1787 Federalist 22 · Founding Made Plain

11787 Federalist No. 22

2The Same Subject Continued:

3Other Defects of the Present Confederation

4From the New York Packet.

5Friday, December 14, 1787.

6HAMILTON

7To the People of the State of New York:

8IN ADDITION to the defects already enumerated

9 in the existing federal system,

10 there are others of not less importance,

11 which concur in rendering it

12 altogether unfit

13 for the administration

14 of the affairs of the Union.

15The want of a power to regulate commerce

16 is by all parties allowed to be of the number.

17The utility of such a power

18 has been anticipated

19 under the first head of our inquiries;

20 and for this reason,

21 as well as from the universal conviction

22 entertained upon the subject,

23 little need be added in this place.

24It is indeed evident,

25 on the most superficial view,

26 that there is no object,

27 either as it respects the interests

28 of trade or finance,

29 that more strongly demands

30 a federal superintendence.

31The want of it has already operated as a bar

32 to the formation of beneficial treaties

33 with foreign powers,

34 and has given occasions of dissatisfaction

35 between the States.

36No nation acquainted with the nature

37 of our political association

38 would be unwise enough

39 to enter into stipulations

40 with the United States,

41 by which they conceded privileges

42 of any importance to them,

43 while they were apprised

44 that the engagements

45 on the part of the Union

46 might at any moment be violated

47 by its members,

48 and while they found from experience

49 that they might enjoy every advantage

50 they desired in our markets,

51 without granting us any return

52 but such as their momentary convenience

53 might suggest.

54It is not, therefore, to be wondered at

55 that Mr. Jenkinson,

56 in ushering into the House of Commons

57 a bill

58 for regulating the temporary intercourse

59 between the two countries,

60 should preface its introduction

61 by a declaration

62 that similar provisions in former bills

63 had been found to answer every purpose

64 to the commerce of Great Britain,

65 and that it would be prudent

66 to persist in the plan

67 until it should appear

68 whether the American government

69 was likely or not

70 to acquire greater consistency.[1]

71Several States have endeavored,

72 by separate prohibitions,

73 restrictions, and exclusions,

74 to influence the conduct of that kingdom

75 in this particular,

76 but the want of concert,

77 arising from the want

78 of a general authority

79 and from clashing and dissimilar views

80 in the State,

81 has hitherto frustrated

82 every experiment of the kind,

83 and will continue to do so

84 as long as the same obstacles

85 to a uniformity of measures

86 continue to exist.

87The interfering and unneighborly regulations

88 of some States,

89 contrary to the true spirit of the Union,

90 have, in different instances,

91 given just cause of umbrage

92 and complaint to others,

93 and it is to be feared

94 that examples of this nature,

95 if not restrained

96 by a national control,

97 would be multiplied and extended

98 till they became not less serious sources

99 of animosity and discord

100 than injurious impediments

101 to the intercourse

102 between the different parts

103 of the Confederacy.

104"The commerce of the German empire[2]

105 is in continual trammels

106 from the multiplicity of the duties

107 which the several princes and states exact

108 upon the merchandises passing

109 through their territories,

110 by means of which

111 the fine streams and navigable rivers

112 with which Germany is so happily watered

113 are rendered almost useless."

114Though the genius of the people

115 of this country

116 might never permit this description

117 to be strictly applicable to us,

118 yet we may reasonably expect,

119 from the gradual conflicts

120 of State regulations,

121 that the citizens of each

122 would at length come to be considered

123 and treated by the others

124 in no better light

125 than that of foreigners and aliens.

126The power of raising armies,

127 by the most obvious construction

128 of the articles of the Confederation,

129 is merely a power of making requisitions

130 upon the States for quotas of men.

131This practice in the course of the late war,

132 was found replete with obstructions

133 to a vigorous

134 and to an economical system of defense.

135It gave birth to a competition

136 between the States

137 which created a kind of auction for men.

138In order to furnish the quotas required of them,

139 they outbid each other

140 till bounties grew to an enormous

141 and insupportable size.

142The hope of a still further increase

143 afforded an inducement to those

144 who were disposed to serve

145 to procrastinate their enlistment,

146 and disinclined them from engaging

147 for any considerable periods.

