Federalist Papers No. 18 – 34

 

FEDERALIST No. 18

The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
For the Independent Journal.

HAMILTON AND MADISON

To the People of the State of New York:
AMONG the confederacies of antiquity, the most considerable was
that of the Grecian republics, associated under the Amphictyonic
council. From the best accounts transmitted of this celebrated
institution, it bore a very instructive analogy to the present
Confederation of the American States.
The members retained the character of independent and sovereign
states, and had equal votes in the federal council. This council
had a general authority to propose and resolve whatever it judged
necessary for the common welfare of Greece; to declare and carry on
war; to decide, in the last resort, all controversies between the
members; to fine the aggressing party; to employ the whole force
of the confederacy against the disobedient; to admit new members.
The Amphictyons were the guardians of religion, and of the immense
riches belonging to the temple of Delphos, where they had the right
of jurisdiction in controversies between the inhabitants and those
who came to consult the oracle. As a further provision for the
efficacy of the federal powers, they took an oath mutually to defend
and protect the united cities, to punish the violators of this oath,
and to inflict vengeance on sacrilegious despoilers of the temple.
In theory, and upon paper, this apparatus of powers seems amply
sufficient for all general purposes. In several material instances,
they exceed the powers enumerated in the articles of confederation.
The Amphictyons had in their hands the superstition of the times,
one of the principal engines by which government was then
maintained; they had a declared authority to use coercion against
refractory cities, and were bound by oath to exert this authority on
the necessary occasions.
Very different, nevertheless, was the experiment from the theory.
The powers, like those of the present Congress, were administered
by deputies appointed wholly by the cities in their political
capacities; and exercised over them in the same capacities. Hence
the weakness, the disorders, and finally the destruction of the
confederacy. The more powerful members, instead of being kept in
awe and subordination, tyrannized successively over all the rest.
Athens, as we learn from Demosthenes, was the arbiter of Greece
seventy-three years. The Lacedaemonians next governed it
twenty-nine years; at a subsequent period, after the battle of
Leuctra, the Thebans had their turn of domination.
It happened but too often, according to Plutarch, that the
deputies of the strongest cities awed and corrupted those of the
weaker; and that judgment went in favor of the most powerful party.
Even in the midst of defensive and dangerous wars with Persia
and Macedon, the members never acted in concert, and were, more or
fewer of them, eternally the dupes or the hirelings of the common
enemy. The intervals of foreign war were filled up by domestic
vicissitudes convulsions, and carnage.
After the conclusion of the war with Xerxes, it appears that the
Lacedaemonians required that a number of the cities should be turned
out of the confederacy for the unfaithful part they had acted. The
Athenians, finding that the Lacedaemonians would lose fewer
partisans by such a measure than themselves, and would become
masters of the public deliberations, vigorously opposed and defeated
the attempt. This piece of history proves at once the inefficiency
of the union, the ambition and jealousy of its most powerful
members, and the dependent and degraded condition of the rest. The
smaller members, though entitled by the theory of their system to
revolve in equal pride and majesty around the common center, had
become, in fact, satellites of the orbs of primary magnitude.
Had the Greeks, says the Abbe Milot, been as wise as they were
courageous, they would have been admonished by experience of the
necessity of a closer union, and would have availed themselves of
the peace which followed their success against the Persian arms, to
establish such a reformation. Instead of this obvious policy,
Athens and Sparta, inflated with the victories and the glory they
had acquired, became first rivals and then enemies; and did each
other infinitely more mischief than they had suffered from Xerxes.
Their mutual jealousies, fears, hatreds, and injuries ended in the
celebrated Peloponnesian war; which itself ended in the ruin and
slavery of the Athenians who had begun it.
As a weak government, when not at war, is ever agitated by
internal dissentions, so these never fail to bring on fresh
calamities from abroad. The Phocians having ploughed up some
consecrated ground belonging to the temple of Apollo, the
Amphictyonic council, according to the superstition of the age,
imposed a fine on the sacrilegious offenders. The Phocians, being
abetted by Athens and Sparta, refused to submit to the decree. The
Thebans, with others of the cities, undertook to maintain the
authority of the Amphictyons, and to avenge the violated god. The
latter, being the weaker party, invited the assistance of Philip of
Macedon, who had secretly fostered the contest. Philip gladly
seized the opportunity of executing the designs he had long planned
against the liberties of Greece. By his intrigues and bribes he won
over to his interests the popular leaders of several cities; by
their influence and votes, gained admission into the Amphictyonic
council; and by his arts and his arms, made himself master of the
confederacy.
Such were the consequences of the fallacious principle on which
this interesting establishment was founded. Had Greece, says a
judicious observer on her fate, been united by a stricter
confederation, and persevered in her union, she would never have
worn the chains of Macedon; and might have proved a barrier to the
vast projects of Rome.
The Achaean league, as it is called, was another society of
Grecian republics, which supplies us with valuable instruction.
The Union here was far more intimate, and its organization much
wiser, than in the preceding instance. It will accordingly appear,
that though not exempt from a similar catastrophe, it by no means
equally deserved it.
The cities composing this league retained their municipal
jurisdiction, appointed their own officers, and enjoyed a perfect
equality. The senate, in which they were represented, had the sole
and exclusive right of peace and war; of sending and receiving
ambassadors; of entering into treaties and alliances; of
appointing a chief magistrate or praetor, as he was called, who
commanded their armies, and who, with the advice and consent of ten
of the senators, not only administered the government in the recess
of the senate, but had a great share in its deliberations, when
assembled. According to the primitive constitution, there were two
praetors associated in the administration; but on trial a single
one was preferred.
It appears that the cities had all the same laws and customs,
the same weights and measures, and the same money. But how far this
effect proceeded from the authority of the federal council is left
in uncertainty. It is said only that the cities were in a manner
compelled to receive the same laws and usages. When Lacedaemon was
brought into the league by Philopoemen, it was attended with an
abolition of the institutions and laws of Lycurgus, and an adoption
of those of the Achaeans. The Amphictyonic confederacy, of which
she had been a member, left her in the full exercise of her
government and her legislation. This circumstance alone proves a
very material difference in the genius of the two systems.
It is much to be regretted that such imperfect monuments remain
of this curious political fabric. Could its interior structure and
regular operation be ascertained, it is probable that more light
would be thrown by it on the science of federal government, than by
any of the like experiments with which we are acquainted.
One important fact seems to be witnessed by all the historians
who take notice of Achaean affairs. It is, that as well after the
renovation of the league by Aratus, as before its dissolution by the
arts of Macedon, there was infinitely more of moderation and justice
in the administration of its government, and less of violence and
sedition in the people, than were to be found in any of the cities
exercising SINGLY all the prerogatives of sovereignty. The Abbe
Mably, in his observations on Greece, says that the popular
government, which was so tempestuous elsewhere, caused no disorders
in the members of the Achaean republic, BECAUSE IT WAS THERE
TEMPERED BY THE GENERAL AUTHORITY AND LAWS OF THE CONFEDERACY.
We are not to conclude too hastily, however, that faction did
not, in a certain degree, agitate the particular cities; much less
that a due subordination and harmony reigned in the general system.
The contrary is sufficiently displayed in the vicissitudes and fate
of the republic.
Whilst the Amphictyonic confederacy remained, that of the
Achaeans, which comprehended the less important cities only, made
little figure on the theatre of Greece. When the former became a
victim to Macedon, the latter was spared by the policy of Philip and
Alexander. Under the successors of these princes, however, a
different policy prevailed. The arts of division were practiced
among the Achaeans. Each city was seduced into a separate interest;
the union was dissolved. Some of the cities fell under the tyranny
of Macedonian garrisons; others under that of usurpers springing
out of their own confusions. Shame and oppression erelong awaken
their love of liberty. A few cities reunited. Their example was
followed by others, as opportunities were found of cutting off their
tyrants. The league soon embraced almost the whole Peloponnesus.
Macedon saw its progress; but was hindered by internal dissensions
from stopping it. All Greece caught the enthusiasm and seemed ready
to unite in one confederacy, when the jealousy and envy in Sparta
and Athens, of the rising glory of the Achaeans, threw a fatal damp
on the enterprise. The dread of the Macedonian power induced the
league to court the alliance of the Kings of Egypt and Syria, who,
as successors of Alexander, were rivals of the king of Macedon.
This policy was defeated by Cleomenes, king of Sparta, who was led
by his ambition to make an unprovoked attack on his neighbors, the
Achaeans, and who, as an enemy to Macedon, had interest enough with
the Egyptian and Syrian princes to effect a breach of their
engagements with the league.
The Achaeans were now reduced to the dilemma of submitting to
Cleomenes, or of supplicating the aid of Macedon, its former
oppressor. The latter expedient was adopted. The contests of the
Greeks always afforded a pleasing opportunity to that powerful
neighbor of intermeddling in their affairs. A Macedonian army
quickly appeared. Cleomenes was vanquished. The Achaeans soon
experienced, as often happens, that a victorious and powerful ally
is but another name for a master. All that their most abject
compliances could obtain from him was a toleration of the exercise
of their laws. Philip, who was now on the throne of Macedon, soon
provoked by his tyrannies, fresh combinations among the Greeks. The
Achaeans, though weakenened by internal dissensions and by the
revolt of Messene, one of its members, being joined by the AEtolians
and Athenians, erected the standard of opposition. Finding
themselves, though thus supported, unequal to the undertaking, they
once more had recourse to the dangerous expedient of introducing the
succor of foreign arms. The Romans, to whom the invitation was
made, eagerly embraced it. Philip was conquered; Macedon subdued.
A new crisis ensued to the league. Dissensions broke out among it
members. These the Romans fostered. Callicrates and other popular
leaders became mercenary instruments for inveigling their countrymen.
The more effectually to nourish discord and disorder the Romans
had, to the astonishment of those who confided in their sincerity,
already proclaimed universal liberty1 throughout Greece. With
the same insidious views, they now seduced the members from the
league, by representing to their pride the violation it committed on
their sovereignty. By these arts this union, the last hope of
Greece, the last hope of ancient liberty, was torn into pieces; and
such imbecility and distraction introduced, that the arms of Rome
found little difficulty in completing the ruin which their arts had
commenced. The Achaeans were cut to pieces, and Achaia loaded with
chains, under which it is groaning at this hour.
I have thought it not superfluous to give the outlines of this
important portion of history; both because it teaches more than one
lesson, and because, as a supplement to the outlines of the Achaean
constitution, it emphatically illustrates the tendency of federal
bodies rather to anarchy among the members, than to tyranny in the
head.
PUBLIUS.
1 This was but another name more specious for the independence
of the members on the federal head.

