These eight essays form the second major division of The Federalist Papers.
After establishing the great advantages of Union in the first fourteen numbers, Hamilton (with help from Madison on Nos. 18–20) now turns to the fatal weaknesses of the existing government under the Articles of Confederation.
The central argument is clear and relentless: the Confederation is not merely imperfect — it is radically defective.
Its fundamental flaw is that it legislates for states in their corporate capacity rather than for the individual citizens.
As a result, the national government can only request, never command.
It has no real power to raise revenue, enforce treaties, regulate commerce, or compel obedience.
The consequences are already visible: unpaid debts, national humiliation, commercial chaos, and the growing danger of disunion.
Federalist 15 opens the critique.
Nos. 16 and 17 show why applying federal authority directly to individuals is both necessary and safe.
Nos. 18–20 examine historical confederacies (Greek, German, Polish, Swiss, and Dutch) to prove that weak leagues always fail.
Nos. 21 and 22 complete the diagnosis by detailing the remaining structural defects:
• lack of a sanction for the laws
• absence of a mutual guarantee
• unequal representation
• and the inability to regulate commerce.
By the end of Federalist 22 the reader is left with an unavoidable conclusion: the Articles of Confederation cannot preserve the Union.
A new and more energetic government is required.
[Ed. note: On this site the full modern-English text of each paper appears below. The language has been carefully updated for clarity while remaining completely faithful to every original argument. Most paragraphs have been broken into shorter sentences for easier reading and study.]
Federalist 15: Our Former Government Was Fatally Flawed
THE POINT NEXT TO BE EXAMINED is why the Articles of Confederation were insufficient to the preserve the Union of the States.
Although no one has disputed the proposition, a few observations are in order, since we had reached almost the last stage of national humiliation under that Confederation.
The Confederation violated contracts and defaulted on its war debts.
It allowed Britain to remain in territories which – by express stipulations – ought long since to have been surrendered, to the prejudice of our interests and rights.
We were in no condition to resent or repel aggression because we had neither troops, nor a treasury, nor a government.
We were not even in a condition to remonstrate with dignity.
We were entitled by nature and compact to a free participation in the navigation of the Mississippi, but Spain excluded us from it.
Our public credit – an indispensable resource in time of public danger – was abandoned as desperate and irretrievable.
Our commerce – of great importance to national wealth – was at the lowest point of declension.
Our former government was so imbecilic that no foreign power respected or would entreat with it, depriving us of a safeguard against foreign encroachments.
Our ambassadors abroad were mere pageants of mimic sovereignty.
We suffered a violent and unnatural decrease in the value of land, which surely was a symptom of national distress.
The price of improved land in most parts of the country was much lower than attributable to the quantity of wasteland at market.
It could only be fully explained by the alarmingly prevalent want of private and public confidence among all ranks, which has a direct tendency to depreciate property of every kind.
Private credit – the friend and patron of industry – was reduced within the narrowest limits, more so from the prevailing opinion of insecurity than from scarcity of money.
To this melancholy situation were we led by the very maxims and councils who also sought to deter us from adopting the Constitution.
Not content with having conducted us to the brink of a precipice, our opponents were resolved to plunge us into the abyss that awaited us below.
These facts produced a general assent to existence of material defects in our former national system.
It was at that point where we stood firm for our safety, tranquility, dignity, and reputation – impelled by every motive that ought to influence an enlightened People.
We at last broke the fatal charm which too long seduced us from the paths of felicity and prosperity
The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.
The adversaries of the Constitution strenuously opposed conferring upon the United States the powers to remedy the deficiencies of the Confederation.
These adversaries aimed at things repugnant and irreconcilable: augmentation of Federal authority without a diminution of State authority, and sovereignty in the Federal government but with complete independence in the States.
They cherished with blind devotion the political monster of an imperium in imperio – of individual sovereign States within a sovereign Federal government.
Thus it becomes necessary to display fully the principal defects of the Confederation, in order to show the evils we experienced did not proceed from minute or partial imperfections, but from fundamental errors in the structure of the building, which could not be amended other than by altering its main pillars.