148Hence, slow and scanty levies of men,

149 in the most critical emergencies

150 of our affairs;

151 short enlistments at an unparalleled expense;

152 continual fluctuations in the troops,

153 ruinous to their discipline

154 and subjecting the public safety frequently

155 to the perilous crisis

156 of a disbanded army.

157Hence, also,

158 those oppressive expedients for raising men

159 which were upon several occasions practiced,

160 and which nothing but the enthusiasm of liberty

161 would have induced the people to endure.

162This method of raising troops

163 is not more unfriendly to economy and vigor

164 than it is to an equal distribution

165 of the burden.

166The States near the seat of war,

167 influenced by motives of self-preservation,

168 made efforts to furnish their quotas,

169 which even exceeded their abilities;

170 while those at a distance from danger were,

171 for the most part,

172 as remiss as the others were diligent,

173 in their exertions.

174The immediate pressure of this inequality

175 was not in this case,

176 as in that of the contributions of money,

177 alleviated by the hope

178 of a final liquidation.

179The States which did not pay

180 their proportions of money

181 might at least be charged

182 with their deficiencies;

183 but no account could be formed

184 of the deficiencies

185 in the supplies of men.

186We shall not, however,

187 see much reason to reget the want

188 of this hope,

189 when we consider how little prospect there is,

190 that the most delinquent States

191 will ever be able

192 to make compensation

193 for their pecuniary failures.

194The system of quotas and requisitions,

195 whether it be applied to men or money,

196 is, in every view,

197 a system of imbecility in the Union,

198 and of inequality and injustice

199 among the members.

200The right of equal suffrage among the States

201 is another exceptionable part

202 of the Confederation.

203Every idea of proportion

204 and every rule of fair representation

205 conspire to condemn a principle,

206 which gives to Rhode Island

207 an equal weight

208 in the scale of power

209 with Massachusetts,

210 or Connecticut, or New York;

211 and to Deleware an equal voice

212 in the national deliberations

213 with Pennsylvania,

214 or Virginia, or North Carolina.

215Its operation contradicts the fundamental maxim

216 of republican government,

217 which requires that the sense of the majority

218 should prevail.

219Sophistry may reply,

220 that sovereigns are equal,

221 and that a majority of the votes of the States

222 will be a majority of confederated America.

223But this kind of logical legerdemain

224 will never counteract the plain suggestions

225 of justice and common-sense.

226It may happen that this majority of States

227 is a small minority of the people of America;[3]

228 and two thirds of the people of America

229 could not long be persuaded,

230 upon the credit

231 of artificial distinctions

232 and syllogistic subtleties,

233 to submit their interests

234 to the management and disposal

235 of one third.

236The larger States would after a while revolt

237 from the idea of receiving the law

238 from the smaller.

239To acquiesce in such a privation

240 of their due importance

241 in the political scale,

242 would be not merely to be insensible

243 to the love of power,

244 but even to sacrifice the desire of equality.

245It is neither rational to expect the first,

246 nor just to require the last.

247The smaller States,

248 considering how peculiarly

249 their safety and welfare

250 depend on union,

251 ought readily to renounce a pretension

252 which, if not relinquished,

253 would prove fatal to its duration.

254It may be objected to this,

255 that not seven but nine States,

256 or two thirds of the whole number,

257 must consent

258 to the most important resolutions;

259 and it may be thence inferred

260 that nine States would always comprehend

261 a majority of the Union.

262But this does not obviate the impropriety

263 of an equal vote between States

264 of the most unequal dimensions

265 and populousness;

266 nor is the inference accurate

267 in point of fact;

268 for we can enumerate nine States

269 which contain less than a majority

270 of the people;[4]

271 and it is constitutionally possible

272 that these nine may give the vote.

273Besides, there are matters

274 of considerable moment

275 determinable by a bare majority;

276 and there are others,

277 concerning which doubts

278 have been entertained,

279 which, if interpreted in favor

280 of the sufficiency

281 of a vote of seven States,

282 would extend its operation

283 to interests of the first magnitude.

