THE FEDERALIST PAPERS
Insufficiency of the Present Confederation to
Preserve the Unio)
From the New York Packet.
Tuesday, December 11, 1787
MADISON, with HAMILTON
TABLE OF CONTENTS
To the People of the State of New York:
FEDERALIST No. 20
To the People of the State of New York:
THE United Netherlands are a confederacy of republics, or rather of
aristocracies of a very remarkable texture, yet confirming all the lessons
derived from those which we have already reviewed.
2 The union is composed of seven coequal and sovereign states, and each state
or province is a composition of equal and independent cities. In all important
cases, not only the provinces but the cities must be unanimous.
3 The sovereignty of the Union is represented by the States-General, consisting
usually of about fifty deputies appointed by the provinces. They hold their
seats, some for life, some for six, three, and one years; from two provinces
they continue in appointment during pleasure.
4 The States-General have authority to enter into treaties and alliances; to
make war and peace; to raise armies and equip fleets; to ascertain quotas and
demand contributions. In all these cases, however, unanimity and the sanction of
their constituents are requisite. They have authority to appoint and receive
ambassadors; to execute treaties and alliances already formed; to provide for
the collection of duties on imports and exports; to regulate the mint, with a
saving to the provincial rights; to govern as sovereigns the dependent
territories. The provinces are restrained, unless with the general consent, from
entering into foreign treaties; from establishing imposts injurious to others,
or charging their neighbors with higher duties than their own subjects. A
council of state, a chamber of accounts, with five colleges of admiralty, aid
and fortify the federal administration.
5 The executive magistrate of the union is the
stadtholder, who is now an
hereditary prince. His principal weight and influence in the republic are
derived from this independent title; from his great patrimonial estates; from
his family connections with some of the chief potentates of Europe; and, more
than all, perhaps, from his being stadtholder in the several provinces, as well
as for the union; in which provincial quality he has the appointment of town
magistrates under certain regulations, executes provincial decrees, presides
when he pleases in the provincial tribunals, and has throughout the power of
pardon.
As stadtholder of the union, he has, however, considerable prerogatives.
6 In his political capacity he has authority to settle disputes between the
provinces, when other methods fail; to assist at the deliberations of the
States-General, and at their particular conferences; to give audiences to
foreign ambassadors, and to keep agents for his particular affairs at foreign
courts.
7 In his military capacity he commands the federal troops, provides for
garrisons, and in general regulates military affairs; disposes of all
appointments, from colonels to ensigns, and of the governments and posts of
fortified towns.
8 In his marine capacity he is admiral-general, and superintends and directs
every thing relative to naval forces and other naval affairs; presides in the
admiralties in person or by proxy; appoints lieutenant-admirals and other
officers; and establishes councils of war, whose sentences are not executed till
he approves them.
9 His revenue, exclusive of his private income, amounts to three hundred
thousand florins. The standing army which he commands consists of about forty
thousand men.
10 Such is the nature of the celebrated Belgic confederacy, as delineated on
parchment. What are the characters which practice has stamped upon it?
Imbecility in the government; discord among the provinces; foreign influence and
indignities; a precarious existence in peace, and peculiar calamities from war.
11 It was long ago remarked by Grotius, that nothing but the hatred of his
countrymen to the house of Austria kept them from being ruined by the vices of
their constitution.
12 The union of Utrecht, says another respectable writer, reposes an authority
in the States-General, seemingly sufficient to secure harmony, but the jealousy
in each province renders the practice very different from the theory.
13 The same instrument, says another, obliges each province to levy certain
contributions; but this article never could, and probably never will, be
executed; because the inland provinces, who have little commerce, cannot pay an
equal quota.
14 In matters of contribution, it is the practice to waive the articles of the
constitution. The danger of delay obliges the consenting provinces to furnish
their quotas, without waiting for the others; and then to obtain reimbursement
from the others, by deputations, which are frequent, or otherwise, as they can.
The great wealth and influence of the province of Holland enable her to effect
both these purposes.
15 It has more than once happened, that the deficiencies had to be ultimately
collected at the point of the bayonet; a thing practicable, though dreadful, in
a confedracy where one of the members exceeds in force all the rest, and where
several of them are too small to meditate resistance; but utterly impracticable
in one composed of members, several of which are equal to each other in strength
and resources, and equal singly to a vigorous and persevering defense.
16 Foreign ministers, says Sir William Temple, who was himself a foreign
minister, elude matters taken ad referendum, by tampering with the provinces and
cities. In 1726, the treaty of Hanover was delayed by these means a whole year.
Instances of a like nature are numerous and notorious.
17 In critical emergencies, the States-General are often compelled to overleap
their constitutional bounds. In 1688, they concluded a treaty of themselves at
the risk of their heads. The treaty of Westphalia, in 1648, by which their
independence was formerly and finally recognized, was concluded without the
consent of Zealand. Even as recently as the last treaty of peace with Great
Britain, the constitutional principle of unanimity was departed from. A weak
constitution must necessarily terminate in dissolution, for want of proper
powers, or the usurpation of powers requisite for the public safety. Whether the
usurpation, when once begun, will stop at the salutary point, or go forward to
the dangerous extreme, must depend on the contingencies of the moment. Tyranny
has perhaps oftener grown out of the assumptions of power, called for, on
pressing exigencies, by a defective constitution, than out of the full exercise
of the largest constitutional authorities.
18 Notwithstanding the calamities produced by the stadtholdership, it has been
supposed that without his influence in the individual provinces, the causes of
anarchy manifest in the confederacy would long ago have dissolved it.
"Under such a government," says the Abbe Mably, "the Union could
never have subsisted, if the provinces had not a spring within themselves,
capable of quickening their tardiness, and compelling them to the same way of
thinking. This spring is the stadtholder." It is remarked by Sir William
Temple, "that in the intermissions of the stadtholdership, Holland, by her
riches and her authority, which drew the others into a sort of dependence,
supplied the place."
19 These are not the only circumstances which have controlled the tendency to
anarchy and dissolution. The surrounding powers impose an absolute necessity of
union to a certain degree, at the same time that they nourish by their intrigues
the constitutional vices which keep the republic in some degree always at their
mercy.
20 The true patriots have long bewailed the fatal tendency of these vices, and
have made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES,
convened for the special purpose, to apply a remedy. As many times has their
laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming the
known, the acknowledged, the fatal evils of the existing constitution. Let us
pause, my fellow-citizens, for one moment, over this melancholy and monitory
lesson of history; and with the tear that drops for the calamities brought on
mankind by their adverse opinions and selfish passions, let our gratitude mingle
an ejaculation to Heaven, for the propitious concord which has distinguished the
consultations for our political happiness.
A design was also conceived of establishing a general tax to be administered
by the federal authority. This also had its adversaries and failed.
21 This unhappy people seem to be now suffering from popular convulsions, from
dissensions among the states, and from the actual invasion of foreign arms, the
crisis of their distiny. All nations have their eyes fixed on the awful
spectacle. The first wish prompted by humanity is, that this severe trial may
issue in such a revolution of their government as will establish their union,
and render it the parent of tranquillity, freedom and happiness: The next, that
the asylum under which, we trust, the enjoyment of these blessings will speedily
be secured in this country, may receive and console them for the catastrophe of
their own.
22 I make no apology for having dwelt so long on the contemplation of these
federal precedents. Experience is the oracle of truth; and where its responses
are unequivocal, they ought to be conclusive and sacred. The important truth,
which it unequivocally pronounces in the present case, is that a sovereignty
over sovereigns, a government over governments, a legislation for communities,
as contradistinguished from individuals, as it is a solecism in theory, so in
practice it is subversive of the order and ends of civil polity, by substituting
VIOLENCE in place of LAW, or the destructive COERCION of the SWORD in place of
the mild and salutary COERCION of the MAGISTRACY.
PUBLIUS
FEDERALIST No. 21
Other Defects of the Present Confederation For the Independent Journal.
Wednesday, December 12, 1787
HAMILTON
To the People of the State of New York:
HAVING in the three last numbers taken a summary review of the principal
circumstances and events which have depicted the genius and fate of other
confederate governments, I shall now proceed in the enumeration of the most
important of those defects which have hitherto disappointed our hopes from the
system established among ourselves. To form a safe and satisfactory judgment of
the proper remedy, it is absolutely necessary that we should be well acquainted
with the extent and malignity of the disease.
2 The next most palpable defect of the subsisting Confederation, is the total
want of a SANCTION to its laws. The United States, as now composed, have no
powers to exact obedience, or punish disobedience to their resolutions, either
by pecuniary mulcts, by a suspension or divestiture of privileges, or by any
other constitutional mode. There is no express delegation of authority to them
to use force against delinquent members; and if such a right should be ascribed
to the federal head, as resulting from the nature of the social compact between
the States, it must be by inference and construction, in the face of that part
of the second article, by which it is declared, "that each State shall
retain every power, jurisdiction, and right, not EXPRESSLY delegated to the
United States in Congress assembled." There is, doubtless, a striking
absurdity in supposing that a right of this kind does not exist, but we are
reduced to the dilemma either of embracing that supposition, preposterous as it
may seem, or of contravening or explaining away a provision, which has been of
late a repeated theme of the eulogies of those who oppose the new Constitution;
and the want of which, in that plan, has been the subject of much plausible
animadversion, and severe criticism. If we are unwilling to impair the force of
this applauded provision, we shall be obliged to conclude, that the United
States afford the extraordinary spectacle of a government destitute even of the
shadow of constitutional power to enforce the execution of its own laws. It will
appear, from the specimens which have been cited, that the American Confederacy,
in this particular, stands discriminated from every other institution of a
similar kind, and exhibits a new and unexampled phenomenon in the political
world.
