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 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.



 [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.









THE FEDERALIST.