284In addition to this,

285 it is to be observed

286 that there is a probability of an increase

287 in the number of States,

288 and no provision

289 for a proportional augmentation

290 of the ratio of votes.

291But this is not all:

292 what at first sight may seem a remedy,

293 is, in reality, a poison.

294To give a minority a negative upon the majority

295 (which is always the case

296 where more than a majority is requisite

297 to a decision),

298 is, in its tendency,

299 to subject the sense of the greater number

300 to that of the lesser.

301Congress, from the nonattendance of a few States,

302 have been frequently in the situation

303 of a Polish diet,

304 where a single VOTE has been sufficient

305 to put a stop to all their movements.

306A sixtieth part of the Union,

307 which is about the proportion

308 of Delaware and Rhode Island,

309 has several times been able

310 to oppose an entire bar

311 to its operations.

312This is one of those refinements which,

313 in practice,

314 has an effect the reverse

315 of what is expected from it

316 in theory.

317The necessity of unanimity in public bodies,

318 or of something approaching towards it,

319 has been founded upon a supposition

320 that it would contribute to security.

321But its real operation

322 is to embarrass the administration,

323 to destroy the energy of the government,

324 and to substitute the pleasure,

325 caprice, or artifices

326 of an insignificant, turbulent,

327 or corrupt junto,

328 to the regular deliberations

329 and decisions

330 of a respectable majority.

331In those emergencies of a nation,

332 in which the goodness or badness,

333 the weakness or strength

334 of its government,

335 is of the greatest importance,

336 there is commonly a necessity for action.

337The public business must,

338 in some way or other, go forward.

339If a pertinacious minority can control

340 the opinion of a majority,

341 respecting the best mode of conducting it,

342 the majority,

343 in order that something may be done,

344 must conform to the views of the minority;

345 and thus the sense of the smaller number

346 will overrule that of the greater,

347 and give a tone

348 to the national proceedings.

349Hence, tedious delays;

350 continual negotiation and intrigue;

351 contemptible compromises of the public good.

352And yet, in such a system,

353 it is even happy

354 when such compromises can take place:

355 for upon some occasions

356 things will not admit of accommodation;

357 and then the measures of government

358 must be injuriously suspended,

359 or fatally defeated.

360It is often, by the impracticability of obtaining

361 the concurrence

362 of the necessary number of votes,

363 kept in a state of inaction.

364Its situation must always savor of weakness,

365 sometimes border upon anarchy.

366It is not difficult to discover,

367 that a principle of this kind

368 gives greater scope

369 to foreign corruption,

370 as well as to domestic faction,

371 than that which permits

372 the sense of the majority

373 to decide;

374 though the contrary of this has been presumed.

375The mistake has proceeded

376 from not attending with due care

377 to the mischiefs that may be occasioned

378 by obstructing the progress of government

379 at certain critical seasons.

380When the concurrence of a large number

381 is required by the Constitution

382 to the doing of any national act,

383 we are apt to rest satisfied that all is safe,

384 because nothing improper

385 will be likely TO BE DONE,

386 but we forget how much good may be prevented,

387 and how much ill may be produced,

388 by the power of hindering the doing

389 what may be necessary,

390 and of keeping affairs

391 in the same unfavorable posture

392 in which they may happen to stand

393 at particular periods.

394Suppose, for instance,

395 we were engaged in a war,

396 in conjunction with one foreign nation,

397 against another.

398Suppose the necessity of our situation

399 demanded peace,

400 and the interest or ambition of our ally

401 led him to seek the prosecution of the war,

402 with views that might justify us

403 in making separate terms.

404In such a state of things,

405 this ally of ours would evidently find it

406 much easier,

407 by his bribes and intrigues,

408 to tie up the hands of government

409 from making peace,

410 where two thirds of all the votes

411 were requisite to that object,

412 than where a simple majority would suffice.

413In the first case,

414 he would have to corrupt a smaller number;

415 in the last, a greater number.

416Upon the same principle,

417 it would be much easier for a foreign power

418 with which we were at war

419 to perplex our councils

420 and embarrass our exertions.

421And, in a commercial view,

422 we may be subjected

423 to similar inconveniences.

