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.  Add New York and Connecticut to the foregoing seven, and theywill be less than a majority.