>FEDERALIST No. 16 (Hamilton)                                  .



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 pausibility 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.





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