 

FEDERALIST No. 19

The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
Union)
For the Independent Journal.

HAMILTON AND MADISON

To the People of the State of New York:
THE examples of ancient confederacies, cited in my last paper,
have not exhausted the source of experimental instruction on this
subject. There are existing institutions, founded on a similar
principle, which merit particular consideration. The first which
presents itself is the Germanic body.
In the early ages of Christianity, Germany was occupied by seven
distinct nations, who had no common chief. The Franks, one of the
number, having conquered the Gauls, established the kingdom which
has taken its name from them. In the ninth century Charlemagne, its
warlike monarch, carried his victorious arms in every direction;
and Germany became a part of his vast dominions. On the
dismemberment, which took place under his sons, this part was
erected into a separate and independent empire. Charlemagne and his
immediate descendants possessed the reality, as well as the ensigns
and dignity of imperial power. But the principal vassals, whose
fiefs had become hereditary, and who composed the national diets
which Charlemagne had not abolished, gradually threw off the yoke
and advanced to sovereign jurisdiction and independence. The force
of imperial sovereignty was insufficient to restrain such powerful
dependants; or to preserve the unity and tranquillity of the empire.
The most furious private wars, accompanied with every species of
calamity, were carried on between the different princes and states.
The imperial authority, unable to maintain the public order,
declined by degrees till it was almost extinct in the anarchy, which
agitated the long interval between the death of the last emperor of
the Suabian, and the accession of the first emperor of the Austrian
lines. In the eleventh century the emperors enjoyed full
sovereignty: In the fifteenth they had little more than the symbols
and decorations of power.
Out of this feudal system, which has itself many of the
important features of a confederacy, has grown the federal system
which constitutes the Germanic empire. Its powers are vested in a
diet representing the component members of the confederacy; in the
emperor, who is the executive magistrate, with a negative on the
decrees of the diet; and in the imperial chamber and the aulic
council, two judiciary tribunals having supreme jurisdiction in
controversies which concern the empire, or which happen among its
members.
The diet possesses the general power of legislating for the
empire; of making war and peace; contracting alliances; assessing
quotas of troops and money; constructing fortresses; regulating
coin; admitting new members; and subjecting disobedient members to
the ban of the empire, by which the party is degraded from his
sovereign rights and his possessions forfeited. The members of the
confederacy are expressly restricted from entering into compacts
prejudicial to the empire; from imposing tolls and duties on their
mutual intercourse, without the consent of the emperor and diet;
from altering the value of money; from doing injustice to one
another; or from affording assistance or retreat to disturbers of
the public peace. And the ban is denounced against such as shall
violate any of these restrictions. The members of the diet, as
such, are subject in all cases to be judged by the emperor and diet,
and in their private capacities by the aulic council and imperial
chamber.
The prerogatives of the emperor are numerous. The most
important of them are: his exclusive right to make propositions to
the diet; to negative its resolutions; to name ambassadors; to
confer dignities and titles; to fill vacant electorates; to found
universities; to grant privileges not injurious to the states of
the empire; to receive and apply the public revenues; and
generally to watch over the public safety. In certain cases, the
electors form a council to him. In quality of emperor, he possesses
no territory within the empire, nor receives any revenue for his
support. But his revenue and dominions, in other qualities,
constitute him one of the most powerful princes in Europe.
From such a parade of constitutional powers, in the
representatives and head of this confederacy, the natural
supposition would be, that it must form an exception to the general
character which belongs to its kindred systems. Nothing would be
further from the reality. The fundamental principle on which it
rests, that the empire is a community of sovereigns, that the diet
is a representation of sovereigns and that the laws are addressed to
sovereigns, renders the empire a nerveless body, incapable of
regulating its own members, insecure against external dangers, and
agitated with unceasing fermentations in its own bowels.
The history of Germany is a history of wars between the emperor
and the princes and states; of wars among the princes and states
themselves; of the licentiousness of the strong, and the oppression
of the weak; of foreign intrusions, and foreign intrigues; of
requisitions of men and money disregarded, or partially complied
with; of attempts to enforce them, altogether abortive, or attended
with slaughter and desolation, involving the innocent with the
guilty; of general inbecility, confusion, and misery.
In the sixteenth century, the emperor, with one part of the
empire on his side, was seen engaged against the other princes and
states. In one of the conflicts, the emperor himself was put to
flight, and very near being made prisoner by the elector of Saxony.
The late king of Prussia was more than once pitted against his
imperial sovereign; and commonly proved an overmatch for him.
Controversies and wars among the members themselves have been so
common, that the German annals are crowded with the bloody pages
which describe them. Previous to the peace of Westphalia, Germany
was desolated by a war of thirty years, in which the emperor, with
one half of the empire, was on one side, and Sweden, with the other
half, on the opposite side. Peace was at length negotiated, and
dictated by foreign powers; and the articles of it, to which
foreign powers are parties, made a fundamental part of the Germanic
constitution.
If the nation happens, on any emergency, to be more united by
the necessity of self-defense, its situation is still deplorable.
Military preparations must be preceded by so many tedious
discussions, arising from the jealousies, pride, separate views, and
clashing pretensions of sovereign bodies, that before the diet can
settle the arrangements, the enemy are in the field; and before the
federal troops are ready to take it, are retiring into winter
quarters.
The small body of national troops, which has been judged
necessary in time of peace, is defectively kept up, badly paid,
infected with local prejudices, and supported by irregular and
disproportionate contributions to the treasury.
The impossibility of maintaining order and dispensing justice
among these sovereign subjects, produced the experiment of dividing
the empire into nine or ten circles or districts; of giving them an
interior organization, and of charging them with the military
execution of the laws against delinquent and contumacious members.
This experiment has only served to demonstrate more fully the
radical vice of the constitution. Each circle is the miniature
picture of the deformities of this political monster. They either
fail to execute their commissions, or they do it with all the
devastation and carnage of civil war. Sometimes whole circles are
defaulters; and then they increase the mischief which they were
instituted to remedy.
We may form some judgment of this scheme of military coercion
from a sample given by Thuanus. In Donawerth, a free and imperial
city of the circle of Suabia, the Abb 300 de St. Croix enjoyed
certain immunities which had been reserved to him. In the exercise
of these, on some public occasions, outrages were committed on him
by the people of the city. The consequence was that the city was
put under the ban of the empire, and the Duke of Bavaria, though
director of another circle, obtained an appointment to enforce it.
He soon appeared before the city with a corps of ten thousand
troops, and finding it a fit occasion, as he had secretly intended
from the beginning, to revive an antiquated claim, on the pretext
that his ancestors had suffered the place to be dismembered from his
territory,1 he took possession of it in his own name, disarmed,
and punished the inhabitants, and reannexed the city to his domains.
It may be asked, perhaps, what has so long kept this disjointed
machine from falling entirely to pieces? The answer is obvious:
The weakness of most of the members, who are unwilling to expose
themselves to the mercy of foreign powers; the weakness of most of
the principal members, compared with the formidable powers all
around them; the vast weight and influence which the emperor
derives from his separate and heriditary dominions; and the
interest he feels in preserving a system with which his family pride
is connected, and which constitutes him the first prince in Europe;
–these causes support a feeble and precarious Union; whilst the
repellant quality, incident to the nature of sovereignty, and which
time continually strengthens, prevents any reform whatever, founded
on a proper consolidation. Nor is it to be imagined, if this
obstacle could be surmounted, that the neighboring powers would
suffer a revolution to take place which would give to the empire the
force and preeminence to which it is entitled. Foreign nations have
long considered themselves as interested in the changes made by
events in this constitution; and have, on various occasions,
betrayed their policy of perpetuating its anarchy and weakness.
If more direct examples were wanting, Poland, as a government
over local sovereigns, might not improperly be taken notice of. Nor
could any proof more striking be given of the calamities flowing
from such institutions. Equally unfit for self-government and
self-defense, it has long been at the mercy of its powerful
neighbors; who have lately had the mercy to disburden it of one
third of its people and territories.
The connection among the Swiss cantons scarcely amounts to a
confederacy; though it is sometimes cited as an instance of the
stability of such institutions.
They have no common treasury; no common troops even in war; no
common coin; no common judicatory; nor any other common mark of
sovereignty.
They are kept together by the peculiarity of their topographical
position; by their individual weakness and insignificancy; by the
fear of powerful neighbors, to one of which they were formerly
subject; by the few sources of contention among a people of such
simple and homogeneous manners; by their joint interest in their
dependent possessions; by the mutual aid they stand in need of, for
suppressing insurrections and rebellions, an aid expressly
stipulated and often required and afforded; and by the necessity of
some regular and permanent provision for accomodating disputes among
the cantons. The provision is, that the parties at variance shall
each choose four judges out of the neutral cantons, who, in case of
disagreement, choose an umpire. This tribunal, under an oath of
impartiality, pronounces definitive sentence, which all the cantons
are bound to enforce. The competency of this regulation may be
estimated by a clause in their treaty of 1683, with Victor Amadeus
of Savoy; in which he obliges himself to interpose as mediator in
disputes between the cantons, and to employ force, if necessary,
against the contumacious party.
So far as the peculiarity of their case will admit of comparison
with that of the United States, it serves to confirm the principle
intended to be established. Whatever efficacy the union may have
had in ordinary cases, it appears that the moment a cause of
difference sprang up, capable of trying its strength, it failed.
The controversies on the subject of religion, which in three
instances have kindled violent and bloody contests, may be said, in
fact, to have severed the league. The Protestant and Catholic
cantons have since had their separate diets, where all the most
important concerns are adjusted, and which have left the general
diet little other business than to take care of the common bailages.
That separation had another consequence, which merits attention.
It produced opposite alliances with foreign powers: of Berne, at
the head of the Protestant association, with the United Provinces;
and of Luzerne, at the head of the Catholic association, with
France.
PUBLIUS.
1 Pfeffel, “Nouvel Abreg. Chronol. de l’Hist., etc.,
d’Allemagne,” says the pretext was to indemnify himself for the
expense of the expedition.