3 The want of a mutual guaranty of the State governments is another capital
imperfection in the federal plan. There is nothing of this kind declared in the
articles that compose it; and to imply a tacit guaranty from considerations of
utility, would be a still more flagrant departure from the clause which has been
mentioned, than to imply a tacit power of coercion from the like considerations.
The want of a guaranty, though it might in its consequences endanger the Union,
does not so immediately attack its existence as the want of a constitutional
sanction to its laws.
4 Without a guaranty the assistance to be derived from the Union in repelling
those domestic dangers which may sometimes threaten the existence of the State
constitutions, must be renounced. Usurpation may rear its crest in each State,
and trample upon the liberties of the people, while the national government
could legally do nothing more than behold its encroachments with indignation and
regret. A successful faction may erect a tyranny on the ruins of order and law,
while no succor could constitutionally be afforded by the Union to the friends
and supporters of the government. The tempestuous situation from which
Massachusetts has scarcely emerged, evinces that dangers of this kind are not
merely speculative. Who can determine what might have been the issue of her late
convulsions, if the malcontents had been headed by a Caesar or by a Cromwell?
Who can predict what effect a despotism, established in Massachusetts, would
have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New
York?
5 The inordinate pride of State importance has suggested to some minds an
objection to the principle of a guaranty in the federal government, as involving
an officious interference in the domestic concerns of the members. A scruple of
this kind would deprive us of one of the principal advantages to be expected
from union, and can only flow from a misapprehension of the nature of the
provision itself. It could be no impediment to reforms of the State constitution
by a majority of the people in a legal and peaceable mode. This right would
remain undiminished. The guaranty could only operate against changes to be
effected by violence. Towards the preventions of calamities of this kind, too
many checks cannot be provided. The peace of society and the stability of
government depend absolutely on the efficacy of the precautions adopted on this
head. Where the whole power of the government is in the hands of the people,
there is the less pretense for the use of violent remedies in partial or
occasional distempers of the State. The natural cure for an ill-administration,
in a popular or representative constitution, is a change of men. A guaranty by
the national authority would be as much levelled against the usurpations of
rulers as against the ferments and outrages of faction and sedition in the
community.
6 The principle of regulating the contributions of the States to the common
treasury by QUOTAS is another fundamental error in the Confederation. Its
repugnancy to an adequate supply of the national exigencies has been already
pointed out, and has sufficiently appeared from the trial which has been made of
it. I speak of it now solely with a view to equality among the States. Those who
have been accustomed to contemplate the circumstances which produce and
constitute national wealth, must be satisfied that there is no common standard
or barometer by which the degrees of it can be ascertained. Neither the value of
lands, nor the numbers of the people, which have been successively proposed as
the rule of State contributions, has any pretension to being a just
representative. If we compare the wealth of the United Netherlands with that of
Russia or Germany, or even of France, and if we at the same time compare the
total value of the lands and the aggregate population of that contracted
district with the total value of the lands and the aggregate population of the
immense regions of either of the three last-mentioned countries, we shall at
once discover that there is no comparison between the proportion of either of
these two objects and that of the relative wealth of those nations. If the like
parallel were to be run between several of the American States, it would furnish
a like result. Let Virginia be contrasted with North Carolina, Pennsylvania with
Connecticut, or Maryland with New Jersey, and we shall be convinced that the
respective abilities of those States, in relation to revenue, bear little or no
analogy to their comparative stock in lands or to their comparative population.
The position may be equally illustrated by a similar process between the
counties of the same State. No man who is acquainted with the State of New York
will doubt that the active wealth of King's County bears a much greater
proportion to that of Montgomery than it would appear to be if we should take
either the total value of the lands or the total number of the people as a
criterion!
7 The wealth of nations depends upon an infinite variety of causes. Situation,
soil, climate, the nature of the productions, the nature of the government, the
genius of the citizens, the degree of information they possess, the state of
commerce, of arts, of industry, these circumstances and many more, too complex,
minute, or adventitious to admit of a particular specification, occasion
differences hardly conceivable in the relative opulence and riches of different
countries. The consequence clearly is that there can be no common measure of
national wealth, and, of course, no general or stationary rule by which the
ability of a state to pay taxes can be determined. The attempt, therefore, to
regulate the contributions of the members of a confederacy by any such rule,
cannot fail to be productive of glaring inequality and extreme oppression.
8 This inequality would of itself be sufficient in America to work the eventual
destruction of the Union, if any mode of enforcing a compliance with its
requisitions could be devised. The suffering States would not long consent to
remain associated upon a principle which distributes the public burdens with so
unequal a hand, and which was calculated to impoverish and oppress the citizens
of some States, while those of others would scarcely be conscious of the small
proportion of the weight they were required to sustain. This, however, is an
evil inseparable from the principle of quotas and requisitions.
9 There is no method of steering clear of this inconvenience, but by
authorizing the national government to raise its own revenues in its own way.
Imposts, excises, and, in general, all duties upon articles of consumption, may
be compared to a fluid, which will, in time, find its level with the means of
paying them. The amount to be contributed by each citizen will in a degree be at
his own option, and can be regulated by an attention to his resources. The rich
may be extravagant, the poor can be frugal; and private oppression may always be
avoided by a judicious selection of objects proper for such impositions. If
inequalities should arise in some States from duties on particular objects,
these will, in all probability, be counterbalanced by proportional inequalities
in other States, from the duties on other objects. In the course of time and
things, an equilibrium, as far as it is attainable in so complicated a subject,
will be established everywhere. Or, if inequalities should still exist, they
would neither be so great in their degree, so uniform in their operation, nor so
odious in their appearance, as those which would necessarily spring from quotas,
upon any scale that can possibly be devised.
10 It is a signal advantage of taxes on articles of consumption, that they
contain in their own nature a security against excess. They prescribe their own
limit; which cannot be exceeded without defeating the end proposed, that is, an
extension of the revenue. When applied to this object, the saying is as just as
it is witty, that, "in political arithmetic, two and two do not always make
four." If duties are too high, they lessen the consumption; the collection
is eluded; and the product to the treasury is not so great as when they are
confined within proper and moderate bounds. This forms a complete barrier
against any material oppression of the citizens by taxes of this class, and is
itself a natural limitation of the power of imposing them.
11 Impositions of this kind usually fall under the denomination of indirect
taxes, and must for a long time constitute the chief part of the revenue raised
in this country. Those of the direct kind, which principally relate to land and
buildings, may admit of a rule of apportionment. Either the value of land, or
the number of the people, may serve as a standard. The state of agriculture and
the populousness of a country have been considered as nearly connected with each
other. And, as a rule, for the purpose intended, numbers, in the view of
simplicity and certainty, are entitled to a preference. In every country it is a
herculean task to obtain a valuation of the land; in a country imperfectly
settled and progressive in improvement, the difficulties are increased almost to
impracticability. The expense of an accurate valuation is, in all situations, a
formidable objection. In a branch of taxation where no limits to the discretion
of the government are to be found in the nature of things, the establishment of
a fixed rule, not incompatible with the end, may be attended with fewer
inconveniences than to leave that discretion altogether at large.
PUBLIUS
FEDERALIST No. 22
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]
2 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.
3 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.
4 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.
5 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.
6 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.
7 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.
8 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.
9 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.
10 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.
11 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.
12 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.
13 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.
14 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.
15 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?
16 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.
17 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.
18 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. 23
The Necessity of a Government as Energetic as the One Proposed to the
Preservation of the Union
From the New York Packet.
Tuesday, December 18, 1787.
HAMILTON
To the People of the State of New York:
THE necessity of a Constitution, at least equally energetic with the one
proposed, to the preservation of the Union, is the point at the examination of
which we are now arrived.
This inquiry will naturally divide itself into three branches -- the objects
to be provided for by the federal government, the quantity of power necessary to
the accomplishment of those objects, the persons upon whom that power ought to
operate. Its distribution and organization will more properly claim our
attention under the succeeding head.
2 The principal purposes to be answered by union are these -- the common
defense of the members; the preservation of the public peace as well against
internal convulsions as external attacks; the regulation of commerce with other
nations and between the States; the superintendence of our intercourse,
political and commercial, with foreign countries.
3 The authorities essential to the common defense are these: to raise armies;
to build and equip fleets; to prescribe rules for the government of both; to
direct their operations; to provide for their support. These powers ought to
exist without limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE
EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE CORRESPONDENT EXTENT AND
VARIETY OF THE MEANS WHICH MAY BE NECESSARY TO SATISFY THEM. The circumstances
that endanger the safety of nations are infinite, and for this reason no
constitutional shackles can wisely be imposed on the power to which the care of
it is committed. This power ought to be coextensive with all the possible
combinations of such circumstances; and ought to be under the direction of the
same councils which are appointed to preside over the common defense.
4 This is one of those truths which, to a correct and unprejudiced mind,
carries its own evidence along with it; and may be obscured, but cannot be made
plainer by argument or reasoning. It rests upon axioms as simple as they are
universal; the MEANS ought to be proportioned to the END; the persons, from
whose agency the attainment of any END is expected, ought to possess the MEANS
by which it is to be attained.
5 Whether there ought to be a federal government intrusted with the care of the
common defense, is a question in the first instance, open for discussion; but
the moment it is decided in the affirmative, it will follow, that that
government ought to be clothed with all the powers requisite to complete
execution of its trust. And unless it can be shown that the circumstances which
may affect the public safety are reducible within certain determinate limits;
unless the contrary of this position can be fairly and rationally disputed, it
must be admitted, as a necessary consequence, that there can be no limitation of
that authority which is to provide for the defense and protection of the
community, in any matter essential to its efficacy that is, in any matter
essential to the FORMATION, DIRECTION, or SUPPORT of the NATIONAL FORCES.
