>FEDERALIST No. 22 (Hamilton)                                  .



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.%n1%n

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%n2%n 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%n3%n; 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%n4%n; 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, gthe 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.

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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