 

FEDERALIST No. 20

The Same Subject Continued
(The Insufficiency fo the Present Confederation to Preserve the
Union)
From the New York Packet.
Tuesday, December 11, 1787.

HAMILTON AND MADISON

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.

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.
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.
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.
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?
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.
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!
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.
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.
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.
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.
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]
Several States have endeavored, by separate prohibitions,
restrictions, and exclusions, to influence the conduct of that
kingdom in this particular, but the want of concert, arising from
the want of a general authority and from clashing and dissimilar
views in the State, has hitherto frustrated every experiment of the
kind, and will continue to do so as long as the same obstacles to a
uniformity of measures continue to exist.
The interfering and unneighborly regulations of some States,
contrary to the true spirit of the Union, have, in different
instances, given just cause of umbrage and complaint to others, and
it is to be feared that examples of this nature, if not restrained
by a national control, would be multiplied and extended till they
became not less serious sources of animosity and discord than
injurious impediments to the intcrcourse between the different parts
of the Confederacy. “The commerce of the German empire [2] is in
continual trammels from the multiplicity of the duties which the
several princes and states exact upon the merchandises passing
through their territories, by means of which the fine streams and
navigable rivers with which Germany is so happily watered are
rendered almost useless.” Though the genius of the people of this
country might never permit this description to be strictly
applicable to us, yet we may reasonably expect, from the gradual
conflicts of State regulations, that the citizens of each would at
length come to be considered and treated by the others in no better
light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of
the articles of the Confederation, is merely a power of making
requisitions upon the States for quotas of men. This practice in
the course of the late war, was found replete with obstructions to a
vigorous and to an economical system of defense. It gave birth to a
competition between the States which created a kind of auction for
men. In order to furnish the quotas required of them, they outbid
each other till bounties grew to an enormous and insupportable size.
The hope of a still further increase afforded an inducement to
those who were disposed to serve to procrastinate their enlistment,
and disinclined them from engaging for any considerable periods.
Hence, slow and scanty levies of men, in the most critical
emergencies of our affairs; short enlistments at an unparalleled
expense; continual fluctuations in the troops, ruinous to their
discipline and subjecting the public safety frequently to the
perilous crisis of a disbanded army. Hence, also, those oppressive
expedients for raising men which were upon several occasions
practiced, and which nothing but the enthusiasm of liberty would
have induced the people to endure.
This method of raising troops is not more unfriendly to economy
and vigor than it is to an equal distribution of the burden. The
States near the seat of war, influenced by motives of
self-preservation, made efforts to furnish their quotas, which even
exceeded their abilities; while those at a distance from danger
were, for the most part, as remiss as the others were diligent, in
their exertions. The immediate pressure of this inequality was not
in this case, as in that of the contributions of money, alleviated
by the hope of a final liquidation. The States which did not pay
their proportions of money might at least be charged with their
deficiencies; but no account could be formed of the deficiencies in
the supplies of men. We shall not, however, see much reason to
reget the want of this hope, when we consider how little prospect
there is, that the most delinquent States will ever be able to make
compensation for their pecuniary failures. The system of quotas and
requisitions, whether it be applied to men or money, is, in every
view, a system of imbecility in the Union, and of inequality and
injustice among the members.
The right of equal suffrage among the States is another
exceptionable part of the Confederation. Every idea of proportion
and every rule of fair representation conspire to condemn a
principle, which gives to Rhode Island an equal weight in the scale
of power with Massachusetts, or Connecticut, or New York; and to
Deleware an equal voice in the national deliberations with
Pennsylvania, or Virginia, or North Carolina. Its operation
contradicts the fundamental maxim of republican government, which
requires that the sense of the majority should prevail. Sophistry
may reply, that sovereigns are equal, and that a majority of the
votes of the States will be a majority of confederated America. But
this kind of logical legerdemain will never counteract the plain
suggestions of justice and common-sense. It may happen that this
majority of States is a small minority of the people of
America [3]; and two thirds of the people of America could not
long be persuaded, upon the credit of artificial distinctions and
syllogistic subtleties, to submit their interests to the management
and disposal of one third. The larger States would after a while
revolt from the idea of receiving the law from the smaller. To
acquiesce in such a privation of their due importance in the
political scale, would be not merely to be insensible to the love of
power, but even to sacrifice the desire of equality. It is neither
rational to expect the first, nor just to require the last. The
smaller States, considering how peculiarly their safety and welfare
depend on union, ought readily to renounce a pretension which, if
not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or
two thirds of the whole number, must consent to the most important
resolutions; and it may be thence inferred that nine States would
always comprehend a majority of the Union. But this does not
obviate the impropriety of an equal vote between States of the most
unequal dimensions and populousness; nor is the inference accurate
in point of fact; for we can enumerate nine States which contain
less than a majority of the people [4]; and it is constitutionally
possible that these nine may give the vote. Besides, there are
matters of considerable moment determinable by a bare majority; and
there are others, concerning which doubts have been entertained,
which, if interpreted in favor of the sufficiency of a vote of seven
States, would extend its operation to interests of the first
magnitude. In addition to this, it is to be observed that there is
a probability of an increase in the number of States, and no
provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is,
in reality, a poison. To give a minority a negative upon the
majority (which is always the case where more than a majority is
requisite to a decision), is, in its tendency, to subject the sense
of the greater number to that of the lesser. Congress, from the
nonattendance of a few States, have been frequently in the situation
of a Polish diet, where a single VOTE has been sufficient to put a
stop to all their movements. A sixtieth part of the Union, which is
about the proportion of Delaware and Rhode Island, has several times
been able to oppose an entire bar to its operations. This is one of
those refinements which, in practice, has an effect the reverse of
what is expected from it in theory. The necessity of unanimity in
public bodies, or of something approaching towards it, has been
founded upon a supposition that it would contribute to security.
But its real operation is to embarrass the administration, to
destroy the energy of the government, and to substitute the
pleasure, caprice, or artifices of an insignificant, turbulent, or
corrupt junto, to the regular deliberations and decisions of a
respectable majority. In those emergencies of a nation, in which
the goodness or badness, the weakness or strength of its government,
is of the greatest importance, there is commonly a necessity for
action. The public business must, in some way or other, go forward.
If a pertinacious minority can control the opinion of a majority,
respecting the best mode of conducting it, the majority, in order
that something may be done, must conform to the views of the
minority; and thus the sense of the smaller number will overrule
that of the greater, and give a tone to the national proceedings.
Hence, tedious delays; continual negotiation and intrigue;
contemptible compromises of the public good. And yet, in such a
system, it is even happy when such compromises can take place: for
upon some occasions things will not admit of accommodation; and
then the measures of government must be injuriously suspended, or
fatally defeated. It is often, by the impracticability of obtaining
the concurrence of the necessary number of votes, kept in a state of
inaction. Its situation must always savor of weakness, sometimes
border upon anarchy.
It is not difficult to discover, that a principle of this kind
gives greater scope to foreign corruption, as well as to domestic
faction, than that which permits the sense of the majority to
decide; though the contrary of this has been presumed. The mistake
has proceeded from not attending with due care to the mischiefs that
may be occasioned by obstructing the progress of government at
certain critical seasons. When the concurrence of a large number is
required by the Constitution to the doing of any national act, we
are apt to rest satisfied that all is safe, because nothing improper
will be likely TO BE DONE, but we forget how much good may be
prevented, and how much ill may be produced, by the power of
hindering the doing what may be necessary, and of keeping affairs in
the same unfavorable posture in which they may happen to stand at
particular periods.
Suppose, for instance, we were engaged in a war, in conjunction
with one foreign nation, against another. Suppose the necessity of
our situation demanded peace, and the interest or ambition of our
ally led him to seek the prosecution of the war, with views that
might justify us in making separate terms. In such a state of
things, this ally of ours would evidently find it much easier, by
his bribes and intrigues, to tie up the hands of government from
making peace, where two thirds of all the votes were requisite to
that object, than where a simple majority would suffice. In the
first case, he would have to corrupt a smaller number; in the last,
a greater number. Upon the same principle, it would be much easier
for a foreign power with which we were at war to perplex our
councils and embarrass our exertions. And, in a commercial view, we
may be subjected to similar inconveniences. A nation, with which we
might have a treaty of commerce, could with much greater facility
prevent our forming a connection with her competitor in trade,
though such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary.
One of the weak sides of republics, among their numerous
advantages, is that they afford too easy an inlet to foreign
corruption. An hereditary monarch, though often disposed to
sacrifice his subjects to his ambition, has so great a personal
interest in the government and in the external glory of the nation,
that it is not easy for a foreign power to give him an equivalent
for what he would sacrifice by treachery to the state. The world
has accordingly been witness to few examples of this species of
royal prostitution, though there have been abundant specimens of
every other kind.
In republics, persons elevated from the mass of the community,
by the suffrages of their fellow-citizens, to stations of great
pre-eminence and power, may find compensations for betraying their
trust, which, to any but minds animated and guided by superior
virtue, may appear to exceed the proportion of interest they have in
the common stock, and to overbalance the obligations of duty. Hence
it is that history furnishes us with so many mortifying examples of
the prevalency of foreign corruption in republican governments. How
much this contributed to the ruin of the ancient commonwealths has
been already delineated. It is well known that the deputies of the
United Provinces have, in various instances, been purchased by the
emissaries of the neighboring kingdoms. The Earl of Chesterfield
(if my memory serves me right), in a letter to his court, intimates
that his success in an important negotiation must depend on his
obtaining a major’s commission for one of those deputies. And in
Sweden the parties were alternately bought by France and England in
so barefaced and notorious a manner that it excited universal
disgust in the nation, and was a principal cause that the most
limited monarch in Europe, in a single day, without tumult,
violence, or opposition, became one of the most absolute and
uncontrolled.
A circumstance which crowns the defects of the Confederation
remains yet to be mentioned, the want of a judiciary power. Laws
are a dead letter without courts to expound and define their true
meaning and operation. The treaties of the United States, to have
any force at all, must be considered as part of the law of the land.
Their true import, as far as respects individuals, must, like all
other laws, be ascertained by judicial determinations. To produce
uniformity in these determinations, they ought to be submitted, in
the last resort, to one SUPREME TRIBUNAL. And this tribunal ought
to be instituted under the same authority which forms the treaties
themselves. These ingredients are both indispensable. If there is
in each State a court of final jurisdiction, there may be as many
different final determinations on the same point as there are courts.
There are endless diversities in the opinions of men. We often
see not only different courts but the judges of the came court
differing from each other. To avoid the confusion which would
unavoidably result from the contradictory decisions of a number of
independent judicatories, all nations have found it necessary to
establish one court paramount to the rest, possessing a general
superintendence, and authorized to settle and declare in the last
resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is
so compounded that the laws of the whole are in danger of being
contravened by the laws of the parts. In this case, if the
particular tribunals are invested with a right of ultimate
jurisdiction, besides the contradictions to be expected from
difference of opinion, there will be much to fear from the bias of
local views and prejudices, and from the interference of local
regulations. As often as such an interference was to happen, there
would be reason to apprehend that the provisions of the particular
laws might be preferred to those of the general laws; for nothing
is more natural to men in office than to look with peculiar
deference towards that authority to which they owe their official
existence. The treaties of the United States, under the present
Constitution, are liable to the infractions of thirteen different
legislatures, and as many different courts of final jurisdiction,
acting under the authority of those legislatures. The faith, the
reputation, the peace of the whole Union, are thus continually at
the mercy of the prejudices, the passions, and the interests of
every member of which it is composed. Is it possible that foreign
nations can either respect or confide in such a government? Is it
possible that the people of America will longer consent to trust
their honor, their happiness, their safety, on so precarious a
foundation?
In this review of the Confederation, I have confined myself to
the exhibition of its most material defects; passing over those
imperfections in its details by which even a great part of the power
intended to be conferred upon it has been in a great measure
rendered abortive. It must be by this time evident to all men of
reflection, who can divest themselves of the prepossessions of
preconceived opinions, that it is a system so radically vicious and
unsound, as to admit not of amendment but by an entire change in its
leading features and characters.
The organization of Congress is itself utterly improper for the
exercise of those powers which are necessary to be deposited in the
Union. A single assembly may be a proper receptacle of those
slender, or rather fettered, authorities, which have been heretofore
delegated to the federal head; but it would be inconsistent with
all the principles of good government, to intrust it with those
additional powers which, even the moderate and more rational
adversaries of the proposed Constitution admit, ought to reside in
the United States. If that plan should not be adopted, and if the
necessity of the Union should be able to withstand the ambitious
aims of those men who may indulge magnificent schemes of personal
aggrandizement from its dissolution, the probability would be, that
we should run into the project of conferring supplementary powers
upon Congress, as they are now constituted; and either the machine,
from the intrinsic feebleness of its structure, will moulder into
pieces, in spite of our ill-judged efforts to prop it; or, by
successive augmentations of its force an energy, as necessity might
prompt, we shall finally accumulate, in a single body, all the most
important prerogatives of sovereignty, and thus entail upon our
posterity one of the most execrable forms of government that human
infatuation ever contrived. Thus, we should create in reality that
very tyranny which the adversaries of the new Constitution either
are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the
existing federal system, that it never had a ratification by the
PEOPLE. Resting on no better foundation than the consent of the
several legislatures, it has been exposed to frequent and intricate
questions concerning the validity of its powers, and has, in some
instances, given birth to the enormous doctrine of a right of
legislative repeal. Owing its ratification to the law of a State,
it has been contended that the same authority might repeal the law
by which it was ratified. However gross a heresy it may be to
maintain that a PARTY to a COMPACT has a right to revoke that
COMPACT, the doctrine itself has had respectable advocates. The
possibility of a question of this nature proves the necessity of
laying the foundations of our national government deeper than in the
mere sanction of delegated authority. The fabric of American empire
ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
streams of national power ought to flow immediately from that pure,
original fountain of all legitimate authority.
PUBLIUS.

