administered by the federal authority. This also had its adversaries and
failed.
This unhappy people seem to be now suffering from popular convulsions,
from dissensions among the states, and from the actual invasion of
foreign arms, the crisis of their destiny. All nations have their eyes
fixed on the awful spectacle. The first wish prompted by humanity
is, that this severe trial may issue in such a revolution of their
government as will establish their union, and render it the parent of
tranquillity, freedom and happiness: The next, that the asylum under
which, we trust, the enjoyment of these blessings will speedily
be secured in this country, may receive and console them for the
catastrophe of their own.
I make no apology for having dwelt so long on the contemplation of these
federal precedents. Experience is the oracle of truth; and where its
responses are unequivocal, they ought to be conclusive and sacred. The
important truth, which it unequivocally pronounces in the present case,
is that a sovereignty over sovereigns, a government over governments, a
legislation for communities, as contradistinguished from individuals, as
it is a solecism in theory, so in practice it is subversive of the order
and ends of civil polity, by substituting VIOLENCE in place of LAW, or
the destructive COERCION of the SWORD in place of the mild and salutary
COERCION of the MAGISTRACY.
PUBLIUS
FEDERALIST No. 21
Other Defects of the Present Confederation
For the Independent Journal. Wednesday, December 12, 1787
HAMILTON
To the People of the State of New York:
HAVING in the three last numbers taken a summary review of the principal
circumstances and events which have depicted the genius and fate of
other confederate governments, I shall now proceed in the enumeration of
the most important of those defects which have hitherto disappointed our
hopes from the system established among ourselves. To form a safe and
satisfactory judgment of the proper remedy, it is absolutely necessary
that we should be well acquainted with the extent and malignity of the
disease.
The next most palpable defect of the subsisting Confederation, is
the total want of a SANCTION to its laws. The United States, as now
composed, have no powers to exact obedience, or punish disobedience
to their resolutions, either by pecuniary mulcts, by a suspension or
divestiture of privileges, or by any other constitutional mode. There
is no express delegation of authority to them to use force against
delinquent members; and if such a right should be ascribed to the
federal head, as resulting from the nature of the social compact between
the States, it must be by inference and construction, in the face of
that part of the second article, by which it is declared, "that each
State shall retain every power, jurisdiction, and right, not EXPRESSLY
delegated to the United States in Congress assembled." There is,
doubtless, a striking absurdity in supposing that a right of this kind
does not exist, but we are reduced to the dilemma either of embracing
that supposition, preposterous as it may seem, or of contravening or
explaining away a provision, which has been of late a repeated theme of
the eulogies of those who oppose the new Constitution; and the want
of which, in that plan, has been the subject of much plausible
animadversion, and severe criticism. If we are unwilling to impair the
force of this applauded provision, we shall be obliged to conclude, that
the United States afford the extraordinary spectacle of a government
destitute even of the shadow of constitutional power to enforce the
execution of its own laws. It will appear, from the specimens which have
been cited, that the American Confederacy, in this particular, stands
discriminated from every other institution of a similar kind, and
exhibits a new and unexampled phenomenon in the political world.
The want of a mutual guaranty of the State governments is another
capital imperfection in the federal plan. There is nothing of this kind
declared in the articles that compose it; and to imply a tacit guaranty
from considerations of utility, would be a still more flagrant departure
from the clause which has been mentioned, than to imply a tacit power of
coercion from the like considerations. The want of a guaranty, though
it might in its consequences endanger the Union, does not so immediately
attack its existence as the want of a constitutional sanction to its
laws.
Without a guaranty the assistance to be derived from the Union in
repelling those domestic dangers which may sometimes threaten the
existence of the State constitutions, must be renounced. Usurpation
may rear its crest in each State, and trample upon the liberties of the
people, while the national government could legally do nothing more
than behold its encroachments with indignation and regret. A successful
faction may erect a tyranny on the ruins of order and law, while no
succor could constitutionally be afforded by the Union to the friends
and supporters of the government. The tempestuous situation from which
Massachusetts has scarcely emerged, evinces that dangers of this kind
are not merely speculative. Who can determine what might have been the
issue of her late convulsions, if the malcontents had been headed by
a Caesar or by a Cromwell? Who can predict what effect a despotism,
established in Massachusetts, would have upon the liberties of New
Hampshire or Rhode Island, of Connecticut or New York?
