The Same Subject Continued



(The Insufficiency of the Present Confederation to Preserve the Union)



From the New York Packet.



Tuesday, December 4, 1787.



HAMILTON





To the People of the State of New York:



The tendency of the principle of legislation for States, or

communities, in their political capacities, as it has been exemplified

by the experiment we have made of it, is equally attested by the events

which have befallen all other governments of the confederate kind, of

which we have any account, in exact proportion to its prevalence in

those systems. The confirmations of this fact will be worthy of a

distinct and particular examination. I shall content myself with barely

observing here, that of all the confederacies of antiquity, which

history has handed down to us, the Lycian and Achaean leagues, as far

as there remain vestiges of them, appear to have been most free from

the fetters of that mistaken principle, and were accordingly those

which have best deserved, and have most liberally received, the

applauding suffrages of political writers.



This exceptionable principle may, as truly as emphatically, be styled

the parent of anarchy: It has been seen that delinquencies in the

members of the Union are its natural and necessary offspring; and that

whenever they happen, the only constitutional remedy is force, and the

immediate effect of the use of it, civil war.



It remains to inquire how far so odious an engine of government, in its

application to us, would even be capable of answering its end. If there

should not be a large army constantly at the disposal of the national

government it would either not be able to employ force at all, or, when

this could be done, it would amount to a war between parts of the

Confederacy concerning the infractions of a league, in which the

strongest combination would be most likely to prevail, whether it

consisted of those who supported or of those who resisted the general

authority. It would rarely happen that the delinquency to be redressed

would be confined to a single member, and if there were more than one

who had neglected their duty, similarity of situation would induce them

to unite for common defense. Independent of this motive of sympathy, if

a large and influential State should happen to be the aggressing

member, it would commonly have weight enough with its neighbors to win

over some of them as associates to its cause. Specious arguments of

danger to the common liberty could easily be contrived; plausible

excuses for the deficiencies of the party could, without difficulty, be

invented to alarm the apprehensions, inflame the passions, and

conciliate the good-will, even of those States which were not

chargeable with any violation or omission of duty. This would be the

more likely to take place, as the delinquencies of the larger members

might be expected sometimes to proceed from an ambitious premeditation

in their rulers, with a view to getting rid of all external control

upon their designs of personal aggrandizement; the better to effect

which it is presumable they would tamper beforehand with leading

individuals in the adjacent States. If associates could not be found at

home, recourse would be had to the aid of foreign powers, who would

seldom be disinclined to encouraging the dissensions of a Confederacy,

from the firm union of which they had so much to fear. When the sword

is once drawn, the passions of men observe no bounds of moderation. The

suggestions of wounded pride, the instigations of irritated resentment,

would be apt to carry the States against which the arms of the Union

were exerted, to any extremes necessary to avenge the affront or to

avoid the disgrace of submission. The first war of this kind would

probably terminate in a dissolution of the Union.



This may be considered as the violent death of the Confederacy. Its

more natural death is what we now seem to be on the point of

experiencing, if the federal system be not speedily renovated in a more

substantial form. It is not probable, considering the genius of this

country, that the complying States would often be inclined to support

the authority of the Union by engaging in a war against the

non-complying States. They would always be more ready to pursue the

milder course of putting themselves upon an equal footing with the

delinquent members by an imitation of their example. And the guilt of

all would thus become the security of all. Our past experience has

exhibited the operation of this spirit in its full light. There would,

in fact, be an insuperable difficulty in ascertaining when force could

with propriety be employed. In the article of pecuniary contribution,

which would be the most usual source of delinquency, it would often be

impossible to decide whether it had proceeded from disinclination or

inability. The pretense of the latter would always be at hand. And the

case must be very flagrant in which its fallacy could be detected with

sufficient certainty to justify the harsh expedient of compulsion. It

is easy to see that this problem alone, as often as it should occur,

would open a wide field for the exercise of factious views, of

partiality, and of oppression, in the majority that happened to prevail

in the national council.



It seems to require no pains to prove that the States ought not to

prefer a national Constitution which could only be kept in motion by

the instrumentality of a large army continually on foot to execute the

ordinary requisitions or decrees of the government. And yet this is the

plain alternative involved by those who wish to deny it the power of

extending its operations to individuals. Such a scheme, if practicable

at all, would instantly degenerate into a military despotism; but it

will be found in every light impracticable. The resources of the Union

would not be equal to the maintenance of an army considerable enough to

confine the larger States within the limits of their duty; nor would

the means ever be furnished of forming such an army in the first

instance. Whoever considers the populousness and strength of several of

these States singly at the present juncture, and looks forward to what

they will become, even at the distance of half a century, will at once

dismiss as idle and visionary any scheme which aims at regulating their

movements by laws to operate upon them in their collective capacities,

and to be executed by a coercion applicable to them in the same

capacities. A project of this kind is little less romantic than the

monster-taming spirit which is attributed to the fabulous heroes and

demi-gods of antiquity.