424A nation,

425 with which we might have a treaty of commerce,

426 could with much greater facility

427 prevent our forming a connection

428 with her competitor in trade,

429 though such a connection should be

430 ever so beneficial

431 to ourselves.

432Evils of this description

433 ought not to be regarded as imaginary.

434One of the weak sides of republics,

435 among their numerous advantages,

436 is that they afford too easy an inlet

437 to foreign corruption.

438An hereditary monarch,

439 though often disposed to sacrifice his subjects

440 to his ambition,

441 has so great a personal interest

442 in the government

443 and in the external glory of the nation,

444 that it is not easy for a foreign power

445 to give him an equivalent

446 for what he would sacrifice

447 by treachery to the state.

448The world has accordingly been witness

449 to few examples

450 of this species of royal prostitution,

451 though there have been abundant specimens

452 of every other kind.

453In republics, persons elevated from the mass

454 of the community,

455 by the suffrages of their fellow-citizens,

456 to stations of great pre-eminence and power,

457 may find compensations for betraying their trust,

458 which, to any but minds

459 animated and guided by superior virtue,

460 may appear to exceed

461 the proportion of interest

462 they have in the common stock,

463 and to overbalance

464 the obligations of duty.

465Hence it is that history furnishes us

466 with so many mortifying examples

467 of the prevalency of foreign corruption

468 in republican governments.

469How much this contributed to the ruin

470 of the ancient commonwealths

471 has been already delineated.

472It is well known

473 that the deputies of the United Provinces

474 have, in various instances, been purchased

475 by the emissaries

476 of the neighboring kingdoms.

477The Earl of Chesterfield

478 (if my memory serves me right),

479 in a letter to his court,

480 intimates that his success

481 in an important negotiation

482 must depend on his obtaining

483 a major's commission

484 for one of those deputies.

485And in Sweden the parties were alternately bought

486 by France and England

487 in so barefaced and notorious a manner

488 that it excited universal disgust

489 in the nation,

490 and was a principal cause

491 that the most limited monarch in Europe,

492 in a single day,

493 without tumult, violence, or opposition,

494 became one of the most absolute

495 and uncontrolled.

496A circumstance which crowns the defects

497 of the Confederation

498 remains yet to be mentioned,

499 the want of a judiciary power.

500Laws are a dead letter without courts

501 to expound and define

502 their true meaning and operation.

503The treaties of the United States,

504 to have any force at all,

505 must be considered as part of the law of the land.

506Their true import,

507 as far as respects individuals,

508 must, like all other laws,

509 be ascertained by judicial determinations.

510To produce uniformity in these determinations,

511 they ought to be submitted, in the last resort,

512 to one SUPREME TRIBUNAL.

513And this tribunal ought to be instituted

514 under the same authority which forms

515 the treaties themselves.

516These ingredients are both indispensable.

517If there is in each State

518 a court of final jurisdiction,

519 there may be as many different

520 final determinations

521 on the same point as there are courts.

522There are endless diversities

523 in the opinions of men.

524We often see not only different courts

525 but the judges of the came court

526 differing from each other.

527To avoid the confusion

528 which would unavoidably result

529 from the contradictory decisions

530 of a number of independent judicatories,

531 all nations have found it necessary

532 to establish one court paramount to the rest,

533 possessing a general superintendence,

534 and authorized to settle and declare

535 in the last resort

536 a uniform rule of civil justice.

537This is the more necessary

538 where the frame of the government

539 is so compounded

540 that the laws of the whole

541 are in danger of being contravened

542 by the laws of the parts.

543In this case, if the particular tribunals

544 are invested with a right

545 of ultimate jurisdiction,

546 besides the contradictions to be expected

547 from difference of opinion,

548 there will be much to fear

549 from the bias of local views

550 and prejudices,

551 and from the interference

552 of local regulations.

553As often as such an interference was to happen,

554 there would be reason to apprehend

555 that the provisions

556 of the particular laws

557 might be preferred

558 to those of the general laws;

559 for nothing is more natural to men in office

560 than to look with peculiar deference

561 towards that authority

562 to which they owe

563 their official existence.