6 Defective as the present Confederation has been proved to be, this principle
appears to have been fully recognized by the framers of it; though they have not
made proper or adequate provision for its exercise. Congress have an unlimited
discretion to make requisitions of men and money; to govern the army and navy;
to direct their operations. As their requisitions are made constitutionally
binding upon the States, who are in fact under the most solemn obligations to
furnish the supplies required of them, the intention evidently was that the
United States should command whatever resources were by them judged requisite to
the "common defense and general welfare." It was presumed that a sense
of their true interests, and a regard to the dictates of good faith, would be
found sufficient pledges for the punctual performance of the duty of the members
to the federal head.
7 The experiment has, however, demonstrated that this expectation was
ill-founded and illusory; and the observations, made under the last head, will,
I imagine, have sufficed to convince the impartial and discerning, that there is
an absolute necessity for an entire change in the first principles of the
system; that if we are in earnest about giving the Union energy and duration, we
must abandon the vain project of legislating upon the States in their collective
capacities; we must extend the laws of the federal government to the individual
citizens of America; we must discard the fallacious scheme of quotas and
requisitions, as equally impracticable and unjust. The result from all this is
that the Union ought to be invested with full power to levy troops; to build and
equip fleets; and to raise the revenues which will be required for the formation
and support of an army and navy, in the customary and ordinary modes practiced
in other governments.
8 If the circumstances of our country are such as to demand a compound instead
of a simple, a confederate instead of a sole, government, the essential point
which will remain to be adjusted will be to discriminate the OBJECTS, as far as
it can be done, which shall appertain to the different provinces or departments
of power; allowing to each the most ample authority for fulfilling the objects
committed to its charge. Shall the Union be constituted the guardian of the
common safety? Are fleets and armies and revenues necessary to this purpose? The
government of the Union must be empowered to pass all laws, and to make all
regulations which have relation to them. The same must be the case in respect to
commerce, and to every other matter to which its jurisdiction is permitted to
extend. Is the administration of justice between the citizens of the same State
the proper department of the local governments? These must possess all the
authorities which are connected with this object, and with every other that may
be allotted to their particular cognizance and direction. Not to confer in each
case a degree of power commensurate to the end, would be to violate the most
obvious rules of prudence and propriety, and improvidently to trust the great
interests of the nation to hands which are disabled from managing them with
vigor and success.
9 Who is likely to make suitable provisions for the public defense, as that
body to which the guardianship of the public safety is confided; which, as the
centre of information, will best understand the extent and urgency of the
dangers that threaten; as the representative of the WHOLE, will feel itself most
deeply interested in the preservation of every part; which, from the
responsibility implied in the duty assigned to it, will be most sensibly
impressed with the necessity of proper exertions; and which, by the extension of
its authority throughout the States, can alone establish uniformity and concert
in the plans and measures by which the common safety is to be secured? Is there
not a manifest inconsistency in devolving upon the federal government the care
of the general defense, and leaving in the State governments the EFFECTIVE
powers by which it is to be provided for? Is not a want of co-operation the
infallible consequence of such a system? And will not weakness, disorder, an
undue distribution of the burdens and calamities of war, an unnecessary and
intolerable increase of expense, be its natural and inevitable concomitants?
Have we not had unequivocal experience of its effects in the course of the
revolution which we have just accomplished?
10 Every view we may take of the subject, as candid inquirers after truth, will
serve to convince us, that it is both unwise and dangerous to deny the federal
government an unconfined authority, as to all those objects which are intrusted
to its management. It will indeed deserve the most vigilant and careful
attention of the people, to see that it be modeled in such a manner as to admit
of its being safely vested with the requisite powers. If any plan which has
been, or may be, offered to our consideration, should not, upon a dispassionate
inspection, be found to answer this description, it ought to be rejected. A
government, the constitution of which renders it unfit to be trusted with all
the powers which a free people ought to delegate to any government, would be an
unsafe and improper depositary of the NATIONAL INTERESTS. Wherever THESE can
with propriety be confided, the coincident powers may safely accompany them.
This is the true result of all just reasoning upon the subject. And the
adversaries of the plan promulgated by the convention ought to have confined
themselves to showing, that the internal structure of the proposed government
was such as to render it unworthy of the confidence of the people. They ought
not to have wandered into inflammatory declamations and unmeaning cavils about
the extent of the powers. The POWERS are not too extensive for the OBJECTS of
federal administration, or, in other words, for the management of our NATIONAL
INTERESTS; nor can any satisfactory argument be framed to show that they are
chargeable with such an excess. If it be true, as has been insinuated by some of
the writers on the other side, that the difficulty arises from the nature of the
thing, and that the extent of the country will not permit us to form a
government in which such ample powers can safely be reposed, it would prove that
we ought to contract our views, and resort to the expedient of separate
confederacies, which will move within more practicable spheres. For the
absurdity must continually stare us in the face of confiding to a government the
direction of the most essential national interests, without daring to trust it
to the authorities which are indispensible to their proper and efficient
management. Let us not attempt to reconcile contradictions, but firmly embrace a
rational alternative.
11 I trust, however, that the impracticability of one general system cannot be
shown. I am greatly mistaken, if any thing of weight has yet been advanced of
this tendency; and I flatter myself, that the observations which have been made
in the course of these papers have served to place the reverse of that position
in as clear a light as any matter still in the womb of time and experience can
be susceptible of. This, at all events, must be evident, that the very
difficulty itself, drawn from the extent of the country, is the strongest
argument in favor of an energetic government; for any other can certainly never
preserve the Union of so large an empire. If we embrace the tenets of those who
oppose the adoption of the proposed Constitution, as the standard of our
political creed, we cannot fail to verify the gloomy doctrines which predict the
impracticability of a national system pervading entire limits of the present
Confederacy.
PUBLIUS
FEDERALIST No. 24
The Powers Necessary to the Common Defense Further Considered For the
Independent Journal.
Wednesday, December 19, 1787
HAMILTON
To the People of the State of New York:
TO THE powers proposed to be conferred upon the federal government, in
respect to the creation and direction of the national forces, I have met with
but one specific objection, which, if I understand it right, is this, that
proper provision has not been made against the existence of standing armies in
time of peace; an objection which, I shall now endeavor to show, rests on weak
and unsubstantial foundations.
2 It has indeed been brought forward in the most vague and general form,
supported only by bold assertions, without the appearance of argument; without
even the sanction of theoretical opinions; in contradiction to the practice of
other free nations, and to the general sense of America, as expressed in most of
the existing constitutions. The proprietory of this remark will appear, the
moment it is recollected that the objection under consideration turns upon a
supposed necessity of restraining the LEGISLATIVE authority of the nation, in
the article of military establishments; a principle unheard of, except in one or
two of our State constitutions, and rejected in all the rest.
3 A stranger to our politics, who was to read our newspapers at the present
juncture, without having previously inspected the plan reported by the
convention, would be naturally led to one of two conclusions: either that it
contained a positive injunction, that standing armies should be kept up in time
of peace; or that it vested in the EXECUTIVE the whole power of levying troops,
without subjecting his discretion, in any shape, to the control of the
legislature.
4 If he came afterwards to peruse the plan itself, he would be surprised to
discover, that neither the one nor the other was the case; that the whole power
of raising armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this
legislature was to be a popular body, consisting of the representatives of the
people periodically elected; and that instead of the provision he had supposed
in favor of standing armies, there was to be found, in respect to this object,
an important qualification even of the legislative discretion, in that clause
which forbids the appropriation of money for the support of an army for any
longer period than two years a precaution which, upon a nearer view of it, will
appear to be a great and real security against the keeping up of troops without
evident necessity.
5 Disappointed in his first surmise, the person I have supposed would be apt to
pursue his conjectures a little further. He would naturally say to himself, it
is impossible that all this vehement and pathetic declamation can be without
some colorable pretext. It must needs be that this people, so jealous of their
liberties, have, in all the preceding models of the constitutions which they
have established, inserted the most precise and rigid precautions on this point,
the omission of which, in the new plan, has given birth to all this apprehension
and clamor.
6 If, under this impression, he proceeded to pass in review the several State
constitutions, how great would be his disappointment to find that TWO ONLY of
them[1] contained an interdiction of standing armies in time of peace; that the
other eleven had either observed a profound silence on the subject, or had in
express terms admitted the right of the Legislature to authorize their
existence.
7 Still, however he would be persuaded that there must be some plausible
foundation for the cry raised on this head. He would never be able to imagine,
while any source of information remained unexplored, that it was nothing more
than an experiment upon the public credulity, dictated either by a deliberate
intention to deceive, or by the overflowings of a zeal too intemperate to be
ingenuous. It would probably occur to him, that he would be likely to find the
precautions he was in search of in the primitive compact between the States.
Here, at length, he would expect to meet with a solution of the enigma. No
doubt, he would observe to himself, the existing Confederation must contain the
most explicit provisions against military establishments in time of peace; and a
departure from this model, in a favorite point, has occasioned the discontent
which appears to influence these political champions.