FNA1-@1 This, as nearly as I can recollect, was the sense of his
speech on introducing the last bill.
FNA1-@2 Encyclopedia, article “Empire.”
FNA1-@3 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia,
South Carolina, and Maryland are a majority of the whole number of
the States, but they do not contain one third of the people.
FNA1-@4 Add New York and Connecticut to the foregoing seven, and they
will be less than a majority.

 

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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
FNA1-@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.
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 authcrity.
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.
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.
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.
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.
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.
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.
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
.
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.

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.
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.
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.
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.”
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
FNA1-@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.

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.
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.
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?
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.
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]
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.
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!
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.
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.
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.
FNA1-@1 Its full efficacy will be examined hereafter.

 

FEDERALIST No. 29

Concerning the Militia
From the Daily Advertiser.
Thursday, January 10, 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.
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.”
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.
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
judgment?
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:
“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.
“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.”
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.
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.
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”; discoloring and disfiguring whatever it represents,
and transforming everything it touches into a monster.
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?
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.
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 selfpreservation to the
too feeble impulses of duty and sympathy.
PUBLIUS.

 

FEDERALIST No. 30

Concerning the General Power of Taxation
From the New York Packet.
Friday, December 28, 1787.

HAMILTON

To the People of the State of New York:
IT HAS been already observed that the federal government ought
to possess the power of providing for the support of the national
forces; in which proposition was intended to be included the
expense of raising troops, of building and equipping fleets, and all
other expenses in any wise connected with military arrangements and
operations. But these are not the only objects to which the
jurisdiction of the Union, in respect to revenue, must necessarily
be empowered to extend. It must embrace a provision for the support
of the national civil list; for the payment of the national debts
contracted, or that may be contracted; and, in general, for all
those matters which will call for disbursements out of the national
treasury. The conclusion is, that there must be interwoven, in the
frame of the government, a general power of taxation, in one shape
or another.
Money is, with propriety, considered as the vital principle of
the body politic; as that which sustains its life and motion, and
enables it to perform its most essential functions. A complete
power, therefore, to procure a regular and adequate supply of it, as
far as the resources of the community will permit, may be regarded
as an indispensable ingredient in every constitution. From a
deficiency in this particular, one of two evils must ensue; either
the people must be subjected to continual plunder, as a substitute
for a more eligible mode of supplying the public wants, or the
government must sink into a fatal atrophy, and, in a short course of
time, perish.
In the Ottoman or Turkish empire, the sovereign, though in other
respects absolute master of the lives and fortunes of his subjects,
has no right to impose a new tax. The consequence is that he
permits the bashaws or governors of provinces to pillage the people
without mercy; and, in turn, squeezes out of them the sums of which
he stands in need, to satisfy his own exigencies and those of the
state. In America, from a like cause, the government of the Union
has gradually dwindled into a state of decay, approaching nearly to
annihilation. Who can doubt, that the happiness of the people in
both countries would be promoted by competent authorities in the
proper hands, to provide the revenues which the necessities of the
public might require?
The present Confederation, feeble as it is intended to repose in
the United States, an unlimited power of providing for the pecuniary
wants of the Union. But proceeding upon an erroneous principle, it
has been done in such a manner as entirely to have frustrated the
intention. Congress, by the articles which compose that compact (as
has already been stated), are authorized to ascertain and call for
any sums of money necessary, in their judgment, to the service of
the United States; and their requisitions, if conformable to the
rule of apportionment, are in every constitutional sense obligatory
upon the States. These have no right to question the propriety of
the demand; no discretion beyond that of devising the ways and
means of furnishing the sums demanded. But though this be strictly
and truly the case; though the assumption of such a right would be
an infringement of the articles of Union; though it may seldom or
never have been avowedly claimed, yet in practice it has been
constantly exercised, and would continue to be so, as long as the
revenues of the Confederacy should remain dependent on the
intermediate agency of its members. What the consequences of this
system have been, is within the knowledge of every man the least
conversant in our public affairs, and has been amply unfolded in
different parts of these inquiries. It is this which has chiefly
contributed to reduce us to a situation, which affords ample cause
both of mortification to ourselves, and of triumph to our enemies.
What remedy can there be for this situation, but in a change of
the system which has produced it in a change of the fallacious and
delusive system of quotas and requisitions? What substitute can
there be imagined for this ignis fatuus in finance, but that of
permitting the national government to raise its own revenues by the
ordinary methods of taxation authorized in every well-ordered
constitution of civil government? Ingenious men may declaim with
plausibility on any subject; but no human ingenuity can point out
any other expedient to rescue us from the inconveniences and
embarrassments naturally resulting from defective supplies of the
public treasury.
The more intelligent adversaries of the new Constitution admit
the force of this reasoning; but they qualify their admission by a
distinction between what they call INTERNAL and EXTERNAL taxation.
The former they would reserve to the State governments; the
latter, which they explain into commercial imposts, or rather duties
on imported articles, they declare themselves willing to concede to
the federal head. This distinction, however, would violate the
maxim of good sense and sound policy, which dictates that every
POWER ought to be in proportion to its OBJECT; and would still
leave the general government in a kind of tutelage to the State
governments, inconsistent with every idea of vigor or efficiency.
Who can pretend that commercial imposts are, or would be, alone
equal to the present and future exigencies of the Union? Taking
into the account the existing debt, foreign and domestic, upon any
plan of extinguishment which a man moderately impressed with the
importance of public justice and public credit could approve, in
addition to the establishments which all parties will acknowledge to
be necessary, we could not reasonably flatter ourselves, that this
resource alone, upon the most improved scale, would even suffice for
its present necessities. Its future necessities admit not of
calculation or limitation; and upon the principle, more than once
adverted to, the power of making provision for them as they arise
ought to be equally unconfined. I believe it may be regarded as a
position warranted by the history of mankind, that, IN THE USUAL
PROGRESS OF THINGS, THE NECESSITIES OF A NATION, IN EVERY STAGE OF
ITS EXISTENCE, WILL BE FOUND AT LEAST EQUAL TO ITS RESOURCES.
To say that deficiencies may be provided for by requisitions
upon the States, is on the one hand to acknowledge that this system
cannot be depended upon, and on the other hand to depend upon it for
every thing beyond a certain limit. Those who have carefully
attended to its vices and deformities as they have been exhibited by
experience or delineated in the course of these papers, must feel
invincible repugnancy to trusting the national interests in any
degree to its operation. Its inevitable tendency, whenever it is
brought into activity, must be to enfeeble the Union, and sow the
seeds of discord and contention between the federal head and its
members, and between the members themselves. Can it be expected
that the deficiencies would be better supplied in this mode than the
total wants of the Union have heretofore been supplied in the same
mode? It ought to be recollected that if less will be required from
the States, they will have proportionably less means to answer the
demand. If the opinions of those who contend for the distinction
which has been mentioned were to be received as evidence of truth,
one would be led to conclude that there was some known point in the
economy of national affairs at which it would be safe to stop and to
say: Thus far the ends of public happiness will be promoted by
supplying the wants of government, and all beyond this is unworthy
of our care or anxiety. How is it possible that a government half
supplied and always necessitous, can fulfill the purposes of its
institution, can provide for the security, advance the prosperity,
or support the reputation of the commonwealth? How can it ever
possess either energy or stability, dignity or credit, confidence at
home or respectability abroad? How can its administration be any
thing else than a succession of expedients temporizing, impotent,
disgraceful? How will it be able to avoid a frequent sacrifice of
its engagements to immediate necessity? How can it undertake or
execute any liberal or enlarged plans of public good?
Let us attend to what would be the effects of this situation in
the very first war in which we should happen to be engaged. We will
presume, for argument’s sake, that the revenue arising from the
impost duties answers the purposes of a provision for the public
debt and of a peace establishment for the Union. Thus
circumstanced, a war breaks out. What would be the probable conduct
of the government in such an emergency? Taught by experience that
proper dependence could not be placed on the success of
requisitions, unable by its own authority to lay hold of fresh
resources, and urged by considerations of national danger, would it
not be driven to the expedient of diverting the funds already
appropriated from their proper objects to the defense of the State?
It is not easy to see how a step of this kind could be avoided;
and if it should be taken, it is evident that it would prove the
destruction of public credit at the very moment that it was becoming
essential to the public safety. To imagine that at such a crisis
credit might be dispensed with, would be the extreme of infatuation.
In the modern system of war, nations the most wealthy are obliged
to have recourse to large loans. A country so little opulent as
ours must feel this necessity in a much stronger degree. But who
would lend to a government that prefaced its overtures for borrowing
by an act which demonstrated that no reliance could be placed on the
steadiness of its measures for paying? The loans it might be able
to procure would be as limited in their extent as burdensome in
their conditions. They would be made upon the same principles that
usurers commonly lend to bankrupt and fraudulent debtors, with a
sparing hand and at enormous premiums.
It may perhaps be imagined that, from the scantiness of the
resources of the country, the necessity of diverting the established
funds in the case supposed would exist, though the national
government should possess an unrestrained power of taxation. But
two considerations will serve to quiet all apprehension on this
head: one is, that we are sure the resources of the community, in
their full extent, will be brought into activity for the benefit of
the Union; the other is, that whatever deficiences there may be,
can without difficulty be supplied by loans.
The power of creating new funds upon new objects of taxation, by
its own authority, would enable the national government to borrow as
far as its necessities might require. Foreigners, as well as the
citizens of America, could then reasonably repose confidence in its
engagements; but to depend upon a government that must itself
depend upon thirteen other governments for the means of fulfilling
its contracts, when once its situation is clearly understood, would
require a degree of credulity not often to be met with in the
pecuniary transactions of mankind, and little reconcilable with the
usual sharp-sightedness of avarice.
Reflections of this kind may have trifling weight with men who
hope to see realized in America the halcyon scenes of the poetic or
fabulous age; but to those who believe we are likely to experience
a common portion of the vicissitudes and calamities which have
fallen to the lot of other nations, they must appear entitled to
serious attention. Such men must behold the actual situation of
their country with painful solicitude, and deprecate the evils which
ambition or revenge might, with too much facility, inflict upon it.
PUBLIUS.

 

FEDERALIST No. 31

The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Tuesday, January 1, 1788.