564The treaties of the United States,

565 under the present Constitution,

566 are liable to the infractions

567 of thirteen different legislatures,

568 and as many different courts

569 of final jurisdiction,

570 acting under the authority

571 of those legislatures.

572The faith, the reputation,

573 the peace of the whole Union,

574 are thus continually at the mercy

575 of the prejudices, the passions,

576 and the interests

577 of every member of which it is composed.

578Is it possible that foreign nations

579 can either respect or confide

580 in such a government?

581Is it possible that the people of America

582 will longer consent to trust their honor,

583 their happiness, their safety,

584 on so precarious a foundation?

585In this review of the Confederation,

586 I have confined myself to the exhibition

587 of its most material defects;

588 passing over those imperfections

589 in its details

590 by which even a great part of the power

591 intended to be conferred upon it

592 has been in a great measure

593 rendered abortive.

594It must be by this time evident

595 to all men of reflection,

596 who can divest themselves

597 of the prepossessions

598 of preconceived opinions,

599 that it is a system

600 so radically vicious and unsound,

601 as to admit not of amendment

602 but by an entire change

603 in its leading features and characters.

604The organization of Congress

605 is itself utterly improper

606 for the exercise of those powers

607 which are necessary

608 to be deposited in the Union.

609A single assembly may be a proper receptacle

610 of those slender, or rather fettered, authorities,

611 which have been heretofore delegated

612 to the federal head;

613 but it would be inconsistent

614 with all the principles of good government,

615 to intrust it with those additional powers

616 which, even the moderate

617 and more rational adversaries

618 of the proposed Constitution admit,

619 ought to reside in the United States.

620If that plan should not be adopted,

621 and if the necessity of the Union

622 should be able

623 to withstand the ambitious aims

624 of those men

625 who may indulge magnificent schemes

626 of personal aggrandizement

627 from its dissolution,

628 the probability would be,

629 that we should run into the project

630 of conferring supplementary powers

631 upon Congress,

632 as they are now constituted;

633 and either the machine,

634 from the intrinsic feebleness

635 of its structure,

636 will moulder into pieces,

637 in spite of our ill-judged efforts

638 to prop it;

639 or, by successive augmentations

640 of its force an energy,

641 as necessity might prompt,

642 we shall finally accumulate,

643 in a single body,

644 all the most important prerogatives

645 of sovereignty,

646 and thus entail upon our posterity

647 one of the most execrable forms

648 of government

649 that human infatuation ever contrived.

650Thus, we should create in reality

651 that very tyranny

652 which the adversaries

653 of the new Constitution

654 either are, or affect to be,

655 solicitous to avert.

656It has not a little contributed

657 to the infirmities

658 of the existing federal system,

659 that it never had a ratification

660 by the PEOPLE.

661Resting on no better foundation

662 than the consent of the several legislatures,

663 it has been exposed

664 to frequent and intricate questions

665 concerning the validity of its powers,

666 and has, in some instances, given birth

667 to the enormous doctrine

668 of a right of legislative repeal.

669Owing its ratification to the law of a State,

670 it has been contended

671 that the same authority

672 might repeal the law

673 by which it was ratified.

674However gross a heresy it may be to maintain

675 that a PARTY to a COMPACT

676 has a right to revoke that COMPACT,

677 the doctrine itself

678 has had respectable advocates.

679The possibility of a question of this nature

680 proves the necessity of laying the foundations

681 of our national government

682 deeper than in the mere sanction

683 of delegated authority.

684The fabric of American empire ought to rest

685 on the solid basis

686 of THE CONSENT OF THE PEOPLE.

687The streams of national power

688 ought to flow immediately

689 from that pure, original fountain

690 of all legitimate authority.

691PUBLIUS.

692[1] This, as nearly as I can recollect,

693 was the sense of his speech

694 on introducing the last bill.

695[2] Encyclopedia, article "Empire."

696[3] New Hampshire, Rhode Island, New Jersey,

697 Delaware, Georgia, South Carolina, and Maryland

698 are a majority of the whole number of the States,

699 but they do not contain one third of the people.

700[4] Add New York and Connecticut

701 to the foregoing seven,

702 and they will be less than a majority.