8 If he should now apply himself to a careful and critical survey of the
articles of Confederation, his astonishment would not only be increased, but
would acquire a mixture of indignation, at the unexpected discovery, that these
articles, instead of containing the prohibition he looked for, and though they
had, with jealous circumspection, restricted the authority of the State
legislatures in this particular, had not imposed a single restraint on that of
the United States. If he happened to be a man of quick sensibility, or ardent
temper, he could now no longer refrain from regarding these clamors as the
dishonest artifices of a sinister and unprincipled opposition to a plan which
ought at least to receive a fair and candid examination from all sincere lovers
of their country! How else, he would say, could the authors of them have been
tempted to vent such loud censures upon that plan, about a point in which it
seems to have conformed itself to the general sense of America as declared in
its different forms of government, and in which it has even superadded a new and
powerful guard unknown to any of them? If, on the contrary, he happened to be a
man of calm and dispassionate feelings, he would indulge a sigh for the frailty
of human nature, and would lament, that in a matter so interesting to the
happiness of millions, the true merits of the question should be perplexed and
entangled by expedients so unfriendly to an impartial and right determination.
Even such a man could hardly forbear remarking, that a conduct of this kind has
too much the appearance of an intention to mislead the people by alarming their
passions, rather than to convince them by arguments addressed to their
understandings.
9 But however little this objection may be countenanced, even by precedents
among ourselves, it may be satisfactory to take a nearer view of its intrinsic
merits. From a close examination it will appear that restraints upon the
discretion of the legislature in respect to military establishments in time of
peace, would be improper to be imposed, and if imposed, from the necessities of
society, would be unlikely to be observed.
10 Though a wide ocean separates the United States from Europe, yet there are
various considerations that warn us against an excess of confidence or security.
On one side of us, and stretching far into our rear, are growing settlements
subject to the dominion of Britain. On the other side, and extending to meet the
British settlements, are colonies and establishments subject to the dominion of
Spain. This situation and the vicinity of the West India Islands, belonging to
these two powers create between them, in respect to their American possessions
and in relation to us, a common interest. The savage tribes on our Western
frontier ought to be regarded as our natural enemies, their natural allies,
because they have most to fear from us, and most to hope from them. The
improvements in the art of navigation have, as to the facility of communication,
rendered distant nations, in a great measure, neighbors. Britain and Spain are
among the principal maritime powers of Europe. A future concert of views between
these nations ought not to be regarded as improbable. The increasing remoteness
of consanguinity is every day diminishing the force of the family compact
between France and Spain. And politicians have ever with great reason considered
the ties of blood as feeble and precarious links of political connection. These
circumstances combined, admonish us not to be too sanguine in considering
ourselves as entirely out of the reach of danger.
11 Previous to the Revolution, and ever since the peace, there has been a
constant necessity for keeping small garrisons on our Western frontier. No
person can doubt that these will continue to be indispensable, if it should only
be against the ravages and depredations of the Indians. These garrisons must
either be furnished by occasional detachments from the militia, or by permanent
corps in the pay of the government. The first is impracticable; and if
practicable, would be pernicious. The militia would not long, if at all, submit
to be dragged from their occupations and families to perform that most
disagreeable duty in times of profound peace. And if they could be prevailed
upon or compelled to do it, the increased expense of a frequent rotation of
service, and the loss of labor and disconcertion of the industrious pursuits of
individuals, would form conclusive objections to the scheme. It would be as
burdensome and injurious to the public as ruinous to private citizens. The
latter resource of permanent corps in the pay of the government amounts to a
standing army in time of peace; a small one, indeed, but not the less real for
being small. Here is a simple view of the subject, that shows us at once the
impropriety of a constitutional interdiction of such establishments, and the
necessity of leaving the matter to the discretion and prudence of the
legislature.
12 In proportion to our increase in strength, it is probable, nay, it may be
said certain, that Britain and Spain would augment their military establishments
in our neighborhood. If we should not be willing to be exposed, in a naked and
defenseless condition, to their insults and encroachments, we should find it
expedient to increase our frontier garrisons in some ratio to the force by which
our Western settlements might be annoyed. There are, and will be, particular
posts, the possession of which will include the command of large districts of
territory, and facilitate future invasions of the remainder. It may be added
that some of those posts will be keys to the trade with the Indian nations. Can
any man think it would be wise to leave such posts in a situation to be at any
instant seized by one or the other of two neighboring and formidable powers? To
act this part would be to desert all the usual maxims of prudence and policy.
13 If we mean to be a commercial people, or even to be secure on our Atlantic
side, we must endeavor, as soon as possible, to have a navy. To this purpose
there must be dock-yards and arsenals; and for the defense of these,
fortifications, and probably garrisons. When a nation has become so powerful by
sea that it can protect its dock-yards by its fleets, this supersedes the
necessity of garrisons for that purpose; but where naval establishments are in
their infancy, moderate garrisons will, in all likelihood, be found an
indispensable security against descents for the destruction of the arsenals and
dock-yards, and sometimes of the fleet itself.
PUBLIUS
1 This statement of the matter is taken from the printed collection of State
constitutions. Pennsylvania and North Carolina are the two which contain the
interdiction in these words: "As standing armies in time of peace are
dangerous to liberty, THEY OUGHT NOT to be kept up." This is, in truth,
rather a CAUTION than a PROHIBITION. New Hampshire, Massachusetts, Delaware, and
Maryland have, in each of their bils of rights, a clause to this effect:
"Standing armies are dangerous to liberty, and ought not to be raised or
kept up WITHOUT THE CONSENT OF THE LEGISLATURE"; which is a formal
admission of the authority of the Legislature. New York has no bills of rights,
and her constitution says not a word about the matter. No bills of rights appear
annexed to the constitutions of the other States, except the foregoing, and
their constitutions are equally silent. I am told, however that one or two
States have bills of rights which do not appear in this collection; but that
those also recognize the right of the legislative authority in this respect.
FEDERALIST No. 25
The Same Subject Continued (The Powers Necessary to the Common Defense
Further Considered)
From the New York Packet.
Friday, December 21, 1787.
HAMILTON
To the People of the State of New York:
IT MAY perhaps be urged that the objects enumerated in the preceding number
ought to be provided for by the State governments, under the direction of the
Union. But this would be, in reality, an inversion of the primary principle of
our political association, as it would in practice transfer the care of the
common defense from the federal head to the individual members: a project
oppressive to some States, dangerous to all, and baneful to the Confederacy.
2 The territories of Britain, Spain, and of the Indian nations in our
neighborhood do not border on particular States, but encircle the Union from
Maine to Georgia. The danger, though in different degrees, is therefore common.
And the means of guarding against it ought, in like manner, to be the objects of
common councils and of a common treasury. It happens that some States, from
local situation, are more directly exposed. New York is of this class. Upon the
plan of separate provisions, New York would have to sustain the whole weight of
the establishments requisite to her immediate safety, and to the mediate or
ultimate protection of her neighbors. This would neither be equitable as it
respected New York nor safe as it respected the other States. Various
inconveniences would attend such a system. The States, to whose lot it might
fall to support the necessary establishments, would be as little able as
willing, for a considerable time to come, to bear the burden of competent
provisions. The security of all would thus be subjected to the parsimony,
improvidence, or inability of a part. If the resources of such part becoming
more abundant and extensive, its provisions should be proportionally enlarged,
the other States would quickly take the alarm at seeing the whole military force
of the Union in the hands of two or three of its members, and those probably
amongst the most powerful. They would each choose to have some counterpoise, and
pretenses could easily be contrived. In this situation, military establishments,
nourished by mutual jealousy, would be apt to swell beyond their natural or
proper size; and being at the separate disposal of the members, they would be
engines for the abridgment or demolition of the national authority.
3 Reasons have been already given to induce a supposition that the State
governments will too naturally be prone to a rivalship with that of the Union,
the foundation of which will be the love of power; and that in any contest
between the federal head and one of its members the people will be most apt to
unite with their local government. If, in addition to this immense advantage,
the ambition of the members should be stimulated by the separate and independent
possession of military forces, it would afford too strong a temptation and too
great a facility to them to make enterprises upon, and finally to subvert, the
constitutional authority of the Union. On the other hand, the liberty of the
people would be less safe in this state of things than in that which left the
national forces in the hands of the national government. As far as an army may
be considered as a dangerous weapon of power, it had better be in those hands of
which the people are most likely to be jealous than in those of which they are
least likely to be jealous. For it is a truth, which the experience of ages has
attested, that the people are always most in danger when the means of injuring
their rights are in the possession of those of whom they entertain the least
suspicion.
4 The framers of the existing Confederation, fully aware of the danger to the
Union from the separate possession of military forces by the States, have, in
express terms, prohibited them from having either ships or troops, unless with
the consent of Congress. The truth is, that the existence of a federal
government and military establishments under State authority are not less at
variance with each other than a due supply of the federal treasury and the
system of quotas and requisitions.
5 There are other lights besides those already taken notice of, in which the
impropriety of restraints on the discretion of the national legislature will be
equally manifest. The design of the objection, which has been mentioned, is to
preclude standing armies in time of peace, though we have never been informed
how far it is designed the prohibition should extend; whether to raising armies
as well as to KEEPING THEM UP in a season of tranquillity or not. If it be
confined to the latter it will have no precise signification, and it will be
ineffectual for the purpose intended. When armies are once raised what shall be
denominated "keeping them up," contrary to the sense of the
Constitution? What time shall be requisite to ascertain the violation? Shall it
be a week, a month, a year? Or shall we say they may be continued as long as the
danger which occasioned their being raised continues? This would be to admit
that they might be kept up IN TIME OF PEACE, against threatening or impending
danger, which would be at once to deviate from the literal meaning of the
prohibition, and to introduce an extensive latitude of construction. Who shall
judge of the continuance of the danger? This must undoubtedly be submitted to
the national government, and the matter would then be brought to this issue,
that the national government, to provide against apprehended danger, might in
the first instance raise troops, and might afterwards keep them on foot as long
as they supposed the peace or safety of the community was in any degree of
jeopardy. It is easy to perceive that a discretion so latitudinary as this would
afford ample room for eluding the force of the provision.