HAMILTON

To the People of the State of New York:
IN DISQUISITIONS of every kind, there are certain primary
truths, or first principles, upon which all subsequent reasonings
must depend. These contain an internal evidence which, antecedent
to all reflection or combination, commands the assent of the mind.
Where it produces not this effect, it must proceed either from some
defect or disorder in the organs of perception, or from the
influence of some strong interest, or passion, or prejudice. Of
this nature are the maxims in geometry, that “the whole is greater
than its part; things equal to the same are equal to one another;
two straight lines cannot enclose a space; and all right angles
are equal to each other.” Of the same nature are these other
maxims in ethics and politics, that there cannot be an effect
without a cause; that the means ought to be proportioned to the
end; that every power ought to be commensurate with its object;
that there ought to be no limitation of a power destined to effect
a purpose which is itself incapable of limitation. And there are
other truths in the two latter sciences which, if they cannot
pretend to rank in the class of axioms, are yet such direct
inferences from them, and so obvious in themselves, and so agreeable
to the natural and unsophisticated dictates of common-sense, that
they challenge the assent of a sound and unbiased mind, with a
degree of force and conviction almost equally irresistible.
The objects of geometrical inquiry are so entirely abstracted
from those pursuits which stir up and put in motion the unruly
passions of the human heart, that mankind, without difficulty, adopt
not only the more simple theorems of the science, but even those
abstruse paradoxes which, however they may appear susceptible of
demonstration, are at variance with the natural conceptions which
the mind, without the aid of philosophy, would be led to entertain
upon the subject. The INFINITE DIVISIBILITY of matter, or, in other
words, the INFINITE divisibility of a FINITE thing, extending even
to the minutest atom, is a point agreed among geometricians, though
not less incomprehensible to common-sense than any of those
mysteries in religion, against which the batteries of infidelity
have been so industriously leveled.
But in the sciences of morals and politics, men are found far
less tractable. To a certain degree, it is right and useful that
this should be the case. Caution and investigation are a necessary
armor against error and imposition. But this untractableness may be
carried too far, and may degenerate into obstinacy, perverseness, or
disingenuity. Though it cannot be pretended that the principles of
moral and political knowledge have, in general, the same degree of
certainty with those of the mathematics, yet they have much better
claims in this respect than, to judge from the conduct of men in
particular situations, we should be disposed to allow them. The
obscurity is much oftener in the passions and prejudices of the
reasoner than in the subject. Men, upon too many occasions, do not
give their own understandings fair play; but, yielding to some
untoward bias, they entangle themselves in words and confound
themselves in subtleties.
How else could it happen (if we admit the objectors to be
sincere in their opposition), that positions so clear as those which
manifest the necessity of a general power of taxation in the
government of the Union, should have to encounter any adversaries
among men of discernment? Though these positions have been
elsewhere fully stated, they will perhaps not be improperly
recapitulated in this place, as introductory to an examination of
what may have been offered by way of objection to them. They are in
substance as follows:
A government ought to contain in itself every power requisite to
the full accomplishment of the objects committed to its care, and to
the complete execution of the trusts for which it is responsible,
free from every other control but a regard to the public good and to
the sense of the people.
As the duties of superintending the national defense and of
securing the public peace against foreign or domestic violence
involve a provision for casualties and dangers to which no possible
limits can be assigned, the power of making that provision ought to
know no other bounds than the exigencies of the nation and the
resources of the community.
As revenue is the essential engine by which the means of
answering the national exigencies must be procured, the power of
procuring that article in its full extent must necessarily be
comprehended in that of providing for those exigencies.
As theory and practice conspire to prove that the power of
procuring revenue is unavailing when exercised over the States in
their collective capacities, the federal government must of
necessity be invested with an unqualified power of taxation in the
ordinary modes.
Did not experience evince the contrary, it would be natural to
conclude that the propriety of a general power of taxation in the
national government might safely be permitted to rest on the
evidence of these propositions, unassisted by any additional
arguments or illustrations. But we find, in fact, that the
antagonists of the proposed Constitution, so far from acquiescing in
their justness or truth, seem to make their principal and most
zealous effort against this part of the plan. It may therefore be
satisfactory to analyze the arguments with which they combat it.
Those of them which have been most labored with that view, seem
in substance to amount to this: “It is not true, because the
exigencies of the Union may not be susceptible of limitation, that
its power of laying taxes ought to be unconfined. Revenue is as
requisite to the purposes of the local administrations as to those
of the Union; and the former are at least of equal importance with
the latter to the happiness of the people. It is, therefore, as
necessary that the State governments should be able to command the
means of supplying their wants, as that the national government
should possess the like faculty in respect to the wants of the Union.
But an indefinite power of taxation in the LATTER might, and
probably would in time, deprive the FORMER of the means of providing
for their own necessities; and would subject them entirely to the
mercy of the national legislature. As the laws of the Union are to
become the supreme law of the land, as it is to have power to pass
all laws that may be NECESSARY for carrying into execution the
authorities with which it is proposed to vest it, the national
government might at any time abolish the taxes imposed for State
objects upon the pretense of an interference with its own. It might
allege a necessity of doing this in order to give efficacy to the
national revenues. And thus all the resources of taxation might by
degrees become the subjects of federal monopoly, to the entire
exclusion and destruction of the State governments.”
This mode of reasoning appears sometimes to turn upon the
supposition of usurpation in the national government; at other
times it seems to be designed only as a deduction from the
constitutional operation of its intended powers. It is only in the
latter light that it can be admitted to have any pretensions to
fairness. The moment we launch into conjectures about the
usurpations of the federal government, we get into an unfathomable
abyss, and fairly put ourselves out of the reach of all reasoning.
Imagination may range at pleasure till it gets bewildered amidst
the labyrinths of an enchanted castle, and knows not on which side
to turn to extricate itself from the perplexities into which it has
so rashly adventured. Whatever may be the limits or modifications
of the powers of the Union, it is easy to imagine an endless train
of possible dangers; and by indulging an excess of jealousy and
timidity, we may bring ourselves to a state of absolute scepticism
and irresolution. I repeat here what I have observed in substance
in another place, that all observations founded upon the danger of
usurpation ought to be referred to the composition and structure of
the government, not to the nature or extent of its powers. The
State governments, by their original constitutions, are invested
with complete sovereignty. In what does our security consist
against usurpation from that quarter? Doubtless in the manner of
their formation, and in a due dependence of those who are to
administer them upon the people. If the proposed construction of
the federal government be found, upon an impartial examination of
it, to be such as to afford, to a proper extent, the same species of
security, all apprehensions on the score of usurpation ought to be
discarded.
It should not be forgotten that a disposition in the State
governments to encroach upon the rights of the Union is quite as
probable as a disposition in the Union to encroach upon the rights
of the State governments. What side would be likely to prevail in
such a conflict, must depend on the means which the contending
parties could employ toward insuring success. As in republics
strength is always on the side of the people, and as there are
weighty reasons to induce a belief that the State governments will
commonly possess most influence over them, the natural conclusion is
that such contests will be most apt to end to the disadvantage of
the Union; and that there is greater probability of encroachments
by the members upon the federal head, than by the federal head upon
the members. But it is evident that all conjectures of this kind
