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Federalist Paper 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
intcrcourse between the different parts of the Confederacy. "The commerce of the
German empire [2] is in continual trammels from the multiplicity of the duties which the
several princes and states exact upon the merchandises passing through their territories,
by means of which the fine streams and navigable rivers with which Germany is so happily
watered are rendered almost useless." Though the genius of the people of this country
might never permit this description to be strictly applicable to us, yet we may reasonably
expect, from the gradual conflicts of State regulations, that the citizens of each would
at length come to be considered and treated by the others in no better light than that of
foreigners and aliens.
The power of raising armies, by the most obvious construction of the articles
of the Confederation, is merely a power of making requisitions upon the States for quotas
of men. This practice in the course of the late war, was found replete with obstructions
to a vigorous and to an economical system of defense. It gave birth to a competition
between the States which created a kind of auction for men. In order to furnish the quotas
required of them, they outbid each other till bounties grew to an enormous and
insupportable size. The hope of a still further increase afforded an inducement to those
who were disposed to serve to procrastinate their enlistment, and disinclined them from
engaging for any considerable periods. Hence, slow and scanty levies of men, in the most
critical emergencies of our affairs; short enlistments at an unparalleled expense;
continual fluctuations in the troops, ruinous to their discipline and subjecting the
public safety frequently to the perilous crisis of a disbanded army. Hence, also, those
oppressive expedients for raising men which were upon several occasions practiced, and
which nothing but the enthusiasm of liberty would have induced the people to endure.
This method of raising troops is not more unfriendly to economy and vigor than
it is to an equal distribution of the burden. The States near the seat of war, influenced
by motives of self-preservation, made efforts to furnish their quotas, which even exceeded
their abilities; while those at a distance from danger were, for the most part, as remiss
as the others were diligent, in their exertions. The immediate pressure of this inequality
was not in this case, as in that of the contributions of money, alleviated by the hope of
a final liquidation. The States which did not pay their proportions of money might at
least be charged with their deficiencies; but no account could be formed of the
deficiencies in the supplies of men. We shall not, however, see much reason to reget the
want of this hope, when we consider how little prospect there is, that the most delinquent
States will ever be able to make compensation for their pecuniary failures. The system of
quotas and requisitions, whether it be applied to men or money, is, in every view, a
system of imbecility in the Union, and of inequality and injustice among the members.
The right of equal suffrage among the States is another exceptionable part of
the Confederation. Every idea of proportion and every rule of fair representation conspire
to condemn a principle, which gives to Rhode Island an equal weight in the scale of power
with Massachusetts, or Connecticut, or New York; and to Deleware an equal voice in the
national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation
contradicts the fundamental maxim of republican government, which requires that the sense
of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a
majority of the votes of the States will be a majority of confederated America. But this
kind of logical legerdemain will never counteract the plain suggestions of justice and
common-sense. It may happen that this majority of States is a small minority of the people
of America [3]; and two thirds of the people of America could not long be persuaded, upon
the credit of artificial distinctions and syllogistic subtleties, to submit their
interests to the management and disposal of one third. The larger States would after a
while revolt from the idea of receiving the law from the smaller. To acquiesce in such a
privation of their due importance in the political scale, would be not merely to be
insensible to the love of power, but even to sacrifice the desire of equality. It is
neither rational to expect the first, nor just to require the last. The smaller States,
considering how peculiarly their safety and welfare depend on union, ought readily to
renounce a pretension which, if not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or two thirds of
the whole number, must consent to the most important resolutions; and it may be thence
inferred that nine States would always comprehend a majority of the Union. But this does
not obviate the impropriety of an equal vote between States of the most unequal dimensions
and populousness; nor is the inference accurate in point of fact; for we can enumerate
nine States which contain less than a majority of the people [4]; and it is
constitutionally possible that these nine may give the vote. Besides, there are matters of
considerable moment determinable by a bare majority; and there are others, concerning
which doubts have been entertained, which, if interpreted in favor of the sufficiency of a
vote of seven States, would extend its operation to interests of the first magnitude. In
addition to this, it is to be observed that there is a probability of an increase in the
number of States, and no provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is, in reality, a
poison. To give a minority a negative upon the majority (which is always the case where