The Need to Extend Federal Governmental Control Over Individuals
The great and radical vice of the Confederation was that it authorized Federal legislation directed at States and governments in their corporate or collective capacities, but did not authorize legislation directed at the individuals of whom they consisted.
Although this principle does not run through all the powers delegated to the United States, it pervades and governs those on which the efficacy of the rest depends.
Except as to the rule of appointment, the Confederation had an indefinite discretion to make requisitions for men and money from the States, but it lacked authority to raise either by the use of regulations extending to the individual citizens of the States.
In theory the regulations of the Confederation concerning those objects were binding on the States, but in practice they were mere recommendations which the States observed or disregarded at their option.
The capriciousness of the human mind is singularly shown by those who insisted we could not abandon these weaknesses of the Confederation, even though all the evidence and experience demonstrated that these weaknesses undermined the idea and very foundation of government.
In the end, these opponents would have substituted the violent and sanguinary agency of the sword to the mild influence of the magistracy.
Europe’s Experience with Treaties Dependent on Good Faith
There is nothing absurd or impracticable in the idea of a league or alliance between independent nations for certain defined purposes precisely stated in a treaty regulating all the details of time, place, circumstance, and quantity; leaving nothing to future discretion, and depending for its execution on the good faith of the parties.
Compacts of this kind exist among all civilized nations – subject to the usual vicissitudes of peace and war (and of treaty observance and non-observance) – as the interests or passions of the contracting powers dictate.
In the years after 1700 there was an epidemical rage in Europe for this species of compacts, from which the politicians of the times fondly hoped for benefits that never materialized.
All the resources of negotiation were exhausted with a view to establishing the equilibrium of power and the peace of that part of the world.
Triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion.
But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
In the Eighteen Century, triple and quadruple alliances were formed upon the assumption that general considerations of peace and justice would check the impulse of immediate interest or passion. But these treaties were soon broken, giving an instructive but afflicting lesson to humanity of how little dependence is to be placed upon treaties having no other sanction than the obligations of good faith.
Limited Treaties Between the States Are Insufficient
If the particular States had been disposed to stand in a similar relation to each other – and to drop the project of a general discretionary superintendence – the scheme would have indeed been pernicious, entailing upon us all the mischiefs that flow when the competing interests or passions if the contracting States conflicted.
But at least such a plan would have had the merit of being consistent and practicable. If we had abandoned all views towards a Federal government, it would have brought us to a simple alliance offensive and defensive, and placed us in a situation alternately to be friends and enemies of each other, as our mutual jealousies and rivalries – nourished by the intrigues of foreign nations – would have prescribed to us.
But we were unwilling to be placed in this perilous situation, and still desired to adhere to the superintending power of a Federal government under the direction of a common council.
We therefore resolved to incorporate into our plan those ingredients which distinguish a league from a government: we extended the authority of the United States to individual citizens – who are the only proper objects of government.
A Penalty for an Illegal Act Must Be Enforceable Against the Offending Individual
The penalty, whatever it may be, can be inflicted in only two ways: by the agency of the courts and ministers of justice, or by military force; that is, by the coercion of the magistracy, or by the coercion of arms.
Coercion by courts and justice ministers can apply only to individuals; coercion by military force must be employed against bodies politic, communities, or states.
It must be evident there is no process of a court by which the observance of the laws can, in the last resort, be enforced.
Sentences may be pronounced for violations of their duty; but these sentences can only be carried into execution by the sword. In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war, and military execution must be the only instrument of civil obedience.
Such a state of things can certainly not deserve the name of government, nor would any prudent individual choose to commit personal happiness to it.
The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
There was a time when we were told that breaches of the regulations of the Federal authority by the States were not to be expected, and that a sense of common interest would preside over the conduct of the respective members, and beget a full compliance with all the constitutional requisitions of the Confederation.
Experience – the best oracle of wisdom – has proven these assurances to be as wild as those heard earlier in Europe and now in opposition to the Constitution.
A viewpoint that relies on good faith alone for compliance betrays an ignorance of the true springs by which human conduct is actuated, and belies the original inducements to the establishment of civil power.
Why has government been instituted at all?
Because the passions of humans will not conform to the dictates of reason and justice without constraint.
Has it been found that bodies of individuals act with more rectitude or greater disinterestedness than single individuals?