6 The supposed utility of a provision of this kind can only be founded on the
supposed probability, or at least possibility, of a combination between the
executive and the legislative, in some scheme of usurpation. Should this at any
time happen, how easy would it be to fabricate pretenses of approaching danger!
Indian hostilities, instigated by Spain or Britain, would always be at hand.
Provocations to produce the desired appearances might even be given to some
foreign power, and appeased again by timely concessions. If we can reasonably
presume such a combination to have been formed, and that the enterprise is
warranted by a sufficient prospect of success, the army, when once raised, from
whatever cause, or on whatever pretext, may be applied to the execution of the
project.
7 If, to obviate this consequence, it should be resolved to extend the
prohibition to the RAISING of armies in time of peace, the United States would
then exhibit the most extraordinary spectacle which the world has yet seen, that
of a nation incapacitated by its Constitution to prepare for defense, before it
was actually invaded. As the ceremony of a formal denunciation of war has of
late fallen into disuse, the presence of an enemy within our territories must be
waited for, as the legal warrant to the government to begin its levies of men
for the protection of the State. We must receive the blow, before we could even
prepare to return it. All that kind of policy by which nations anticipate
distant danger, and meet the gathering storm, must be abstained from, as
contrary to the genuine maxims of a free government. We must expose our property
and liberty to the mercy of foreign invaders, and invite them by our weakness to
seize the naked and defenseless prey, because we are afraid that rulers, created
by our choice, dependent on our will, might endanger that liberty, by an abuse
of the means necessary to its preservation.
8 Here I expect we shall be told that the militia of the country is its natural
bulwark, and would be at all times equal to the national defense. This doctrine,
in substance, had like to have lost us our independence. It cost millions to the
United States that might have been saved. The facts which, from our own
experience, forbid a reliance of this kind, are too recent to permit us to be
the dupes of such a suggestion. The steady operations of war against a regular
and disciplined army can only be successfully conducted by a force of the same
kind. Considerations of economy, not less than of stability and vigor, confirm
this position. The American militia, in the course of the late war, have, by
their valor on numerous occasions, erected eternal monuments to their fame; but
the bravest of them feel and know that the liberty of their country could not
have been established by their efforts alone, however great and valuable they
were. War, like most other things, is a science to be acquired and perfected by
diligence, by perserverance, by time, and by practice.
9 All violent policy, as it is contrary to the natural and experienced course
of human affairs, defeats itself. Pennsylvania, at this instant, affords an
example of the truth of this remark. The Bill of Rights of that State declares
that standing armies are dangerous to liberty, and ought not to be kept up in
time of peace. Pennsylvania, nevertheless, in a time of profound peace, from the
existence of partial disorders in one or two of her counties, has resolved to
raise a body of troops; and in all probability will keep them up as long as
there is any appearance of danger to the public peace. The conduct of
Massachusetts affords a lesson on the same subject, though on different ground.
That State (without waiting for the sanction of Congress, as the articles of the
Confederation require) was compelled to raise troops to quell a domestic
insurrection, and still keeps a corps in pay to prevent a revival of the spirit
of revolt. The particular constitution of Massachusetts opposed no obstacle to
the measure; but the instance is still of use to instruct us that cases are
likely to occur under our government, as well as under those of other nations,
which will sometimes render a military force in time of peace essential to the
security of the society, and that it is therefore improper in this respect to
control the legislative discretion. It also teaches us, in its application to
the United States, how little the rights of a feeble government are likely to be
respected, even by its own constituents. And it teaches us, in addition to the
rest, how unequal parchment provisions are to a struggle with public necessity.
10 It was a fundamental maxim of the Lacedaemonian commonwealth, that the post
of admiral should not be conferred twice on the same person. The Peloponnesian
confederates, having suffered a severe defeat at sea from the Athenians,
demanded Lysander, who had before served with success in that capacity, to
command the combined fleets. The Lacedaemonians, to gratify their allies, and
yet preserve the semblance of an adherence to their ancient institutions, had
recourse to the flimsy subterfuge of investing Lysander with the real power of
admiral, under the nominal title of vice-admiral. This instance is selected from
among a multitude that might be cited to confirm the truth already advanced and
illustrated by domestic examples; which is, that nations pay little regard to
rules and maxims calculated in their very nature to run counter to the
necessities of society. Wise politicians will be cautious about fettering the
government with restrictions that cannot be observed, because they know that
every breach of the fundamental laws, though dictated by necessity, impairs that
sacred reverence which ought to be maintained in the breast of rulers towards
the constitution of a country, and forms a precedent for other breaches where
the same plea of necessity does not exist at all, or is less urgent and
palpable.
PUBLIUS
FEDERALIST No. 26
The Idea of Restraining the Legislative Authority in Regard to the Common
Defense Considered
For the Independent Journal.
Saturday, December 22, 1788
HAMILTON
To the People of the State of New York:
IT WAS a thing hardly to be expected that in a popular revolution the minds
of men should stop at that happy mean which marks the salutary boundary between
POWER and PRIVILEGE, and combines the energy of government with the security of
private rights. A failure in this delicate and important point is the great
source of the inconveniences we experience, and if we are not cautious to avoid
a repetition of the error, in our future attempts to rectify and ameliorate our
system, we may travel from one chimerical project to another; we may try change
after change; but we shall never be likely to make any material change for the
better.
2 The idea of restraining the legislative authority, in the means of providing
for the national defense, is one of those refinements which owe their origin to
a zeal for liberty more ardent than enlightened. We have seen, however, that it
has not had thus far an extensive prevalency; that even in this country, where
it made its first appearance, Pennsylvania and North Carolina are the only two
States by which it has been in any degree patronized; and that all the others
have refused to give it the least countenance; wisely judging that confidence
must be placed somewhere; that the necessity of doing it, is implied in the very
act of delegating power; and that it is better to hazard the abuse of that
confidence than to embarrass the government and endanger the public safety by
impolitic restrictions on the legislative authority. The opponents of the
proposed Constitution combat, in this respect, the general decision of America;
and instead of being taught by experience the propriety of correcting any
extremes into which we may have heretofore run, they appear disposed to conduct
us into others still more dangerous, and more extravagant. As if the tone of
government had been found too high, or too rigid, the doctrines they teach are
calculated to induce us to depress or to relax it, by expedients which, upon
other occasions, have been condemned or forborne. It may be affirmed without the
imputation of invective, that if the principles they inculcate, on various
points, could so far obtain as to become the popular creed, they would utterly
unfit the people of this country for any species of government whatever. But a
danger of this kind is not to be apprehended. The citizens of America have too
much discernment to be argued into anarchy. And I am much mistaken, if
experience has not wrought a deep and solemn conviction in the public mind, that
greater energy of government is essential to the welfare and prosperity of the
community.
3 It may not be amiss in this place concisely to remark the origin and progress
of the idea, which aims at the exclusion of military establishments in time of
peace. Though in speculative minds it may arise from a contemplation of the
nature and tendency of such institutions, fortified by the events that have
happened in other ages and countries, yet as a national sentiment, it must be
traced to those habits of thinking which we derive from the nation from whom the
inhabitants of these States have in general sprung.
4 In England, for a long time after the Norman Conquest, the authority of the
monarch was almost unlimited. Inroads were gradually made upon the prerogative,
in favor of liberty, first by the barons, and afterwards by the people, till the
greatest part of its most formidable pretensions became extinct. But it was not
till the revolution in 1688, which elevated the Prince of Orange to the throne
of Great Britain, that English liberty was completely triumphant. As incident to
the undefined power of making war, an acknowledged prerogative of the crown,
Charles II. had, by his own authority, kept on foot in time of peace a body of
5,000 regular troops. And this number James II. increased to 30,000; who were
paid out of his civil list. At the revolution, to abolish the exercise of so
dangerous an authority, it became an article of the Bill of Rights then framed,
that "the raising or keeping a standing army within the kingdom in time of
peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law."
5 In that kingdom, when the pulse of liberty was at its highest pitch, no
security against the danger of standing armies was thought requisite, beyond a
prohibition of their being raised or kept up by the mere authority of the
executive magistrate. The patriots, who effected that memorable revolution, were
too temperate, too wellinformed, to think of any restraint on the legislative
discretion. They were aware that a certain number of troops for guards and
garrisons were indispensable; that no precise bounds could be set to the
national exigencies; that a power equal to every possible contingency must exist
somewhere in the government: and that when they referred the exercise of that
power to the judgment of the legislature, they had arrived at the ultimate point
of precaution which was reconcilable with the safety of the community.
6 From the same source, the people of America may be said to have derived an
hereditary impression of danger to liberty, from standing armies in time of
peace. The circumstances of a revolution quickened the public sensibility on
every point connected with the security of popular rights, and in some instances
raise the warmth of our zeal beyond the degree which consisted with the due
temperature of the body politic. The attempts of two of the States to restrict
the authority of the legislature in the article of military establishments, are
of the number of these instances. The principles which had taught us to be
jealous of the power of an hereditary monarch were by an injudicious excess
extended to the representatives of the people in their popular assemblies. Even
in some of the States, where this error was not adopted, we find unnecessary
declarations that standing armies ought not to be kept up, in time of peace,
WITHOUT THE CONSENT OF THE LEGISLATURE. I call them unnecessary, because the
reason which had introduced a similar provision into the English Bill of Rights
is not applicable to any of the State constitutions. The power of raising armies
at all, under those constitutions, can by no construction be deemed to reside
anywhere else, than in the legislatures themselves; and it was superfluous, if
not absurd, to declare that a matter should not be done without the consent of a
body, which alone had the power of doing it. Accordingly, in some of these
constitutions, and among others, in that of this State of New York, which has
been justly celebrated, both in Europe and America, as one of the best of the
forms of government established in this country, there is a total silence upon
the subject.