must be extremely vague and fallible: and that it is by far the
safest course to lay them altogether aside, and to confine our
attention wholly to the nature and extent of the powers as they are
delineated in the Constitution. Every thing beyond this must be
left to the prudence and firmness of the people; who, as they will
hold the scales in their own hands, it is to be hoped, will always
take care to preserve the constitutional equilibrium between the
general and the State governments. Upon this ground, which is
evidently the true one, it will not be difficult to obviate the
objections which have been made to an indefinite power of taxation
in the United States.
PUBLIUS.

 

FEDERALIST No. 32

The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
Thursday, January 3, 1788.

HAMILTON

To the People of the State of New York:
ALTHOUGH I am of opinion that there would be no real danger of
the consequences which seem to be apprehended to the State
governments from a power in the Union to control them in the levies
of money, because I am persuaded that the sense of the people, the
extreme hazard of provoking the resentments of the State
governments, and a conviction of the utility and necessity of local
administrations for local purposes, would be a complete barrier
against the oppressive use of such a power; yet I am willing here
to allow, in its full extent, the justness of the reasoning which
requires that the individual States should possess an independent
and uncontrollable authority to raise their own revenues for the
supply of their own wants. And making this concession, I affirm
that (with the sole exception of duties on imports and exports) they
would, under the plan of the convention, retain that authority in
the most absolute and unqualified sense; and that an attempt on the
part of the national government to abridge them in the exercise of
it, would be a violent assumption of power, unwarranted by any
article or clause of its Constitution.
An entire consolidation of the States into one complete national
sovereignty would imply an entire subordination of the parts; and
whatever powers might remain in them, would be altogether dependent
on the general will. But as the plan of the convention aims only at
a partial union or consolidation, the State governments would
clearly retain all the rights of sovereignty which they before had,
and which were not, by that act, EXCLUSIVELY delegated to the United
States. This exclusive delegation, or rather this alienation, of
State sovereignty, would only exist in three cases: where the
Constitution in express terms granted an exclusive authority to the
Union; where it granted in one instance an authority to the Union,
and in another prohibited the States from exercising the like
authority; and where it granted an authority to the Union, to which
a similar authority in the States would be absolutely and totally
CONTRADICTORY and REPUGNANT. I use these terms to distinguish this
last case from another which might appear to resemble it, but which
would, in fact, be essentially different; I mean where the exercise
of a concurrent jurisdiction might be productive of occasional
interferences in the POLICY of any branch of administration, but
would not imply any direct contradiction or repugnancy in point of
constitutional authority. These three cases of exclusive
jurisdiction in the federal government may be exemplified by the
following instances: The last clause but one in the eighth section
of the first article provides expressly that Congress shall exercise
“EXCLUSIVE LEGISLATION” over the district to be appropriated as
the seat of government. This answers to the first case. The first
clause of the same section empowers Congress “TO LAY AND COLLECT
TAXES, DUTIES, IMPOSTS AND EXCISES”; and the second clause of the
tenth section of the same article declares that, “NO STATE SHALL,
without the consent of Congress, LAY ANY IMPOSTS OR DUTIES ON
IMPORTS OR EXPORTS, except for the purpose of executing its
inspection laws.” Hence would result an exclusive power in the
Union to lay duties on imports and exports, with the particular
exception mentioned; but this power is abridged by another clause,
which declares that no tax or duty shall be laid on articles
exported from any State; in consequence of which qualification, it
now only extends to the DUTIES ON IMPORTS. This answers to the
second case. The third will be found in that clause which declares
that Congress shall have power “to establish an UNIFORM RULE of
naturalization throughout the United States.” This must
necessarily be exclusive; because if each State had power to
prescribe a DISTINCT RULE, there could not be a UNIFORM RULE.
A case which may perhaps be thought to resemble the latter, but
which is in fact widely different, affects the question immediately
under consideration. I mean the power of imposing taxes on all
articles other than exports and imports. This, I contend, is
manifestly a concurrent and coequal authority in the United States
and in the individual States. There is plainly no expression in the
granting clause which makes that power EXCLUSIVE in the Union.
There is no independent clause or sentence which prohibits the
States from exercising it. So far is this from being the case, that
a plain and conclusive argument to the contrary is to be deduced
from the restraint laid upon the States in relation to duties on
imports and exports. This restriction implies an admission that, if
it were not inserted, the States would possess the power it
excludes; and it implies a further admission, that as to all other
taxes, the authority of the States remains undiminished. In any
other view it would be both unnecessary and dangerous; it would be
unnecessary, because if the grant to the Union of the power of
laying such duties implied the exclusion of the States, or even
their subordination in this particular, there could be no need of
such a restriction; it would be dangerous, because the introduction
of it leads directly to the conclusion which has been mentioned, and
which, if the reasoning of the objectors be just, could not have
been intended; I mean that the States, in all cases to which the
restriction did not apply, would have a concurrent power of taxation
with the Union. The restriction in question amounts to what lawyers
call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and an
AFFIRMANCE of another; a negation of the authority of the States to
impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from
the imposition of taxes of the former kind, and to leave them at
liberty to lay others SUBJECT TO THE CONTROL of the national
legislature. The restraining or prohibitory clause only says, that
they shall not, WITHOUT THE CONSENT OF CONGRESS, lay such duties;
and if we are to understand this in the sense last mentioned, the
Constitution would then be made to introduce a formal provision for
the sake of a very absurd conclusion; which is, that the States,
WITH THE CONSENT of the national legislature, might tax imports and
exports; and that they might tax every other article, UNLESS
CONTROLLED by the same body. If this was the intention, why not
leave it, in the first instance, to what is alleged to be the
natural operation of the original clause, conferring a general power
of taxation upon the Union? It is evident that this could not have
been the intention, and that it will not bear a construction of the
kind.
As to a supposition of repugnancy between the power of taxation
in the States and in the Union, it cannot be supported in that sense
which would be requisite to work an exclusion of the States. It is,
indeed, possible that a tax might be laid on a particular article by
a State which might render it INEXPEDIENT that thus a further tax
should be laid on the same article by the Union; but it would not
imply a constitutional inability to impose a further tax. The
quantity of the imposition, the expediency or inexpediency of an
increase on either side, would be mutually questions of prudence;
but there would be involved no direct contradiction of power. The
particular policy of the national and of the State systems of
finance might now and then not exactly coincide, and might require
reciprocal forbearances. It is not, however a mere possibility of
inconvenience in the exercise of powers, but an immediate
constitutional repugnancy that can by implication alienate and
extinguish a pre-existing right of sovereignty.
The necessity of a concurrent jurisdiction in certain cases
results from the division of the sovereign power; and the rule that
all authorities, of which the States are not explicitly divested in
favor of the Union, remain with them in full vigor, is not a
theoretical consequence of that division, but is clearly admitted by
the whole tenor of the instrument which contains the articles of the
proposed Constitution. We there find that, notwithstanding the
affirmative grants of general authorities, there has been the most
pointed care in those cases where it was deemed improper that the
like authorities should reside in the States, to insert negative
clauses prohibiting the exercise of them by the States. The tenth
section of the first article consists altogether of such provisions.
This circumstance is a clear indication of the sense of the
convention, and furnishes a rule of interpretation out of the body
of the act, which justifies the position I have advanced and refutes
every hypothesis to the contrary.
PUBLIUS.