Every accurate observer of the human conduct has concluded the opposite is true, and for obvious reasons.
When the infamy of a bad action is to be divided among a number of individuals rather than fall singly upon one, a sound regard for one’s reputation has a less active influence.
The spirit of faction – which is apt to mingle its poison in the deliberations of all bodies of humans – will often hurry its constituent members into improprieties and excesses, for which they would blush in a private capacity.
Subordinate Political Bodies Often Resist a Superior Sovereign Power
In addition to all this, the nature of sovereign power includes an impatience for control. All those who exercise sovereign power look with an evil eye upon any external attempt to restrain or direct its operation.
In response to this spirit of control, every inferior political association formed upon the principle of uniting in a common interest will have a tendency to fly off from the common center of the ultimate sovereign.
This tendency is easily explained: its origin is the love of power.
Power that is controlled or abridged is almost always the rival and enemy of that power by which it is controlled or abridged.
This simple proposition teaches us how little reason there is to expect that persons entrusted with the administration of the affairs of a particular member of a confederacy will at all times be ready to execute – with perfect good-humor and an unbiased regard to the public weal – the resolutions or decrees of the general authority.
The reverse results from the very constitution of human nature.
If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.
The rulers of each State – whether or not they have a constitutional right to do so – will themselves undertake to judge the propriety of the Federal measures.
They will naturally consider the conformity of the thing proposed or required to their immediate interests or aims, and the momentary conveniences or inconveniences that would attend its adoption.
All this will be done in a spirit of interested and suspicious scrutiny, with a strong predilection in favor of local objects.
The knowledge essential to a right judgment – the national circumstances and reasons of state which led to an enactment – will be absent, and this can hardly fail to mislead the local decision.
Furthermore, the same process must be repeated in every State, and the execution of the plans, framed by the councils of the whole, will always fluctuate on the discretion of the ill-informed and prejudiced opinion of every part.
Anyone conversant in the proceedings of popular assemblies has seen how difficult it is to bring them to harmonious resolutions on important points, in the absence exterior pressure of circumstances.
From this one can readily conceive how impossible it would be to induce a number of such assemblies – deliberating at a distance from each other, at different times, and under different impressions – to cooperate in the same views and pursuits.
Under the Articles of Confederation, the concurrence of thirteen distinct sovereign wills was required to complete the execution of every important measure that proceeded from the Union.
As we saw, the measures of that Confederation were not executed; the delinquencies of the States incrementally matured themselves to an extreme, which at length arrested all the wheels of the national government, and brought them to an awful stand.
Until the States could agree upon a more substantial substitute for the shadow of a Federal government, its Congresses scarcely possessed the means of keeping up the forms of administration.
If the measures of the Constitution cannot be executed without the intervention of each constituent State government, there will be little prospect of their being executed at all.
Things did not proceed to this desperate extremity all at once.
At first there were only unequal and disproportionate degrees of compliance with the requisitions of the Confederation.
The greater deficiencies of some States furnished the temptation to and pretext for lesser compliance by the least delinquent States: why should they do more in proportion than those States who had embarked with them on the same political voyage, or consent to bear more than our proper share of the common burden?
These were suggestions human selfishness could not withstand, especially since consequences for noncompliance were remote.
Yielding to the persuasive voice of immediate interest or convenience, each State successively withdrew its support of the Confederation, until the frail and tottering edifice seemed ready to fall upon our heads and crush us beneath its ruins.
Hamilton
Federalist 16: Anarchy Results When Federal Systems Lack Power Over Subordinate Individuals
WHEN A CENTRAL AUTHORITY or government directs its legislation to lesser states or communities in their political capacities – as opposed to directing it to the individuals comprising those states or communities – the tendency is towards anarchy, as exemplified both by the experiment we have made of it, and the events which have befallen all other federal governments in exact proportion to its prevalence in those systems.
Legislation directed to states or communities invariably leads to delinquencies by one or more of its members.
The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.
The Use of Force Is a Far from Certain Remedy for Breaches by Subordinate Governments
It was uncertain whether the use of force would even have remedied the ills which weakened our former confederacy of States.
In the absence of a large army constantly at the disposal of the national government, force could not be employed at all.
