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| ***Now you can do your Google searches right from ProudConservative.com*** |
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.
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.
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.
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.
| FEDERALIST NO. 22 Other Defects of the Present Confederation (continued) - Alexander Hamilton |
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