more than a majority is requisite to a decision), is, in its tendency, to subject the
sense of the greater number to that of the lesser. Congress, from the nonattendance of a
few States, have been frequently in the situation of a Polish diet, where a single VOTE
has been sufficient to put a stop to all their movements. A sixtieth part of the Union,
which is about the proportion of Delaware and Rhode Island, has several times been able to
oppose an entire bar to its operations. This is one of those refinements which, in
practice, has an effect the reverse of what is expected from it in theory. The necessity
of unanimity in public bodies, or of something approaching towards it, has been founded
upon a supposition that it would contribute to security. But its real operation is to
embarrass the administration, to destroy the energy of the government, and to substitute
the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to
the regular deliberations and decisions of a respectable majority. In those emergencies of
a nation, in which the goodness or badness, the weakness or strength of its government, is
of the greatest importance, there is commonly a necessity for action. The public business
must, in some way or other, go forward. If a pertinacious minority can control the opinion
of a majority, respecting the best mode of conducting it, the majority, in order that
something may be done, must conform to the views of the minority; and thus the sense of
the smaller number will overrule that of the greater, and give a tone to the national
proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible
compromises of the public good. And yet, in such a system, it is even happy when such
compromises can take place: for upon some occasions things will not admit of
accommodation; and then the measures of government must be injuriously suspended, or
fatally defeated. It is often, by the impracticability of obtaining the concurrence of the
necessary number of votes, kept in a state of inaction. Its situation must always savor of
weakness, sometimes border upon anarchy.
It is not difficult to discover, that a principle of this kind gives greater
scope to foreign corruption, as well as to domestic faction, than that which permits the
sense of the majority to decide; though the contrary of this has been presumed. The
mistake has proceeded from not attending with due care to the mischiefs that may be
occasioned by obstructing the progress of government at certain critical seasons. When the
concurrence of a large number is required by the Constitution to the doing of any national
act, we are apt to rest satisfied that all is safe, because nothing improper will be
likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be
produced, by the power of hindering the doing what may be necessary, and of keeping
affairs in the same unfavorable posture in which they may happen to stand at particular
periods.
Suppose, for instance, we were engaged in a war, in conjunction with one
foreign nation, against another. Suppose the necessity of our situation demanded peace,
and the interest or ambition of our ally led him to seek the prosecution of the war, with
views that might justify us in making separate terms. In such a state of things, this ally
of ours would evidently find it much easier, by his bribes and intrigues, to tie up the
hands of government from making peace, where two thirds of all the votes were requisite to
that object, than where a simple majority would suffice. In the first case, he would have
to corrupt a smaller number; in the last, a greater number. Upon the same principle, it
would be much easier for a foreign power with which we were at war to perplex our councils
and embarrass our exertions. And, in a commercial view, we may be subjected to similar
inconveniences. A nation, with which we might have a treaty of commerce, could with much
greater facility prevent our forming a connection with her competitor in trade, though
such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary. One of the
weak sides of republics, among their numerous advantages, is that they afford too easy an
inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his
subjects to his ambition, has so great a personal interest in the government and in the
external glory of the nation, that it is not easy for a foreign power to give him an
equivalent for what he would sacrifice by treachery to the state. The world has
accordingly been witness to few examples of this species of royal prostitution, though
there have been abundant specimens of every other kind.
In republics, persons elevated from the mass of the community, by the suffrages
of their fellow-citizens, to stations of great pre-eminence and power, may find
compensations for betraying their trust, which, to any but minds animated and guided by
superior virtue, may appear to exceed the proportion of interest they have in the common
stock, and to overbalance the obligations of duty. Hence it is that history furnishes us
with so many mortifying examples of the prevalency of foreign corruption in republican
governments. How much this contributed to the ruin of the ancient commonwealths has been
already delineated. It is well known that the deputies of the United Provinces have, in
various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl
of Chesterfield (if my memory serves me right), in a letter to his court, intimates that
his success in an important negotiation must depend on his obtaining a major's commission
for one of those deputies. And in Sweden the parties were alternately bought by France and
England in so barefaced and notorious a manner that it excited universal disgust in the
nation, and was a principal cause that the most limited monarch in Europe, in a single
day, without tumult, violence, or opposition, became one of the most absolute and
uncontrolled.