If an army could have been raised, it would have resulted in a war between parts of the former confederacy.
Legislation directed to states or communities invariably leads to delinquencies by one or more of its members. The only constitutional remedy for such delinquencies is force, and the immediate effect of its use is civil war.
In such a war, the strongest combination would most likely have prevailed, whether consisting of those who supported or of those who resisted the general authority.
Since the delinquencies to be redressed would not likely be confined to a single member, the similarity of situation among those who had neglected their duty would have induced them to unite for common defense.
Aside from this motive of sympathy, if a large and influential State should happen to have been the initial aggressor, it would likely have weight enough with its neighbors to win over some of them as associates.
It would have been easy to contrive specious arguments about dangers to the common liberty and invent plausible excuses for the delinquency, in order to alarm the apprehensions, inflame the passions, and conciliate the goodwill even of those States not chargeable with any violation or omission of duty.
This would have been the more likely course of the larger members, perhaps motivated by the ambitious premeditation of its rulers to break free from all external control upon their designs of personal aggrandizement.
To achieve this end, these rulers presumably would have pleaded beforehand with leading individuals of adjacent States.
If associates to their scheme could not be found at home, recourse would be had to the aid of foreign powers, who would seldom be disinclined to encourage the dissensions of a confederacy they would otherwise rightly fear.
Once the sword is drawn, the passions of humans observe no bounds of moderation.
The States against which the arms of the union were exerted would have been carried by wounded pride and irritated resentment to any extreme necessary to avenge the affront or avoid the disgrace of submission.
The first war of this kind would probably have terminated in a violent dissolution of the union.
A more natural death of the former confederacy of States is what we now seem to be on the point of experiencing, unless the Federal system is speedily renovated in a more substantial form.
Considering the genius of this country, it would be improbable for complying States to support the authority of the Union by engaging in a war against the noncomplying 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, due to the insuperable difficulty in ascertaining when force could with propriety be employed.
In the case of pecuniary contribution to the national government – which was the most usual source of delinquency – it was often impossible to decide whether it had proceeded from disinclination or inability.
The pretense of inability would always be advanced, and seldom refuted, except in cases where the fallacy was flagrant.
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, partiality, and oppression, among any majority that happened to prevail in the national council.
Once the sword is drawn, the passions of humans observe no bounds of moderation.
It requires no proof that 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.
If such a scheme were even practicable, it would instantly degenerate into a military despotism.
But such a scheme will be found in every light impracticable.
To begin with, the resources of the Union are not and 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.
Anyone who 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.
The principle of legislation for sovereign states, supported by military coercion, has proven ineffectual even in those confederacies composed of members smaller than many of our counties.
Military coercion has been rarely employed, and then only against the weaker members.
Such 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.
Federal Law Must Extend to Individual Citizens
From these observations, intelligent minds must conclude that a Federal government capable of regulating the common concerns and preserving the general tranquility must be founded upon the reverse of the principle upon which the opponents of the Constitution rely.
The Federal government must carry its agency to the persons of the citizens.
It must stand in need of no intermediate legislation.
It must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions, and the majesty of the national authority must be manifested through the medium of the courts of justice.
The government of the United States, 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.
The United States must possess all the means, and have a right to resort to all the methods, of executing the powers with which it is entrusted, that are possessed and exercised by the government of the particular States.
Since Federal Law Applies to Individual Citizens, a Contrary State Law Would Be an Open and Violent Exertion of an Unconstitutional Power
It may be asserted in response that any State disaffected to the authority of the United States could obstruct the execution of its laws and thereby bring the matter to the same issue of force.
The objection itself loses force when we advert to the essential difference between a mere noncompliance and a direct and active resistance to the laws of the Federal government.
Where the interposition of the State legislatures is necessary to give effect to a measure of the United States, those legislatures need only not act, or to act evasively, to defeat the measure.
Such neglect of duty could be disguised under affected but unsubstantial provisions, so as not to appear to raise – and of course not excite – any alarm in the People for the safety of the Constitution.
The State leaders may even claim their surreptitious invasions are justified 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, State governments could not interrupt their progress without an open and violent exertion of an unconstitutional power.
No omissions or evasions could prove otherwise.