 

FEDERALIST No. 33

The Same Subject Continued
(Concerning the General Power of Taxation)
From the Daily Advertiser.
January 3, 1788.

HAMILTON

To the People of the State of New York:
THE residue of the argument against the provisions of the
Constitution in respect to taxation is ingrafted upon the following
clause. The last clause of the eighth section of the first article
of the plan under consideration authorizes the national legislature
“to make all laws which shall be NECESSARY and PROPER for carrying
into execution THE POWERS by that Constitution vested in the
government of the United States, or in any department or officer
thereof”; and the second clause of the sixth article declares,
“that the Constitution and the laws of the United States made IN
PURSUANCE THEREOF, and the treaties made by their authority shall be
the SUPREME LAW of the land, any thing in the constitution or laws
of any State to the contrary notwithstanding.”
These two clauses have been the source of much virulent
invective and petulant declamation against the proposed Constitution.
They have been held up to the people in all the exaggerated colors
of misrepresentation as the pernicious engines by which their local
governments were to be destroyed and their liberties exterminated;
as the hideous monster whose devouring jaws would spare neither sex
nor age, nor high nor low, nor sacred nor profane; and yet, strange
as it may appear, after all this clamor, to those who may not have
happened to contemplate them in the same light, it may be affirmed
with perfect confidence that the constitutional operation of the
intended government would be precisely the same, if these clauses
were entirely obliterated, as if they were repeated in every article.
They are only declaratory of a truth which would have resulted by
necessary and unavoidable implication from the very act of
constituting a federal government, and vesting it with certain
specified powers. This is so clear a proposition, that moderation
itself can scarcely listen to the railings which have been so
copiously vented against this part of the plan, without emotions
that disturb its equanimity.
What is a power, but the ability or faculty of doing a thing?
What is the ability to do a thing, but the power of employing the
MEANS necessary to its execution? What is a LEGISLATIVE power, but
a power of making LAWS? What are the MEANS to execute a LEGISLATIVE
power but LAWS? What is the power of laying and collecting taxes,
but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and
collect taxes? What are the propermeans of executing such a power,
but NECESSARY and PROPER laws?
This simple train of inquiry furnishes us at once with a test by
which to judge of the true nature of the clause complained of. It
conducts us to this palpable truth, that a power to lay and collect
taxes must be a power to pass all laws NECESSARY and PROPER for the
execution of that power; and what does the unfortunate and
culumniated provision in question do more than declare the same
truth, to wit, that the national legislature, to whom the power of
laying and collecting taxes had been previously given, might, in the
execution of that power, pass all laws NECESSARY and PROPER to carry
it into effect? I have applied these observations thus particularly
to the power of taxation, because it is the immediate subject under
consideration, and because it is the most important of the
authorities proposed to be conferred upon the Union. But the same
process will lead to the same result, in relation to all other
powers declared in the Constitution. And it is EXPRESSLY to execute
these powers that the sweeping clause, as it has been affectedly
called, authorizes the national legislature to pass all NECESSARY
and PROPER laws. If there is any thing exceptionable, it must be
sought for in the specific powers upon which this general
declaration is predicated. The declaration itself, though it may be
chargeable with tautology or redundancy, is at least perfectly
harmless.
But SUSPICION may ask, Why then was it introduced? The answer
is, that it could only have been done for greater caution, and to
guard against all cavilling refinements in those who might hereafter
feel a disposition to curtail and evade the legitimatb authorities
of the Union. The Convention probably foresaw, what it has been a
principal aim of these papers to inculcate, that the danger which
most threatens our political welfare is that the State governments
will finally sap the foundations of the Union; and might therefore
think it necessary, in so cardinal a point, to leave nothing to
construction. Whatever may have been the inducement to it, the
wisdom of the precaution is evident from the cry which has been
raised against it; as that very cry betrays a disposition to
question the great and essential truth which it is manifestly the
object of that provision to declare.
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as
fully upon the simple grant of those powers as upon the declaratory
clause; and I answer, in the second place, that the national
government, like every other, must judge, in the first instance, of
the proper exercise of its powers, and its constituents in the last.
If the federal government should overpass the just bounds of its
authority and make a tyrannical use of its powers, the people, whose
creature it is, must appeal to the standard they have formed, and
take such measures to redress the injury done to the Constitution as
the exigency may suggest and prudence justify. The propriety of a
law, in a constitutional light, must always be determined by the
nature of the powers upon which it is founded. Suppose, by some
forced constructions of its authority (which, indeed, cannot easily
be imagined), the Federal legislature should attempt to vary the law
of descent in any State, would it not be evident that, in making
such an attempt, it had exceeded its jurisdiction, and infringed
upon that of the State? Suppose, again, that upon the pretense of
an interference with its revenues, it should undertake to abrogate a
landtax imposed by the authority of a State; would it not be
equally evident that this was an invasion of that concurrent
jurisdiction in respect to this species of tax, which its
Constitution plainly supposes to exist in the State governments? If
there ever should be a doubt on this head, the credit of it will be
entirely due to those reasoners who, in the imprudent zeal of their
animosity to the plan of the convention, have labored to envelop it
in a cloud calculated to obscure the plainest and simplest truths.
But it is said that the laws of the Union are to be the SUPREME
LAW of the land. But what inference can be drawn from this, or what
would they amount to, if they were not to be supreme? It is evident
they would amount to nothing. A LAW, by the very meaning of the
term, includes supremacy. It is a rule which those to whom it is
prescribed are bound to observe. This results from every political
association. If individuals enter into a state of society, the laws
of that society must be the supreme regulator of their conduct. If
a number of political societies enter into a larger political
society, the laws which the latter may enact, pursuant to the powers
intrusted to it by its constitution, must necessarily be supreme
over those societies, and the individuals of whom they are composed.
It would otherwise be a mere treaty, dependent on the good faith of
the parties, and not a goverment, which is only another word for
POLITICAL POWER AND SUPREMACY. But it will not follow from this
doctrine that acts of the large society which are NOT PURSUANT to
its constitutional powers, but which are invasions of the residuary
authorities of the smaller societies, will become the supreme law of
the land. These will be merely acts of usurpation, and will deserve
to be treated as such. Hence we perceive that the clause which
declares the supremacy of the laws of the Union, like the one we
have just before considered, only declares a truth, which flows
immediately and necessarily from the institution of a federal
government. It will not, I presume, have escaped observation, that
it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE
CONSTITUTION; which I mention merely as an instance of caution in
the convention; since that limitation would have been to be
understood, though it had not been expressed.
Though a law, therefore, laying a tax for the use of the United
States would be supreme in its nature, and could not legally be
opposed or controlled, yet a law for abrogating or preventing the
collection of a tax laid by the authority of the State, (unless upon
imports and exports), would not be the supreme law of the land, but
a usurpation of power not granted by the Constitution. As far as an
improper accumulation of taxes on the same object might tend to
render the collection difficult or precarious, this would be a
mutual inconvenience, not arising from a superiority or defect of
power on either side, but from an injudicious exercise of power by
one or the other, in a manner equally disadvantageous to both. It
is to be hoped and presumed, however, that mutual interest would
dictate a concert in this respect which would avoid any material
inconvenience. The inference from the whole is, that the individual
States would, under the proposed Constitution, retain an independent
and uncontrollable authority to raise revenue to any extent of which
they may stand in need, by every kind of taxation, except duties on
imports and exports. It will be shown in the next paper that this
CONCURRENT JURISDICTION in the article of taxation was the only
admissible substitute for an entire subordination, in respect to
this branch of power, of the State authority to that of the Union.
PUBLIUS.

 

FEDERALIST No. 34

The Same Subject Continued
(Concerning the General Power of Taxation)
From the New York Packet.
Friday, January 4, 1788.