A circumstance which crowns the defects of the Confederation remains yet to be
mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound
and define their true meaning and operation. The treaties of the United States, to have
any force at all, must be considered as part of the law of the land. Their true import, as
far as respects individuals, must, like all other laws, be ascertained by judicial
determinations. To produce uniformity in these determinations, they ought to be submitted,
in the last resort, to one SUPREME TRIBUNAL. And this tribunal ought to be instituted
under the same authority which forms the treaties themselves. These ingredients are both
indispensable. If there is in each State a court of final jurisdiction, there may be as
many different final determinations on the same point as there are courts. There are
endless diversities in the opinions of men. We often see not only different courts but the
judges of the came court differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of independent
judicatories, all nations have found it necessary to establish one court paramount to the
rest, possessing a general superintendence, and authorized to settle and declare in the
last resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is so compounded
that the laws of the whole are in danger of being contravened by the laws of the parts. In
this case, if the particular tribunals are invested with a right of ultimate jurisdiction,
besides the contradictions to be expected from difference of opinion, there will be much
to fear from the bias of local views and prejudices, and from the interference of local
regulations. As often as such an interference was to happen, there would be reason to
apprehend that the provisions of the particular laws might be preferred to those of the
general laws; for nothing is more natural to men in office than to look with peculiar
deference towards that authority to which they owe their official existence. The treaties
of the United States, under the present Constitution, are liable to the infractions of
thirteen different legislatures, and as many different courts of final jurisdiction,
acting under the authority of those legislatures. The faith, the reputation, the peace of
the whole Union, are thus continually at the mercy of the prejudices, the passions, and
the interests of every member of which it is composed. Is it possible that foreign nations
can either respect or confide in such a government? Is it possible that the people of
America will longer consent to trust their honor, their happiness, their safety, on so
precarious a foundation?
In this review of the Confederation, I have confined myself to the exhibition
of its most material defects; passing over those imperfections in its details by which
even a great part of the power intended to be conferred upon it has been in a great
measure rendered abortive. It must be by this time evident to all men of reflection, who
can divest themselves of the prepossessions of preconceived opinions, that it is a system
so radically vicious and unsound, as to admit not of amendment but by an entire change in
its leading features and characters.
The organization of Congress is itself utterly improper for the exercise of
those powers which are necessary to be deposited in the Union. A single assembly may be a
proper receptacle of those slender, or rather fettered, authorities, which have been
heretofore delegated to the federal head; but it would be inconsistent with all the
principles of good government, to intrust it with those additional powers which, even the
moderate and more rational adversaries of the proposed Constitution admit, ought to reside
in the United States. If that plan should not be adopted, and if the necessity of the
Union should be able to withstand the ambitious aims of those men who may indulge
magnificent schemes of personal aggrandizement from its dissolution, the probability would
be, that we should run into the project of conferring supplementary powers upon Congress,
as they are now constituted; and either the machine, from the intrinsic feebleness of its
structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by
successive augmentations of its force an energy, as necessity might prompt, we shall
finally accumulate, in a single body, all the most important prerogatives of sovereignty,
and thus entail upon our posterity one of the most execrable forms of government that
human infatuation ever contrived. Thus, we should create in reality that very tyranny
which the adversaries of the new Constitution either are, or affect to be, solicitous to
avert.
It has not a little contributed to the infirmities of the existing federal
system, that it never had a ratification by the PEOPLE. Resting on no better foundation
than the consent of the several legislatures, it has been exposed to frequent and
intricate questions concerning the validity of its powers, and has, in some instances,
given birth to the enormous doctrine of a right of legislative repeal. Owing its
ratification to the law of a State, it has been contended that the same authority might
repeal the law by which it was ratified. However gross a heresy it may be to maintain that
a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had
respectable advocates. The possibility of a question of this nature proves the necessity
of laying the foundations of our national government deeper than in the mere sanction of
delegated authority. The fabric of American empire ought to rest on the solid basis of THE
CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that
pure, original fountain of all legitimate authority.
PUBLIUS.
(Continue to Page 23)
FNA1-@1 This, as nearly as I can recollect, was the sense of his speech on
introducing the last bill.
FNA1-@2 Encyclopedia, article "Empire."
FNA1-@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.
FNA1-@4 Add New York and Connecticut to the foregoing seven, and they will be
less than a majority.
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