The inordinate pride of State importance has suggested to some minds an
objection to the principle of a guaranty in the federal government,
as involving an officious interference in the domestic concerns of the
members. A scruple of this kind would deprive us of one of the
principal advantages to be expected from union, and can only flow from
a misapprehension of the nature of the provision itself. It could be
no impediment to reforms of the State constitution by a majority of
the people in a legal and peaceable mode. This right would remain
undiminished. The guaranty could only operate against changes to be
effected by violence. Towards the preventions of calamities of this
kind, too many checks cannot be provided. The peace of society and
the stability of government depend absolutely on the efficacy of
the precautions adopted on this head. Where the whole power of the
government is in the hands of the people, there is the less pretense for
the use of violent remedies in partial or occasional distempers of
the State. The natural cure for an ill-administration, in a popular
or representative constitution, is a change of men. A guaranty by the
national authority would be as much levelled against the usurpations of
rulers as against the ferments and outrages of faction and sedition in
the community.
The principle of regulating the contributions of the States to
the common treasury by QUOTAS is another fundamental error in the
Confederation. Its repugnancy to an adequate supply of the national
exigencies has been already pointed out, and has sufficiently appeared
from the trial which has been made of it. I speak of it now solely with
a view to equality among the States. Those who have been accustomed
to contemplate the circumstances which produce and constitute national
wealth, must be satisfied that there is no common standard or barometer
by which the degrees of it can be ascertained. Neither the value of
lands, nor the numbers of the people, which have been successively
proposed as the rule of State contributions, has any pretension to
being a just representative. If we compare the wealth of the United
Netherlands with that of Russia or Germany, or even of France, and if we
at the same time compare the total value of the lands and the aggregate
population of that contracted district with the total value of the lands
and the aggregate population of the immense regions of either of the
three last-mentioned countries, we shall at once discover that there is
no comparison between the proportion of either of these two objects and
that of the relative wealth of those nations. If the like parallel were
to be run between several of the American States, it would furnish
a like result. Let Virginia be contrasted with North Carolina,
Pennsylvania with Connecticut, or Maryland with New Jersey, and we shall
be convinced that the respective abilities of those States, in relation
to revenue, bear little or no analogy to their comparative stock in
lands or to their comparative population. The position may be equally
illustrated by a similar process between the counties of the same State.
No man who is acquainted with the State of New York will doubt that the
active wealth of King's County bears a much greater proportion to that
of Montgomery than it would appear to be if we should take either
the total value of the lands or the total number of the people as a
criterion!
The wealth of nations depends upon an infinite variety of causes.
Situation, soil, climate, the nature of the productions, the nature of
the government, the genius of the citizens, the degree of information
they possess, the state of commerce, of arts, of industry, these
circumstances and many more, too complex, minute, or adventitious
to admit of a particular specification, occasion differences hardly
conceivable in the relative opulence and riches of different countries.
The consequence clearly is that there can be no common measure of
national wealth, and, of course, no general or stationary rule by which
the ability of a state to pay taxes can be determined. The attempt,
therefore, to regulate the contributions of the members of a confederacy
by any such rule, cannot fail to be productive of glaring inequality and
extreme oppression.
This inequality would of itself be sufficient in America to work the
eventual destruction of the Union, if any mode of enforcing a compliance
with its requisitions could be devised. The suffering States would not
long consent to remain associated upon a principle which distributes
the public burdens with so unequal a hand, and which was calculated
to impoverish and oppress the citizens of some States, while those of
others would scarcely be conscious of the small proportion of the weight
they were required to sustain. This, however, is an evil inseparable
from the principle of quotas and requisitions.
