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.
FEDERALIST No. 23
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.
If the circumstances of our country are such as to demand a compound
instead of a simple, a confederate instead of a sole, government, the
essential point which will remain to be adjusted will be to discriminate
the OBJECTS, as far as it can be done, which shall appertain to the
different provinces or departments of power; allowing to each the most
ample authority for fulfilling the objects committed to its charge.
Shall the Union be constituted the guardian of the common safety? Are
fleets and armies and revenues necessary to this purpose? The government
of the Union must be empowered to pass all laws, and to make all
regulations which have relation to them. The same must be the case in
respect to commerce, and to every other matter to which its jurisdiction
is permitted to extend. Is the administration of justice between
the citizens of the same State the proper department of the local
governments? These must possess all the authorities which are connected
with this object, and with every other that may be allotted to their
particular cognizance and direction. Not to confer in each case a degree
of power commensurate to the end, would be to violate the most obvious
rules of prudence and propriety, and improvidently to trust the great
interests of the nation to hands which are disabled from managing them
with vigor and success.
Who is likely to make suitable provisions for the public defense, as
that body to which the guardianship of the public safety is confided;
which, as the centre of information, will best understand the extent
and urgency of the dangers that threaten; as the representative of the
WHOLE, will feel itself most deeply interested in the preservation of
every part; which, from the responsibility implied in the duty assigned
to it, will be most sensibly impressed with the necessity of proper
exertions; and which, by the extension of its authority throughout the
States, can alone establish uniformity and concert in the plans and
measures by which the common safety is to be secured? Is there not a
manifest inconsistency in devolving upon the federal government the
care of the general defense, and leaving in the State governments the
EFFECTIVE powers by which it is to be provided for? Is not a want of
co-operation the infallible consequence of such a system? And will not
weakness, disorder, an undue distribution of the burdens and calamities
of war, an unnecessary and intolerable increase of expense, be its
natural and inevitable concomitants? Have we not had unequivocal
experience of its effects in the course of the revolution which we have
just accomplished?
Every view we may take of the subject, as candid inquirers after truth,
will serve to convince us, that it is both unwise and dangerous to deny
the federal government an unconfined authority, as to all those objects
which are intrusted to its management. It will indeed deserve the most
vigilant and careful attention of the people, to see that it be modeled
in such a manner as to admit of its being safely vested with the
requisite powers. If any plan which has been, or may be, offered to our
consideration, should not, upon a dispassionate inspection, be found
to answer this description, it ought to be rejected. A government, the
constitution of which renders it unfit to be trusted with all the powers
which a free people ought to delegate to any government, would be an
unsafe and improper depositary of the NATIONAL INTERESTS. Wherever
THESE can with propriety be confided, the coincident powers may safely
accompany them. This is the true result of all just reasoning upon the
subject. And the adversaries of the plan promulgated by the convention
ought to have confined themselves to showing, that the internal
structure of the proposed government was such as to render it unworthy
of the confidence of the people. They ought not to have wandered into
inflammatory declamations and unmeaning cavils about the extent of the
powers. The POWERS are not too extensive for the OBJECTS of federal
administration, or, in other words, for the management of our NATIONAL
INTERESTS; nor can any satisfactory argument be framed to show that
they are chargeable with such an excess. If it be true, as has been
insinuated by some of the writers on the other side, that the difficulty
arises from the nature of the thing, and that the extent of the country
will not permit us to form a government in which such ample powers can
safely be reposed, it would prove that we ought to contract our views,
and resort to the expedient of separate confederacies, which will move
within more practicable spheres. For the absurdity must continually
stare us in the face of confiding to a government the direction of the
most essential national interests, without daring to trust it to the
authorities which are indispensable to their proper and efficient
management. Let us not attempt to reconcile contradictions, but firmly
embrace a rational alternative.
I trust, however, that the impracticability of one general system cannot
be shown. I am greatly mistaken, if any thing of weight has yet been
advanced of this tendency; and I flatter myself, that the observations
which have been made in the course of these papers have served to place
the reverse of that position in as clear a light as any matter still
in the womb of time and experience can be susceptible of. This, at all
events, must be evident, that the very difficulty itself, drawn from
the extent of the country, is the strongest argument in favor of an
energetic government; for any other can certainly never preserve the
Union of so large an empire. If we embrace the tenets of those who
oppose the adoption of the proposed Constitution, as the standard of
our political creed, we cannot fail to verify the gloomy doctrines
which predict the impracticability of a national system pervading entire
limits of the present Confederacy.
PUBLIUS
FEDERALIST No. 24
The Powers Necessary to the Common Defense Further Considered
For the Independent Journal. Wednesday, December 19, 1787
HAMILTON
To the People of the State of New York:
TO THE powers proposed to be conferred upon the federal government, in
respect to the creation and direction of the national forces, I have
met with but one specific objection, which, if I understand it right, is
this, that proper provision has not been made against the existence
of standing armies in time of peace; an objection which, I shall now
endeavor to show, rests on weak and unsubstantial foundations.
It has indeed been brought forward in the most vague and general form,
supported only by bold assertions, without the appearance of argument;
without even the sanction of theoretical opinions; in contradiction to
the practice of other free nations, and to the general sense of America,
as expressed in most of the existing constitutions. The proprietary of
this remark will appear, the moment it is recollected that the objection
under consideration turns upon a supposed necessity of restraining
the LEGISLATIVE authority of the nation, in the article of military
establishments; a principle unheard of, except in one or two of our
State constitutions, and rejected in all the rest.
A stranger to our politics, who was to read our newspapers at the
present juncture, without having previously inspected the plan reported
by the convention, would be naturally led to one of two conclusions:
either that it contained a positive injunction, that standing armies
should be kept up in time of peace; or that it vested in the EXECUTIVE
the whole power of levying troops, without subjecting his discretion, in
any shape, to the control of the legislature.