7 It is remarkable, that even in the two States which seem to have meditated an
interdiction of military establishments in time of peace, the mode of expression
made use of is rather cautionary than prohibitory. It is not said, that standing
armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time of
peace. This ambiguity of terms appears to have been the result of a conflict
between jealousy and conviction; between the desire of excluding such
establishments at all events, and the persuasion that an absolute exclusion
would be unwise and unsafe.
8 Can it be doubted that such a provision, whenever the situation of public
affairs was understood to require a departure from it, would be interpreted by
the legislature into a mere admonition, and would be made to yield to the
necessities or supposed necessities of the State? Let the fact already
mentioned, with respect to Pennsylvania, decide. What then (it may be asked) is
the use of such a provision, if it cease to operate the moment there is an
inclination to disregard it?
9 Let us examine whether there be any comparison, in point of efficacy, between
the provision alluded to and that which is contained in the new Constitution,
for restraining the appropriations of money for military purposes to the period
of two years. The former, by aiming at too much, is calculated to effect
nothing; the latter, by steering clear of an imprudent extreme, and by being
perfectly compatible with a proper provision for the exigencies of the nation,
will have a salutary and powerful operation.
10 The legislature of the United States will be OBLIGED, by this provision, once
at least in every two years, to deliberate upon the propriety of keeping a
military force on foot; to come to a new resolution on the point; and to declare
their sense of the matter, by a formal vote in the face of their constituents.
They are not AT LIBERTY to vest in the executive department permanent funds for
the support of an army, if they were even incautious enough to be willing to
repose in it so improper a confidence. As the spirit of party, in different
degrees, must be expected to infect all political bodies, there will be, no
doubt, persons in the national legislature willing enough to arraign the
measures and criminate the views of the majority. The provision for the support
of a military force will always be a favorable topic for declamation. As often
as the question comes forward, the public attention will be roused and attracted
to the subject, by the party in opposition; and if the majority should be really
disposed to exceed the proper limits, the community will be warned of the
danger, and will have an opportunity of taking measures to guard against it.
Independent of parties in the national legislature itself, as often as the
period of discussion arrived, the State legislatures, who will always be not
only vigilant but suspicious and jealous guardians of the rights of the citizens
against encroachments from the federal government, will constantly have their
attention awake to the conduct of the national rulers, and will be ready enough,
if any thing improper appears, to sound the alarm to the people, and not only to
be the VOICE, but, if necessary, the ARM of their discontent.
11 Schemes to subvert the liberties of a great community REQUIRE TIME to mature
them for execution. An army, so large as seriously to menace those liberties,
could only be formed by progressive augmentations; which would suppose, not
merely a temporary combination between the legislature and executive, but a
continued conspiracy for a series of time. Is it probable that such a
combination would exist at all? Is it probable that it would be persevered in,
and transmitted along through all the successive variations in a representative
body, which biennial elections would naturally produce in both houses? Is it
presumable, that every man, the instant he took his seat in the national Senate
or House of Representatives, would commence a traitor to his constituents and to
his country? Can it be supposed that there would not be found one man,
discerning enough to detect so atrocious a conspiracy, or bold or honest enough
to apprise his constituents of their danger? If such presumptions can fairly be
made, there ought at once to be an end of all delegated authority. The people
should resolve to recall all the powers they have heretofore parted with out of
their own hands, and to divide themselves into as many States as there are
counties, in order that they may be able to manage their own concerns in person.
12 If such suppositions could even be reasonably made, still the concealment of
the design, for any duration, would be impracticable. It would be announced, by
the very circumstance of augmenting the army to so great an extent in time of
profound peace. What colorable reason could be assigned, in a country so
situated, for such vast augmentations of the military force? It is impossible
that the people could be long deceived; and the destruction of the project, and
of the projectors, would quickly follow the discovery.
13 It has been said that the provision which limits the appropriation of money
for the support of an army to the period of two years would be unavailing,
because the Executive, when once possessed of a force large enough to awe the
people into submission, would find resources in that very force sufficient to
enable him to dispense with supplies from the acts of the legislature. But the
question again recurs, upon what pretense could he be put in possession of a
force of that magnitude in time of peace? If we suppose it to have been created
in consequence of some domestic insurrection or foreign war, then it becomes a
case not within the principles of the objection; for this is levelled against
the power of keeping up troops in time of peace. Few persons will be so
visionary as seriously to contend that military forces ought not to be raised to
quell a rebellion or resist an invasion; and if the defense of the community
under such circumstances should make it necessary to have an army so numerous as
to hazard its liberty, this is one of those calamaties for which there is
neither preventative nor cure. It cannot be provided against by any possible
form of government; it might even result from a simple league offensive and
defensive, if it should ever be necessary for the confederates or allies to form
an army for common defense.
14 But it is an evil infinitely less likely to attend us in a united than in a
disunited state; nay, it may be safely asserted that it is an evil altogether
unlikely to attend us in the latter situation. It is not easy to conceive a
possibility that dangers so formidable can assail the whole Union, as to demand
a force considerable enough to place our liberties in the least jeopardy,
especially if we take into our view the aid to be derived from the militia,
which ought always to be counted upon as a valuable and powerful auxiliary. But
in a state of disunion (as has been fully shown in another place), the contrary
of this supposition would become not only probable, but almost unavoidable.
PUBLIUS
FEDERALIST No. 27
The Same Subject Continued (The Idea of Restraining the Legislative Authority
in Regard to the Common Defense Considered) From the New York Packet.
Tuesday,
December 25, 1787.
HAMILTON
To the People of the State of New York:
IT HAS been urged, in different shapes, that a Constitution of the kind
proposed by the convention cannot operate without the aid of a military force to
execute its laws. This, however, like most other things that have been alleged
on that side, rests on mere general assertion, unsupported by any precise or
intelligible designation of the reasons upon which it is founded. As far as I
have been able to divine the latent meaning of the objectors, it seems to
originate in a presupposition that the people will be disinclined to the
exercise of federal authority in any matter of an internal nature. Waiving any
exception that might be taken to the inaccuracy or inexplicitness of the
distinction between internal and external, let us inquire what ground there is
to presuppose that disinclination in the people. Unless we presume at the same
time that the powers of the general government will be worse administered than
those of the State government, there seems to be no room for the presumption of
ill-will, disaffection, or opposition in the people. I believe it may be laid
down as a general rule that their confidence in and obedience to a government
will commonly be proportioned to the goodness or badness of its administration.
It must be admitted that there are exceptions to this rule; but these exceptions
depend so entirely on accidental causes, that they cannot be considered as
having any relation to the intrinsic merits or demerits of a constitution. These
can only be judged of by general principles and maxims.
2 Various reasons have been suggested, in the course of these papers, to induce
a probability that the general government will be better administered than the
particular governments; the principal of which reasons are that the extension of
the spheres of election will present a greater option, or latitude of choice, to
the people; that through the medium of the State legislatures which are select
bodies of men, and which are to appoint the members of the national Senate there
is reason to expect that this branch will generally be composed with peculiar
care and judgment; that these circumstances promise greater knowledge and more
extensive information in the national councils, and that they will be less apt
to be tainted by the spirit of faction, and more out of the reach of those
occasional ill-humors, or temporary prejudices and propensities, which, in
smaller societies, frequently contaminate the public councils, beget injustice
and oppression of a part of the community, and engender schemes which, though
they gratify a momentary inclination or desire, terminate in general distress,
dissatisfaction, and disgust. Several additional reasons of considerable force,
to fortify that probability, will occur when we come to survey, with a more
critical eye, the interior structure of the edifice which we are invited to
erect. It will be sufficient here to remark, that until satisfactory reasons can
be assigned to justify an opinion, that the federal government is likely to be
administered in such a manner as to render it odious or contemptible to the
people, there can be no reasonable foundation for the supposition that the laws
of the Union will meet with any greater obstruction from them, or will stand in
need of any other methods to enforce their execution, than the laws of the
particular members.
3 The hope of impunity is a strong incitement to sedition; the dread of
punishment, a proportionably strong discouragement to it. Will not the
government of the Union, which, if possessed of a due degree of power, can call
to its aid the collective resources of the whole Confederacy, be more likely to
repress the FORMER sentiment and to inspire the LATTER, than that of a single
State, which can only command the resources within itself? A turbulent faction
in a State may easily suppose itself able to contend with the friends to the
government in that State; but it can hardly be so infatuated as to imagine
itself a match for the combined efforts of the Union. If this reflection be
just, there is less danger of resistance from irregular combinations of
individuals to the authority of the Confederacy than to that of a single member.
4 I will, in this place, hazard an observation, which will not be the less just
because to some it may appear new; which is, that the more the operations of the
national authority are intermingled in the ordinary exercise of government, the
more the citizens are accustomed to meet with it in the common occurrences of
their political life, the more it is familiarized to their sight and to their
feelings, the further it enters into those objects which touch the most sensible
chords and put in motion the most active springs of the human heart, the greater
will be the probability that it will conciliate the respect and attachment of
the community. Man is very much a creature of habit. A thing that rarely strikes
his senses will generally have but little influence upon his mind. A government
continually at a distance and out of sight can hardly be expected to interest
the sensations of the people. The inference is, that the authority of the Union,
and the affections of the citizens towards it, will be strengthened, rather than
weakened, by its extension to what are called matters of internal concern; and
will have less occasion to recur to force, in proportion to the familiarity and
comprehensiveness of its agency. The more it circulates through those channls
and currents in which the passions of mankind naturally flow, the less will it
require the aid of the violent and perilous expedients of compulsion.