There is no method of steering clear of this inconvenience, but by
authorizing the national government to raise its own revenues in its
own way. Imposts, excises, and, in general, all duties upon articles of
consumption, may be compared to a fluid, which will, in time, find its
level with the means of paying them. The amount to be contributed by
each citizen will in a degree be at his own option, and can be regulated
by an attention to his resources. The rich may be extravagant, the
poor can be frugal; and private oppression may always be avoided by
a judicious selection of objects proper for such impositions. If
inequalities should arise in some States from duties on particular
objects, these will, in all probability, be counterbalanced by
proportional inequalities in other States, from the duties on other
objects. In the course of time and things, an equilibrium, as far as
it is attainable in so complicated a subject, will be established
everywhere. Or, if inequalities should still exist, they would neither
be so great in their degree, so uniform in their operation, nor so
odious in their appearance, as those which would necessarily spring from
quotas, upon any scale that can possibly be devised.
It is a signal advantage of taxes on articles of consumption, that they
contain in their own nature a security against excess. They prescribe
their own limit; which cannot be exceeded without defeating the end
proposed, that is, an extension of the revenue. When applied to this
object, the saying is as just as it is witty, that, "in political
arithmetic, two and two do not always make four." If duties are too
high, they lessen the consumption; the collection is eluded; and the
product to the treasury is not so great as when they are confined within
proper and moderate bounds. This forms a complete barrier against any
material oppression of the citizens by taxes of this class, and is
itself a natural limitation of the power of imposing them.
Impositions of this kind usually fall under the denomination of indirect
taxes, and must for a long time constitute the chief part of the revenue
raised in this country. Those of the direct kind, which principally
relate to land and buildings, may admit of a rule of apportionment.
Either the value of land, or the number of the people, may serve as a
standard. The state of agriculture and the populousness of a country
have been considered as nearly connected with each other. And, as a
rule, for the purpose intended, numbers, in the view of simplicity
and certainty, are entitled to a preference. In every country it is
a herculean task to obtain a valuation of the land; in a country
imperfectly settled and progressive in improvement, the difficulties
are increased almost to impracticability. The expense of an accurate
valuation is, in all situations, a formidable objection. In a branch of
taxation where no limits to the discretion of the government are to be
found in the nature of things, the establishment of a fixed rule, not
incompatible with the end, may be attended with fewer inconveniences
than to leave that discretion altogether at large.
PUBLIUS
FEDERALIST No. 22
The Same Subject Continued (Other Defects of the Present Confederation)
From the New York Packet. Friday, December 14, 1787.
HAMILTON
To the People of the State of New York:
IN ADDITION to the defects already enumerated in the existing federal
system, there are others of not less importance, which concur in
rendering it altogether unfit for the administration of the affairs of
the Union.
The want of a power to regulate commerce is by all parties allowed to
be of the number. The utility of such a power has been anticipated under
the first head of our inquiries; and for this reason, as well as from
the universal conviction entertained upon the subject, little need be
added in this place. It is indeed evident, on the most superficial view,
that there is no object, either as it respects the interests of trade or
finance, that more strongly demands a federal superintendence. The
want of it has already operated as a bar to the formation of beneficial
treaties with foreign powers, and has given occasions of dissatisfaction
between the States. No nation acquainted with the nature of our
political association would be unwise enough to enter into stipulations
with the United States, by which they conceded privileges of any
importance to them, while they were apprised that the engagements on the
part of the Union might at any moment be violated by its members, and
while they found from experience that they might enjoy every advantage
they desired in our markets, without granting us any return but such as
their momentary convenience might suggest. It is not, therefore, to be
wondered at that Mr. Jenkinson, in ushering into the House of Commons a
bill for regulating the temporary intercourse between the two countries,
should preface its introduction by a declaration that similar provisions
in former bills had been found to answer every purpose to the commerce
of Great Britain, and that it would be prudent to persist in the plan
until it should appear whether the American government was likely or not
to acquire greater consistency.(1)
Several States have endeavored, by separate prohibitions, restrictions,
and exclusions, to influence the conduct of that kingdom in this
particular, but the want of concert, arising from the want of a general
authority and from clashing and dissimilar views in the State, has
hitherto frustrated every experiment of the kind, and will continue to
do so as long as the same obstacles to a uniformity of measures continue
to exist.
The interfering and unneighborly regulations of some States, contrary 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 regret 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 Delaware 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.