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



1. This, as nearly as I can recollect, was the sense of his speech on

introducing the last bill.



2. Encyclopedia, article "Empire."



3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South

Carolina, and Maryland are a majority of the whole number of the States,

but they do not contain one third of the people.



4. Add New York and Connecticut to the foregoing seven, and they will be

less than a majority.