FEDERALIST No. 16



The Same Subject Continued

(The Insufficiency of the Present Confederation to Preserve the Union)

From the New York Packet.

Tuesday, December 4, 1787.



HAMILTON



To the People of the State of New York:



THE tendency of the principle of legislation for States, or communities,

in their political capacities, as it has been exemplified by the

experiment we have made of it, is equally attested by the events which

have befallen all other governments of the confederate kind, of which we

have any account, in exact proportion to its prevalence in those

systems. The confirmations of this fact will be worthy of a distinct and

particular examination. I shall content myself with barely observing

here, that of all the confederacies of antiquity, which history has

handed down to us, the Lycian and Achaean leagues, as far as there

remain vestiges of them, appear to have been most free from the fetters

of that mistaken principle, and were accordingly those which have best

deserved, and have most liberally received, the applauding suffrages of

political writers.



This exceptionable principle may, as truly as emphatically, be styled

the parent of anarchy: It has been seen that delinquencies in the

members of the Union are its natural and necessary offspring; and that

whenever they happen, the only constitutional remedy is force, and the

immediate effect of the use of it, civil war.



It remains to inquire how far so odious an engine of government, in its

application to us, would even be capable of answering its end. If there

should not be a large army constantly at the disposal of the national

government it would either not be able to employ force at all, or, when

this could be done, it would amount to a war between parts of the

Confederacy concerning the infractions of a league, in which the

strongest combination would be most likely to prevail, whether it

consisted of those who supported or of those who resisted the general

authority. It would rarely happen that the delinquency to be redressed

would be confined to a single member, and if there were more than one

who had neglected their duty, similarity of situation would induce them

to unite for common defense. Independent of this motive of sympathy, if

a large and influential State should happen to be the aggressing member,

it would commonly have weight enough with its neighbors to win over some

of them as associates to its cause. Specious arguments of danger to the

common liberty could easily be contrived; plausible excuses for the

deficiencies of the party could, without difficulty, be invented to

alarm the apprehensions, inflame the passions, and conciliate the

good-will, even of those States which were not chargeable with any

violation or omission of duty. This would be the more likely to take

place, as the delinquencies of the larger members might be expected

sometimes to proceed from an ambitious premeditation in their rulers,

with a view to getting rid of all external control upon their designs of

personal aggrandizement; the better to effect which it is presumable

they would tamper beforehand with leading individuals in the adjacent

States. If associates could not be found at home, recourse would be had

to the aid of foreign powers, who would seldom be disinclined to

encouraging the dissensions of a Confederacy, from the firm union of

which they had so much to fear. When the sword is once drawn, the

passions of men observe no bounds of moderation. The suggestions of

wounded pride, the instigations of irritated resentment, would be apt to

carry the States against which the arms of the Union were exerted, to

any extremes necessary to avenge the affront or to avoid the disgrace of

submission. The first war of this kind would probably terminate in a

dissolution of the Union.



This may be considered as the violent death of the Confederacy. Its more

natural death is what we now seem to be on the point of experiencing, if

the federal system be not speedily renovated in a more substantial form.

It is not probable, considering the genius of this country, that the

complying States would often be inclined to support the authority of the

Union by engaging in a war against the non-complying States. They would

always be more ready to pursue the milder course of putting themselves

upon an equal footing with the delinquent members by an imitation of

their example. And the guilt of all would thus become the security of

all. Our past experience has exhibited the operation of this spirit in

its full light. There would, in fact, be an insuperable difficulty in

ascertaining when force could with propriety be employed. In the article

of pecuniary contribution, which would be the most usual source of

delinquency, it would often be impossible to decide whether it had

proceeded from disinclination or inability. The pretense of the latter

would always be at hand. And the case must be very flagrant in which its

fallacy could be detected with sufficient certainty to justify the harsh

expedient of compulsion. It is easy to see that this problem alone, as

often as it should occur, would open a wide field for the exercise of

factious views, of partiality, and of oppression, in the majority that

happened to prevail in the national council.



It seems to require no pains to prove that the States ought not to

prefer a national Constitution which could only be kept in motion by the

instrumentality of a large army continually on foot to execute the

ordinary requisitions or decrees of the government. And yet this is the

plain alternative involved by those who wish to deny it the power of

extending its operations to individuals. Such a scheme, if practicable

at all, would instantly degenerate into a military despotism; but it

will be found in every light impracticable. The resources of the Union

would not be equal to the maintenance of an army considerable enough to

confine the larger States within the limits of their duty; nor would the

means ever be furnished of forming such an army in the first instance.