5 One thing, at all events, must be evident, that a government like the one
proposed would bid much fairer to avoid the necessity of using force, than that
species of league contend for by most of its opponents; the authority of which
should only operate upon the States in their political or collective capacities.
It has been shown that in such a Confederacy there can be no sanction for the
laws but force; that frequent delinquencies in the members are the natural
offspring of the very frame of the government; and that as often as these
happen, they can only be redressed, if at all, by war and violence.
6 The plan reported by the convention, by extending the authority of the
federal head to the individual citizens of the several States, will enable the
government to employ the ordinary magistracy of each, in the execution of its
laws. It is easy to perceive that this will tend to destroy, in the common
apprehension, all distinction between the sources from which they might proceed;
and will give the federal government the same advantage for securing a due
obedience to its authority which is enjoyed by the government of each State, in
addition to the influence on public opinion which will result from the important
consideration of its having power to call to its assistance and support the
resources of the whole Union. It merits particular attention in this place, that
the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its
jurisdiction, will become the SUPREME LAW of the land; to the observance of
which all officers, legislative, executive, and judicial, in each State, will be
bound by the sanctity of an oath. Thus the legislatures, courts, and
magistrates, of the respective members, will be incorporated into the operations
of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY
EXTENDS; and will be rendered auxiliary to the enforcement of its laws.[1] Any
man who will pursue, by his own reflections, the consequences of this situation,
will perceive that there is good ground to calculate upon a regular and
peaceable execution of the laws of the Union, if its powers are administered
with a common share of prudence. If we will arbitrarily suppose the contrary, we
may deduce any inferences we please from the supposition; for it is certainly
possible, by an injudicious exercise of the authorities of the best government
that ever was, or ever can be instituted, to provoke and precipitate the people
into the wildest excesses. But though the adversaries of the proposed
Constitution should presume that the national rulers would be insensible to the
motives of public good, or to the obligations of duty, I would still ask them
how the interests of ambition, or the views of encroachment, can be promoted by
such a conduct?
PUBLIUS
1. The sophistry which has been employed to show that this will tend to the
destruction of the State governments, will, in its will, in its proper place, be
fully detected.
FEDERALIST No. 28
The Same Subject Continued (The Idea of Restraining the Legislative Authority
in Regard to the Common Defense Considered) For the Independent Journal.
Wednesday, December 26, 1787
HAMILTON
To the People of the State of New York:
THAT there may happen cases in which the national government may be
necessitated to resort to force, cannot be denied. Our own experience has
corroborated the lessons taught by the examples of other nations; that
emergencies of this sort will sometimes arise in all societies, however
constituted; that seditions and insurrections are, unhappily, maladies as
inseparable from the body politic as tumors and eruptions from the natural body;
that the idea of governing at all times by the simple force of law (which we
have been told is the only admissible principle of republican government), has
no place but in the reveries of those political doctors whose sagacity disdains
the admonitions of experimental instruction.
2 Should such emergencies at any time happen under the national government,
there could be no remedy but force. The means to be employed must be
proportioned to the extent of the mischief. If it should be a slight commotion
in a small part of a State, the militia of the residue would be adequate to its
suppression; and the national presumption is that they would be ready to do
their duty. An insurrection, whatever may be its immediate cause, eventually
endangers all government. Regard to the public peace, if not to the rights of
the Union, would engage the citizens to whom the contagion had not communicated
itself to oppose the insurgents; and if the general government should be found
in practice conducive to the prosperity and felicity of the people, it were
irrational to believe that they would be disinclined to its support.
3 If, on the contrary, the insurrection should pervade a whole State, or a
principal part of it, the employment of a different kind of force might become
unavoidable. It appears that Massachusetts found it necessary to raise troops
for repressing the disorders within that State; that Pennsylvania, from the mere
apprehension of commotions among a part of her citizens, has thought proper to
have recourse to the same measure. Suppose the State of New York had been
inclined to re-establish her lost jurisdiction over the inhabitants of Vermont,
could she have hoped for success in such an enterprise from the efforts of the
militia alone? Would she not have been compelled to raise and to maintain a more
regular force for the execution of her design? If it must then be admitted that
the necessity of recurring to a force different from the militia, in cases of
this extraordinary nature, is applicable to the State governments themselves,
why should the possibility, that the national government might be under a like
necessity, in similar extremities, be made an objection to its existence? Is it
not surprising that men who declare an attachment to the Union in the abstract,
should urge as an objection to the proposed Constitution what applies with
tenfold weight to the plan for which they contend; and what, as far as it has
any foundation in truth, is an inevitable consequence of civil society upon an
enlarged scale? Who would not prefer that possibility to the unceasing
agitations and frequent revolutions which are the continual scourges of petty
republics?
4 Let us pursue this examination in another light. Suppose, in lieu of one
general system, two, or three, or even four Confederacies were to be formed,
would not the same difficulty oppose itself to the operations of either of these
Confederacies? Would not each of them be exposed to the same casualties; and
when these happened, be obliged to have recourse to the same expedients for
upholding its authority which are objected to in a government for all the
States? Would the militia, in this supposition, be more ready or more able to
support the federal authority than in the case of a general union? All candid
and intelligent men must, upon due consideration, acknowledge that the principle
of the objection is equally applicable to either of the two cases; and that
whether we have one government for all the States, or different governments for
different parcels of them, or even if there should be an entire separation of
the States, there might sometimes be a necessity to make use of a force
constituted differently from the militia, to preserve the peace of the community
and to maintain the just authority of the laws against those violent invasions
of them which amount to insurrections and rebellions.
5 Independent of all other reasonings upon the subject, it is a full answer to
those who require a more peremptory provision against military establishments in
time of peace, to say that the whole power of the proposed government is to be
in the hands of the representatives of the people. This is the essential, and,
after all, only efficacious security for the rights and privileges of the
people, which is attainable in civil society.[1]
6 If the representatives of the people betray their constituents, there is then
no resource left but in the exertion of that original right of self-defense
which is paramount to all positive forms of government, and which against the
usurpations of the national rulers, may be exerted with infinitely better
prospect of success than against those of the rulers of an individual state. In
a single state, if the persons intrusted with supreme power become usurpers, the
different parcels, subdivisions, or districts of which it consists, having no
distinct government in each, can take no regular measures for defense. The
citizens must rush tumultuously to arms, without concert, without system,
without resource; except in their courage and despair. The usurpers, clothed
with the forms of legal authority, can too often crush the opposition in embryo.
The smaller the extent of the territory, the more difficult will it be for the
people to form a regular or systematic plan of opposition, and the more easy
will it be to defeat their early efforts. Intelligence can be more speedily
obtained of their preparations and movements, and the military force in the
possession of the usurpers can be more rapidly directed against the part where
the opposition has begun. In this situation there must be a peculiar coincidence
of circumstances to insure success to the popular resistance.
7 The obstacles to usurpation and the facilities of resistance increase with
the increased extent of the state, provided the citizens understand their rights
and are disposed to defend them. The natural strength of the people in a large
community, in proportion to the artificial strength of the government, is
greater than in a small, and of course more competent to a struggle with the
attempts of the government to establish a tyranny. But in a confederacy the
people, without exaggeration, may be said to be entirely the masters of their
own fate. Power being almost always the rival of power, the general government
will at all times stand ready to check the usurpations of the state governments,
and these will have the same disposition towards the general government. The
people, by throwing themselves into either scale, will infallibly make it
preponderate. If their rights are invaded by either, they can make use of the
other as the instrument of redress. How wise will it be in them by cherishing
the union to preserve to themselves an advantage which can never be too highly
prized!
8 It may safely be received as an axiom in our political system, that the State
governments will, in all possible contingencies, afford complete security
against invasions of the public liberty by the national authority. Projects of
usurpation cannot be masked under pretenses so likely to escape the penetration
of select bodies of men, as of the people at large. The legislatures will have
better means of information. They can discover the danger at a distance; and
possessing all the organs of civil power, and the confidence of the people, they
can at once adopt a regular plan of opposition, in which they can combine all
the resources of the community. They can readily communicate with each other in
the different States, and unite their common forces for the protection of their
common liberty.
9 The great extent of the country is a further security. We have already
experienced its utility against the attacks of a foreign power. And it would
have precisely the same effect against the enterprises of ambitious rulers in
the national councils. If the federal army should be able to quell the
resistance of one State, the distant States would have it in their power to make
head with fresh forces. The advantages obtained in one place must be abandoned
to subdue the opposition in others; and the moment the part which had been
reduced to submission was left to itself, its efforts would be renewed, and its
resistance revive.
10 We should recollect that the extent of the military force must, at all
events, be regulated by the resources of the country. For a long time to come,
it will not be possible to maintain a large army; and as the means of doing this
increase, the population and natural strength of the community will
proportionably increase. When will the time arrive that the federal government
can raise and maintain an army capable of erecting a despotism over the great
body of the people of an immense empire, who are in a situation, through the
medium of their State governments, to take measures for their own defense, with
all the celerity, regularity, and system of independent nations? The
apprehension may be considered as a disease, for which there can be found no
cure in the resources of argument and reasoning.
PUBLIUS
1. Its full efficacy will be examined hereafter.
FEDERALIST No. 29
Concerning the Militia From the New York Packet.
Wednesday, January 9, 1788
HAMILTON
To the People of the State of New York:
THE power of regulating the militia, and of commanding its services in times
of insurrection and invasion are natural incidents to the duties of
superintending the common defense, and of watching over the internal peace of
the Confederacy.