Even in those confederacies which have been composed of members smaller

than many of our counties, the principle of legislation for sovereign

States, supported by military coercion, has never been found effectual.

It has rarely been attempted to be employed, but against the weaker

members; and in most instances attempts to coerce the refractory and

disobedient have been the signals of bloody wars, in which one half of

the confederacy has displayed its banners against the other half.



The result of these observations to an intelligent mind must be clearly

this, that if it be possible at any rate to construct a federal

government capable of regulating the common concerns and preserving the

general tranquillity, it must be founded, as to the objects committed

to its care, upon the reverse of the principle contended for by the

opponents of the proposed Constitution. It must carry its agency to the

persons of the citizens. It must stand in need of no intermediate

legislations; but must itself be empowered to employ the arm of the

ordinary magistrate to execute its own resolutions. The majesty of the

national authority must be manifested through the medium of the courts

of justice. The government of the Union, like that of each State, must

be able to address itself immediately to the hopes and fears of

individuals; and to attract to its support those passions which have

the strongest influence upon the human heart. It must, in short,

possess all the means, and have aright to resort to all the methods, of

executing the powers with which it is intrusted, that are possessed and

exercised by the government of the particular States.



To this reasoning it may perhaps be objected, that if any State should

be disaffected to the authority of the Union, it could at any time

obstruct the execution of its laws, and bring the matter to the same

issue of force, with the necessity of which the opposite scheme is

reproached.



The plausibility of this objection will vanish the moment we advert to

the essential difference between a mere NON-COMPLIANCE and a DIRECT and

ACTIVE RESISTANCE. If the interposition of the State legislatures be

necessary to give effect to a measure of the Union, they have only NOT

TO ACT, or to ACT EVASIVELY, and the measure is defeated. This neglect

of duty may be disguised under affected but unsubstantial provisions,

so as not to appear, and of course not to excite any alarm in the

people for the safety of the Constitution. The State leaders may even

make a merit of their surreptitious invasions of it on the ground of

some temporary convenience, exemption, or advantage.



But if the execution of the laws of the national government should not

require the intervention of the State legislatures, if they were to

pass into immediate operation upon the citizens themselves, the

particular governments could not interrupt their progress without an

open and violent exertion of an unconstitutional power. No omissions

nor evasions would answer the end. They would be obliged to act, and in

such a manner as would leave no doubt that they had encroached on the

national rights. An experiment of this nature would always be hazardous

in the face of a constitution in any degree competent to its own

defense, and of a people enlightened enough to distinguish between a

legal exercise and an illegal usurpation of authority. The success of

it would require not merely a factious majority in the legislature, but

the concurrence of the courts of justice and of the body of the people.

If the judges were not embarked in a conspiracy with the legislature,

they would pronounce the resolutions of such a majority to be contrary

to the supreme law of the land, unconstitutional, and void. If the

people were not tainted with the spirit of their State representatives,

they, as the natural guardians of the Constitution, would throw their

weight into the national scale and give it a decided preponderancy in

the contest. Attempts of this kind would not often be made with levity

or rashness, because they could seldom be made without danger to the

authors, unless in cases of a tyrannical exercise of the federal

authority.



If opposition to the national government should arise from the

disorderly conduct of refractory or seditious individuals, it could be

overcome by the same means which are daily employed against the same

evil under the State governments. The magistracy, being equally the

ministers of the law of the land, from whatever source it might

emanate, would doubtless be as ready to guard the national as the local

regulations from the inroads of private licentiousness. As to those

partial commotions and insurrections, which sometimes disquiet society,

from the intrigues of an inconsiderable faction, or from sudden or

occasional illhumors that do not infect the great body of the community

the general government could command more extensive resources for the

suppression of disturbances of that kind than would be in the power of

any single member. And as to those mortal feuds which, in certain

conjunctures, spread a conflagration through a whole nation, or through

a very large proportion of it, proceeding either from weighty causes of

discontent given by the government or from the contagion of some

violent popular paroxysm, they do not fall within any ordinary rules of

calculation. When they happen, they commonly amount to revolutions and

dismemberments of empire. No form of government can always either avoid

or control them. It is in vain to hope to guard against events too

mighty for human foresight or precaution, and it would be idle to

object to a government because it could not perform impossibilities.



PUBLIUS.









THE FEDERALIST.