, undertook
to maintain the authority of the Amphictyons, and to avenge the violated
god. The latter, being the weaker party, invited the assistance of
Philip of Macedon, who had secretly fostered the contest. Philip gladly
seized the opportunity of executing the designs he had long planned
against the liberties of Greece. By his intrigues and bribes he won
over to his interests the popular leaders of several cities; by their
influence and votes, gained admission into the Amphictyonic council; and
by his arts and his arms, made himself master of the confederacy.
Such were the consequences of the fallacious principle on which this
interesting establishment was founded. Had Greece, says a judicious
observer on her fate, been united by a stricter confederation, and
persevered in her union, she would never have worn the chains of
Macedon; and might have proved a barrier to the vast projects of Rome.
The Achaean league, as it is called, was another society of Grecian
republics, which supplies us with valuable instruction.
The Union here was far more intimate, and its organization much wiser,
than in the preceding instance. It will accordingly appear, that though
not exempt from a similar catastrophe, it by no means equally deserved
it.
The cities composing this league retained their municipal jurisdiction,
appointed their own officers, and enjoyed a perfect equality. The
senate, in which they were represented, had the sole and exclusive right
of peace and war; of sending and receiving ambassadors; of entering into
treaties and alliances; of appointing a chief magistrate or praetor, as
he was called, who commanded their armies, and who, with the advice and
consent of ten of the senators, not only administered the government in
the recess of the senate, but had a great share in its deliberations,
when assembled. According to the primitive constitution, there were two
praetors associated in the administration; but on trial a single one was
preferred.
It appears that the cities had all the same laws and customs, the
same weights and measures, and the same money. But how far this
effect proceeded from the authority of the federal council is left in
uncertainty. It is said only that the cities were in a manner compelled
to receive the same laws and usages. When Lacedaemon was brought into
the league by Philopoemen, it was attended with an abolition of the
institutions and laws of Lycurgus, and an adoption of those of the
Achaeans. The Amphictyonic confederacy, of which she had been a member,
left her in the full exercise of her government and her legislation.
This circumstance alone proves a very material difference in the genius
of the two systems.
It is much to be regretted that such imperfect monuments remain of
this curious political fabric. Could its interior structure and regular
operation be ascertained, it is probable that more light would be thrown
by it on the science of federal government, than by any of the like
experiments with which we are acquainted.
One important fact seems to be witnessed by all the historians who take
notice of Achaean affairs. It is, that as well after the renovation of
the league by Aratus, as before its dissolution by the arts of
Macedon, there was infinitely more of moderation and justice in the
administration of its government, and less of violence and sedition in
the people, than were to be found in any of the cities exercising SINGLY
all the prerogatives of sovereignty. The Abbe Mably, in his observations
on Greece, says that the popular government, which was so tempestuous
elsewhere, caused no disorders in the members of the Achaean republic,
BECAUSE IT WAS THERE TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE
CONFEDERACY.
We are not to conclude too hastily, however, that faction did not, in
a certain degree, agitate the particular cities; much less that a due
subordination and harmony reigned in the general system. The contrary is
sufficiently displayed in the vicissitudes and fate of the republic.
Whilst the Amphictyonic confederacy remained, that of the Achaeans,
which comprehended the less important cities only, made little figure on
the theatre of Greece. When the former became a victim to Macedon,
the latter was spared by the policy of Philip and Alexander. Under the
successors of these princes, however, a different policy prevailed.
The arts of division were practiced among the Achaeans. Each city was
seduced into a separate interest; the union was dissolved. Some of the
cities fell under the tyranny of Macedonian garrisons; others under that
of usurpers springing out of their own confusions. Shame and oppression
erelong awaken their love of liberty. A few cities reunited. Their
example was followed by others, as opportunities were found of
cutting off their tyrants. The league soon embraced almost the whole
Peloponnesus. Macedon saw its progress; but was hindered by internal
dissensions from stopping it. All Greece caught the enthusiasm and
seemed ready to unite in one confederacy, when the jealousy and envy in
Sparta and Athens, of the rising glory of the Achaeans, threw a fatal
damp on the enterprise. The dread of the Macedonian power induced the
league to court the alliance of the Kings of Egypt and Syria, who, as
successors of Alexander, were rivals of the king of Macedon. This policy
was defeated by Cleomenes, king of Sparta, who was led by his ambition
to make an unprovoked attack on his neighbors, the Achaeans, and who,
as an enemy to Macedon, had interest enough with the Egyptian and Syrian
princes to effect a breach of their engagements with the league.