HAMILTON

To the People of the State of New York:
I FLATTER myself it has been clearly shown in my last number
that the particular States, under the proposed Constitution, would
have COEQUAL authority with the Union in the article of revenue,
except as to duties on imports. As this leaves open to the States
far the greatest part of the resources of the community, there can
be no color for the assertion that they would not possess means as
abundant as could be desired for the supply of their own wants,
independent of all external control. That the field is sufficiently
wide will more fully appear when we come to advert to the
inconsiderable share of the public expenses for which it will fall
to the lot of the State governments to provide.
To argue upon abstract principles that this co-ordinate
authority cannot exist, is to set up supposition and theory against
fact and reality. However proper such reasonings might be to show
that a thing OUGHT NOT TO EXIST, they are wholly to be rejected when
they are made use of to prove that it does not exist contrary to the
evidence of the fact itself. It is well known that in the Roman
republic the legislative authority, in the last resort, resided for
ages in two different political bodies not as branches of the same
legislature, but as distinct and independent legislatures, in each
of which an opposite interest prevailed: in one the patrician; in
the other, the plebian. Many arguments might have been adduced to
prove the unfitness of two such seemingly contradictory authorities,
each having power to ANNUL or REPEAL the acts of the other. But a
man would have been regarded as frantic who should have attempted at
Rome to disprove their existence. It will be readily understood
that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA.
The former, in which the people voted by centuries, was so arranged
as to give a superiority to the patrician interest; in the latter,
in which numbers prevailed, the plebian interest had an entire
predominancy. And yet these two legislatures coexisted for ages,
and the Roman republic attained to the utmost height of human
greatness.
In the case particularly under consideration, there is no such
contradiction as appears in the example cited; there is no power on
either side to annul the acts of the other. And in practice there
is little reason to apprehend any inconvenience; because, in a
short course of time, the wants of the States will naturally reduce
themselves within A VERY NARROW COMPASS; and in the interim, the
United States will, in all probability, find it convenient to
abstain wholly from those objects to which the particular States
would be inclined to resort.
To form a more precise judgment of the true merits of this
question, it will be well to advert to the proportion between the
objects that will require a federal provision in respect to revenue,
and those which will require a State provision. We shall discover
that the former are altogether unlimited, and that the latter are
circumscribed within very moderate bounds. In pursuing this
inquiry, we must bear in mind that we are not to confine our view to
the present period, but to look forward to remote futurity.
Constitutions of civil government are not to be framed upon a
calculation of existing exigencies, but upon a combination of these
with the probable exigencies of ages, according to the natural and
tried course of human affairs. Nothing, therefore, can be more
fallacious than to infer the extent of any power, proper to be
lodged in the national government, from an estimate of its immediate
necessities. There ought to be a CAPACITY to provide for future
contingencies as they may happen; and as these are illimitable in
their nature, it is impossible safely to limit that capacity. It is
true, perhaps, that a computation might be made with sufficient
accuracy to answer the purpose of the quantity of revenue requisite
to discharge the subsisting engagements of the Union, and to
maintain those establishments which, for some time to come, would
suffice in time of peace. But would it be wise, or would it not
rather be the extreme of folly, to stop at this point, and to leave
the government intrusted with the care of the national defense in a
state of absolute incapacity to provide for the protection of the
community against future invasions of the public peace, by foreign
war or domestic convulsions? If, on the contrary, we ought to
exceed this point, where can we stop, short of an indefinite power
of providing for emergencies as they may arise? Though it is easy
to assert, in general terms, the possibility of forming a rational
judgment of a due provision against probable dangers, yet we may
safely challenge those who make the assertion to bring forward their
data, and may affirm that they would be found as vague and uncertain
as any that could be produced to establish the probable duration of
the world. Observations confined to the mere prospects of internal
attacks can deserve no weight; though even these will admit of no
satisfactory calculation: but if we mean to be a commercial people,
it must form a part of our policy to be able one day to defend that
commerce. The support of a navy and of naval wars would involve
contingencies that must baffle all the efforts of political
arithmetic.
Admitting that we ought to try the novel and absurd experiment
in politics of tying up the hands of government from offensive war
founded upon reasons of state, yet certainly we ought not to disable
it from guarding the community against the ambition or enmity of
other nations. A cloud has been for some time hanging over the
European world. If it should break forth into a storm, who can
insure us that in its progress a part of its fury would not be spent
upon us? No reasonable man would hastily pronounce that we are
entirely out of its reach. Or if the combustible materials that now
seem to be collecting should be dissipated without coming to
maturity, or if a flame should be kindled without extending to us,
what security can we have that our tranquillity will long remain
undisturbed from some other cause or from some other quarter? Let
us recollect that peace or war will not always be left to our
option; that however moderate or unambitious we may be, we cannot
count upon the moderation, or hope to extinguish the ambition of
others. Who could have imagined at the conclusion of the last war
that France and Britain, wearied and exhausted as they both were,
would so soon have looked with so hostile an aspect upon each other?
To judge from the history of mankind, we shall be compelled to
conclude that the fiery and destructive passions of war reign in the
human breast with much more powerful sway than the mild and
beneficent sentiments of peace; and that to model our political
systems upon speculations of lasting tranquillity, is to calculate
on the weaker springs of the human character.
What are the chief sources of expense in every government? What
has occasioned that enormous accumulation of debts with which
several of the European nations are oppressed? The answers plainly
is, wars and rebellions; the support of those institutions which
are necessary to guard the body politic against these two most
mortal diseases of society. The expenses arising from those
institutions which are relative to the mere domestic police of a
state, to the support of its legislative, executive, and judicial
departments, with their different appendages, and to the
encouragement of agriculture and manufactures (which will comprehend
almost all the objects of state expenditure), are insignificant in
comparison with those which relate to the national defense.
In the kingdom of Great Britain, where all the ostentatious
apparatus of monarchy is to be provided for, not above a fifteenth
part of the annual income of the nation is appropriated to the class
of expenses last mentioned; the other fourteen fifteenths are
absorbed in the payment of the interest of debts contracted for
carrying on the wars in which that country has been engaged, and in
the maintenance of fleets and armies. If, on the one hand, it
should be observed that the expenses incurred in the prosecution of
the ambitious enterprises and vainglorious pursuits of a monarchy
are not a proper standard by which to judge of those which might be
necessary in a republic, it ought, on the other hand, to be remarked
that there should be as great a disproportion between the profusion
and extravagance of a wealthy kingdom in its domestic
administration, and the frugality and economy which in that
particular become the modest simplicity of republican government.
If we balance a proper deduction from one side against that which
it is supposed ought to be made from the other, the proportion may
still be considered as holding good.
But let us advert to the large debt which we have ourselves
contracted in a single war, and let us only calculate on a common
share of the events which disturb the peace of nations, and we shall
instantly perceive, without the aid of any elaborate illustration,
that there must always be an immense disproportion between the
objects of federal and state expenditures. It is true that several
of the States, separately, are encumbered with considerable debts,
which are an excrescence of the late war. But this cannot happen
again, if the proposed system be adopted; and when these debts are
discharged, the only call for revenue of any consequence, which the
State governments will continue to experience, will be for the mere
support of their respective civil list; to which, if we add all
contingencies, the total amount in every State ought to fall
considerably short of two hundred thousand pounds.
In framing a government for posterity as well as ourselves, we
ought, in those provisions which are designed to be permanent, to
calculate, not on temporary, but on permanent causes of expense. If
this principle be a just one our attention would be directed to a
provision in favor of the State governments for an annual sum of
about two hundred thousand pounds; while the exigencies of the
Union could be susceptible of no limits, even in imagination. In
this view of the subject, by what logic can it be maintained that
the local governments ought to command, in perpetuity, an EXCLUSIVE
source of revenue for any sum beyond the extent of two hundred
thousand pounds? To extend its power further, in EXCLUSION of the
authority of the Union, would be to take the resources of the
community out of those hands which stood in need of them for the
public welfare, in order to put them into other hands which could
have no just or proper occasion for them.
Suppose, then, the convention had been inclined to proceed upon
the principle of a repartition of the objects of revenue, between
the Union and its members, in PROPORTION to their comparative
necessities; what particular fund could have been selected for the
use of the States, that would not either have been too much or too
little too little for their present, too much for their future
wants? As to the line of separation between external and internal
taxes, this would leave to the States, at a rough computation, the
command of two thirds of the resources of the community to defray
from a tenth to a twentieth part of its expenses; and to the Union,
one third of the resources of the community, to defray from nine
tenths to nineteen twentieths of its expenses. If we desert this
boundary and content ourselves with leaving to the States an
exclusive power of taxing houses and lands, there would still be a
great disproportion between the MEANS and the END; the possession
of one third of the resources of the community to supply, at most,
one tenth of its wants. If any fund could have been selected and
appropriated, equal to and not greater than the object, it would
have been inadequate to the discharge of the existing debts of the
particular States, and would have left them dependent on the Union
for a provision for this purpose.
The preceding train of observation will justify the position
which has been elsewhere laid down, that “A CONCURRENT JURISDICTION
in the article of taxation was the only admissible substitute for an
entire subordination, in respect to this branch of power, of State
authority to that of the Union.” Any separation of the objects of
revenue that could have been fallen upon, would have amounted to a
sacrifice of the great INTERESTS of the Union to the POWER of the
individual States. The convention thought the concurrent
jurisdiction preferable to that subordination; and it is evident
that it has at least the merit of reconciling an indefinite
constitutional power of taxation in the Federal government with an
adequate and independent power in the States to provide for their
own necessities. There remain a few other lights, in which this
important subject of taxation will claim a further consideration.
PUBLIUS.

 

 

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