Chapter: 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.(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 intercourse
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 regret 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 Delaware 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.

 Hamilton begins this essay by saying that in addition to the problems of the Article of Confederation that have already been discussed, there are others of equal importance that also need to be addressed. First, both Federalists and anti-Federalists agree that the lack of power to regulate commerce among the several states and between this government and foreign nations has created an abominable situation. For Hamilton, this is the biggest problem, which motivates a stronger form of government. Foreign governments are understandably reluctant to enter into trade agreements or treaties with us knowing that the individual states can violate, at their whim, the terms of these agreements. Under these circumstances, the United States cannot develop a favorable balance of trade or enjoy diplomatic relationships. In addition, the lack of uniform trade regulation has resulted in considerable animosity among the states. It is of the utmost importance that the national government have the power to regulate commerce. Next, Hamilton addresses the subject of the military, a power that under the confederation was merely "making requisitions upon the States for quotas of men." During the Revolution, this system was found wanting because it created competition between the states, "an auction for men." Several states promised their male citizens more money than other states were paying, and men, in attempt to force their states to increase military pay, delayed enlisting. This competition among the states, a type of blackmail, created dangerous situations, including confusion, expense, inefficiency, and undisciplined troops. Nothing but the "enthusiasm of liberty induced the people to endure." Besides the difficulties this situation created, it also was unfair because the states closest to the center of the war inevitably made the largest effort to meet their quotas; those farthest away from the fighting made little or no effort to meet them. Another issue that Hamilton feels necessitates the new constitution is "the right of equal suffrage among the states." Under the Articles of Confederation, all the states, whether large or small, were represented equally in the Congress. This system, however, means that in reality the people are unequally represented. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland constitute a majority of the states, but they do not contain one-third of the population. Thus, this situation violates the republican principles of majority rule. The citizens of the small states must realize that, sooner or later, the citizens of the large states will protest such an unfair arrangement. When that happens, the stability and welfare of the country will be threatened. A situation in which a responsible majority is frequently coerced by a small minority could result in anarchy. The other problem that arises from this legislative situation is that the government is vulnerable to foreign influence and corruption. It is difficult for a foreign government to influence a governing majority but relatively easy for them to corrupt or influence a powerful few. The other defect that Hamilton feels is severe is the lack of a Supreme Court, a body necessary to define and interpret the laws, as "laws are dead letter without courts to expound and define their true meaning and operation." In addition, a Supreme Court is needed to interpret and enforce the terms of treaties. A court is given more importance in the United States where laws can conflict. A government cannot exist if local biases and narrow interests dominate the national discourse. Last, Hamilton attacks the ratification of the Articles of Confederation. Because the Articles of Confederation were ratified by the state legislatures, Hamilton argues that they lack power and could be dismissed easily. Instead, he believes that "the fabric of American Empire ought to rest on the solid basis of the consent of the people."