Whoever considers the populousness and strength of several of these

States singly at the present juncture, and looks forward to what they

will become, even at the distance of half a century, will at once

dismiss as idle and visionary any scheme which aims at regulating their

movements by laws to operate upon them in their collective capacities,

and to be executed by a coercion applicable to them in the same

capacities. A project of this kind is little less romantic than the

monster-taming spirit which is attributed to the fabulous heroes and

demi-gods of antiquity.



Even in those confederacies which have been composed of members smaller

than many of our counties, the principle of legislation for sovereign

States, supported by military coercion, has never been found effectual.

It has rarely been attempted to be employed, but against the weaker

members; and in most instances attempts to coerce the refractory and

disobedient have been the signals of bloody wars, in which one half of

the confederacy has displayed its banners against the other half.



The result of these observations to an intelligent mind must be clearly

this, that if it be possible at any rate to construct a federal

government capable of regulating the common concerns and preserving the

general tranquillity, it must be founded, as to the objects committed to

its care, upon the reverse of the principle contended for by the

opponents of the proposed Constitution. It must carry its agency to the

persons of the citizens. It must stand in need of no intermediate

legislations; but must itself be empowered to employ the arm of the

ordinary magistrate to execute its own resolutions. The majesty of the

national authority must be manifested through the medium of the courts

of justice. The government of the Union, like that of each State, must

be able to address itself immediately to the hopes and fears of

individuals; and to attract to its support those passions which have the

strongest influence upon the human heart. It must, in short, possess all

the means, and have aright to resort to all the methods, of executing

the powers with which it is intrusted, that are possessed and exercised

by the government of the particular States.



To this reasoning it may perhaps be objected, that if any State should

be disaffected to the authority of the Union, it could at any time

obstruct the execution of its laws, and bring the matter to the same

issue of force, with the necessity of which the opposite scheme is

reproached.



The pausibility of this objection will vanish the moment we advert to

the essential difference between a mere NON-COMPLIANCE and a DIRECT and

ACTIVE RESISTANCE. If the interposition of the State legislatures be

necessary to give effect to a measure of the Union, they have only NOT

TO ACT, or TO ACT EVASIVELY, and the measure is defeated. This neglect

of duty may be disguised under affected but unsubstantial provisions, so

as not to appear, and of course not to excite any alarm in the people

for the safety of the Constitution. The State leaders may even make a

merit of their surreptitious invasions of it on the ground of some

temporary convenience, exemption, or advantage.



But if the execution of the laws of the national government should not

require the intervention of the State legislatures, if they were to pass

into immediate operation upon the citizens themselves, the particular

governments could not interrupt their progress without an open and

violent exertion of an unconstitutional power. No omissions nor evasions

would answer the end. They would be obliged to act, and in such a manner

as would leave no doubt that they had encroached on the national rights.

An experiment of this nature would always be hazardous in the face of a

constitution in any degree competent to its own defense, and of a people

enlightened enough to distinguish between a legal exercise and an

illegal usurpation of authority. The success of it would require not

merely a factious majority in the legislature, but the concurrence of

the courts of justice and of the body of the people. If the judges were

not embarked in a conspiracy with the legislature, they would pronounce

the resolutions of such a majority to be contrary to the supreme law of

the land, unconstitutional, and void. If the people were not tainted

with the spirit of their State representatives, they, as the natural

guardians of the Constitution, would throw their weight into the

national scale and give it a decided preponderancy in the contest.

Attempts of this kind would not often be made with levity or rashness,

because they could seldom be made without danger to the authors, unless

in cases of a tyrannical exercise of the federal authority.



If opposition to the national government should arise from the

disorderly conduct of refractory or seditious individuals, it could be

overcome by the same means which are daily employed against the same

evil under the State governments. The magistracy, being equally the

ministers of the law of the land, from whatever source it might emanate,

would doubtless be as ready to guard the national as the local

regulations from the inroads of private licentiousness. As to those

partial commotions and insurrections, which sometimes disquiet society,

from the intrigues of an inconsiderable faction, or from sudden or

occasional illhumors that do not infect the great body of the community

the general government could command more extensive resources for the

suppression of disturbances of that kind than would be in the power of

any single member. And as to those mortal feuds which, in certain

conjunctures, spread a conflagration through a whole nation, or through

a very large proportion of it, proceeding either from weighty causes of

discontent given by the government or from the contagion of some violent

popular paroxysm, they do not fall within any ordinary rules of

calculation. When they happen, they commonly amount to revolutions and

dismemberments of empire. No form of government can always either avoid

or control them. It is in vain to hope to guard against events too

mighty for human foresight or precaution, and it would be idle to object

to a government because it could not perform impossibilities.



PUBLIUS