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.
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 �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; 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; 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 same 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 entrust 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.
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