2 It requires no skill in the science of war to discern that uniformity in the
organization and discipline of the militia would be attended with the most
beneficial effects, whenever they were called into service for the public
defense. It would enable them to discharge the duties of the camp and of the
field with mutual intelligence and concert an advantage of peculiar moment in
the operations of an army; and it would fit them much sooner to acquire the
degree of proficiency in military functions which would be essential to their
usefulness. This desirable uniformity can only be accomplished by confiding the
regulation of the militia to the direction of the national authority. It is,
therefore, with the most evident propriety, that the plan of the convention
proposes to empower the Union "to provide for organizing, arming, and
disciplining the militia, and for governing such part of them as may be employed
in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE
APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING
TO THE DISCIPLINE PRESCRIBED BY CONGRESS."
3 Of the different grounds which have been taken in opposition to the plan of
the convention, there is none that was so little to have been expected, or is so
untenable in itself, as the one from which this particular provision has been
attacked. If a well-regulated militia be the most natural defense of a free
country, it ought certainly to be under the regulation and at the disposal of
that body which is constituted the guardian of the national security. If
standing armies are dangerous to liberty, an efficacious power over the militia,
in the body to whose care the protection of the State is committed, ought, as
far as possible, to take away the inducement and the pretext to such unfriendly
institutions. If the federal government can command the aid of the militia in
those emergencies which call for the military arm in support of the civil
magistrate, it can the better dispense with the employment of a different kind
of force. If it cannot avail itself of the former, it will be obliged to recur
to the latter. To render an army unnecessary, will be a more certain method of
preventing its existence than a thousand prohibitions upon paper.
4 In order to cast an odium upon the power of calling forth the militia to
execute the laws of the Union, it has been remarked that there is nowhere any
provision in the proposed Constitution for calling out the POSSE COMITATUS, to
assist the magistrate in the execution of his duty, whence it has been inferred,
that military force was intended to be his only auxiliary. There is a striking
incoherence in the objections which have appeared, and sometimes even from the
same quarter, not much calculated to inspire a very favorable opinion of the
sincerity or fair dealing of their authors. The same persons who tell us in one
breath, that the powers of the federal government will be despotic and
unlimited, inform us in the next, that it has not authority sufficient even to
call out the POSSE COMITATUS. The latter, fortunately, is as much short of the
truth as the former exceeds it. It would be as absurd to doubt, that a right to
pass all laws NECESSARY AND PROPER to execute its declared powers, would include
that of requiring the assistance of the citizens to the officers who may be
intrusted with the execution of those laws, as it would be to believe, that a
right to enact laws necessary and proper for the imposition and collection of
taxes would involve that of varying the rules of descent and of the alienation
of landed property, or of abolishing the trial by jury in cases relating to it.
It being therefore evident that the supposition of a want of power to require
the aid of the POSSE COMITATUS is entirely destitute of color, it will follow,
that the conclusion which has been drawn from it, in its application to the
authority of the federal government over the militia, is as uncandid as it is
illogical. What reason could there be to infer, that force was intended to be
the sole instrument of authority, merely because there is a power to make use of
it when necessary? What shall we think of the motives which could induce men of
sense to reason in this manner? How shall we prevent a conflict between charity
and conviction?
5 By a curious refinement upon the spirit of republican jealousy, we are even
taught to apprehend danger from the militia itself, in the hands of the federal
government. It is observed that select corps may be formed, composed of the
young and ardent, who may be rendered subservient to the views of arbitrary
power. What plan for the regulation of the militia may be pursued by the
national government, is impossible to be foreseen. But so far from viewing the
matter in the same light with those who object to select corps as dangerous,
were the Constitution ratified, and were I to deliver my sentiments to a member
of the federal legislature from this State on the subject of a militia
establishment, I should hold to him, in substance, the following discourse:
6 "The project of disciplining all the militia of the United States is as
futile as it would be injurious, if it were capable of being carried into
execution. A tolerable expertness in military movements is a business that
requires time and practice. It is not a day, or even a week, that will suffice
for the attainment of it. To oblige the great body of the yeomanry, and of the
other classes of the citizens, to be under arms for the purpose of going through
military exercises and evolutions, as often as might be necessary to acquire the
degree of perfection which would entitle them to the character of a
well-regulated militia, would be a real grievance to the people, and a serious
public inconvenience and loss. It would form an annual deduction from the
productive labor of the country, to an amount which, calculating upon the
present numbers of the people, would not fall far short of the whole expense of
the civil establishments of all the States. To attempt a thing which would
abridge the mass of labor and industry to so considerable an extent, would be
unwise: and the experiment, if made, could not succeed, because it would not
long be endured. Little more can reasonably be aimed at, with respect to the
people at large, than to have them properly armed and equipped; and in order to
see that this be not neglected, it will be necessary to assemble them once or
twice in the course of a year.
7 "But though the scheme of disciplining the whole nation must be
abandoned as mischievous or impracticable; yet it is a matter of the utmost
importance that a well-digested plan should, as soon as possible, be adopted for
the proper establishment of the militia. The attention of the government ought
particularly to be directed to the formation of a select corps of moderate
extent, upon such principles as will really fit them for service in case of
need. By thus circumscribing the plan, it will be possible to have an excellent
body of well-trained militia, ready to take the field whenever the defense of
the State shall require it. This will not only lessen the call for military
establishments, but if circumstances should at any time oblige the government to
form an army of any magnitude that army can never be formidable to the liberties
of the people while there is a large body of citizens, little, if at all,
inferior to them in discipline and the use of arms, who stand ready to defend
their own rights and those of their fellow-citizens. This appears to me the only
substitute that can be devised for a standing army, and the best possible
security against it, if it should exist."
8 Thus differently from the adversaries of the proposed Constitution should I
reason on the same subject, deducing arguments of safety from the very sources
which they represent as fraught with danger and perdition. But how the national
legislature may reason on the point, is a thing which neither they nor I can
foresee.
9 There is something so far-fetched and so extravagant in the idea of danger to
liberty from the militia, that one is at a loss whether to treat it with gravity
or with raillery; whether to consider it as a mere trial of skill, like the
paradoxes of rhetoricians; as a disingenuous artifice to instil prejudices at
any price; or as the serious offspring of political fanaticism. Where in the
name of common-sense, are our fears to end if we may not trust our sons, our
brothers, our neighbors, our fellow-citizens? What shadow of danger can there be
from men who are daily mingling with the rest of their countrymen and who
participate with them in the same feelings, sentiments, habits and interests?
What reasonable cause of apprehension can be inferred from a power in the Union
to prescribe regulations for the militia, and to command its services when
necessary, while the particular States are to have the SOLE AND EXCLUSIVE
APPOINTMENT OF THE OFFICERS? If it were possible seriously to indulge a jealousy
of the militia upon any conceivable establishment under the federal government,
the circumstance of the officers being in the appointment of the States ought at
once to extinguish it. There can be no doubt that this circumstance will always
secure to them a preponderating influence over the militia.
10 In reading many of the publications against the Constitution, a man is apt to
imagine that he is perusing some ill-written tale or romance, which instead of
natural and agreeable images, exhibits to the mind nothing but frightful and
distorted shapes --
"Gorgons, hydras, and chimeras dire";
11 discoloring and disfiguring whatever it represents, and transforming
everything it touches into a monster.
12 A sample of this is to be observed in the exaggerated and improbable
suggestions which have taken place respecting the power of calling for the
services of the militia. That of New Hampshire is to be marched to Georgia, of
Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake
Champlain. Nay, the debts due to the French and Dutch are to be paid in
militiamen instead of louis d'ors and ducats. At one moment there is to be a
large army to lay prostrate the liberties of the people; at another moment the
militia of Virginia are to be dragged from their homes five or six hundred
miles, to tame the republican contumacy of Massachusetts; and that of
Massachusetts is to be transported an equal distance to subdue the refractory
haughtiness of the aristocratic Virginians. Do the persons who rave at this rate
imagine that their art or their eloquence can impose any conceits or absurdities
upon the people of America for infallible truths?
13 If there should be an army to be made use of as the engine of despotism, what
need of the militia? If there should be no army, whither would the militia,
irritated by being called upon to undertake a distant and hopeless expedition,
for the purpose of riveting the chains of slavery upon a part of their
countrymen, direct their course, but to the seat of the tyrants, who had
meditated so foolish as well as so wicked a project, to crush them in their
imagined intrenchments of power, and to make them an example of the just
vengeance of an abused and incensed people? Is this the way in which usurpers
stride to dominion over a numerous and enlightened nation? Do they begin by
exciting the detestation of the very instruments of their intended usurpations?
Do they usually commence their career by wanton and disgustful acts of power,
calculated to answer no end, but to draw upon themselves universal hatred and
execration? Are suppositions of this sort the sober admonitions of discerning
patriots to a discerning people? Or are they the inflammatory ravings of
incendiaries or distempered enthusiasts? If we were even to suppose the national
rulers actuated by the most ungovernable ambition, it is impossible to believe
that they would employ such preposterous means to accomplish their designs.
14 In times of insurrection, or invasion, it would be natural and proper that
the militia of a neighboring State should be marched into another, to resist a
common enemy, or to guard the republic against the violence of faction or
sedition. This was frequently the case, in respect to the first object, in the
course of the late war; and this mutual succor is, indeed, a principal end of
our political association. If the power of affording it be placed under the
direction of the Union, there will be no danger of a supine and listless
inattention to the dangers of a neighbor, till its near approach had superadded
the incitements of self-preservation to the too feeble impulses of duty and
sympathy.
PUBLIUS
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