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 (1) an existing Constitution that is in any degree competent to its own defense, and (2) 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, except perhaps in the case of a tyrannical exercise of the Federal authority.
Refractory and Seditious Leaders of State Governments Would Be Subject to Prosecution by the Federal Executive Branch
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 executive magistracy – being equally the ministers of the law of the land, would doubtless be as ready to guard the national as the local regulations from the inroads of private licentiousness, from whatever source it might emanate.
As to those partial commotions and insurrections, which sometimes disquiet society – from intrigues of an inconsiderable faction, or sudden or occasional ill humors that do not infect the great body of the community, the Federal government could command more extensive resources for the suppression of disturbances of that kind than would be in the power of any single State.
It requires no proof that 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.
A Civil War Usually Results in Revolution or Dismemberment of Empire
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 dismemberment 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 is idle to object to a government because it could not perform impossibilities.
Hamilton
Federalist 17: Applying Federal Law to Individual State Citizens Will Not Result in an Unlimited Federal Government
ANOTHER OBJECTION made to the principle that Federal law ought to apply to the individual citizens of America is that it would tend to render the government of the United States too powerful, and enable it to absorb those residual authorities which are properly left to the States for local purposes.
Those Without Federal Power Falsely Assume Those with Federal Power Will Abuse It
The objection assumes the persons entrusted with the administration of the general government would be tempted to divest the States of such residuary authorities.
Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition.
The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.
The powers properly reserved for local legislation – the administration of private justice between the citizens of the same State, the supervision of agriculture, and other concerns of a similar nature – can never be desirable cares of general Federal power.
Federal councils disposed to usurp and exercise these residual powers would find the task as troublesome as successful in negating those residual powers; and for this reason the possession of them would contribute nothing to the dignity, importance, or splendor of the national government or their persons.
Even if I were to assume the existence base wantonness and lust of domination would beget such a disposition, the constituent body of the Congress – composed of representatives of all the States – would control the indulgence of so extravagant an appetite.
States Pose Greater Threats to Federal Power than Vice-Versa
The objection that the Federal government will become too powerful disregards that State governments can encroach upon the national authorities with greater ease than the national government can encroach upon the State authorities.
A State government will generally possess a greater degree of influence over the People if it administers its affairs with uprightness and prudence.
Allowing the utmost latitude to the love of power any reasonable person can desire, the regulation of the mere domestic police of a State appears to hold out slender allurements to ambition. The objects lodged in the national depository in the first instance – commerce, finance, negotiation, war, and the powers necessary thereto – comprehend all the objects which charm those minds governed by the passion for power.
Human affections are generally weaker in proportion to the distance or diffusiveness of the object.
Just as one is more attached to family than to neighborhood, and to neighborhood than to the community at large, the People of each State would be apt to feel a stronger connection to their local governments than to the government of the United States (unless the latter has a much better administration).
As a consequence, there is an inherent and intrinsic weakness in all federal constitutions, requiring detailed attention to their organization, in order to give them all the force compatible with the principles of liberty.
States Retain the Important Power and Control over the Ordinary Administration of Criminal and Civil Justice
While the diffusive construction of the Federal government partly contributes to the superiority of influence in favor of State governments, the chief cause of State superiority results from the nature of the objects to which the attention of the State administrations are directed.
This strength of local administrations lies in their superintendence of minute interests, which form so many rivulets of influence, running through every part of the society, that they cannot be particularized without involving a detail too tedious and uninteresting to compensate for the instruction it might afford.
There is, however, one transcendent advantage belonging to the province of the State governments which alone suffices to place the matter in a clear and satisfactory light: the ordinary administration of criminal and civil justice, which is the most powerful, universal, and attractive source of popular obedience and attachment.
The administration of criminal and civil justice – being the immediate and visible guardian of life and property – has its benefits and its terrors in constant activity before the public eye.
In regulating all those personal interests and familiar concerns to which the sensibility of individuals is more immediately awake, the administration of criminal and civil justice contributes more than any other circumstance to impressing upon the minds of the People affection, esteem, and reverence towards the government.
This great cement of society, diffused almost wholly through the channels of local governments, and independently of all other causes of influence), ensure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise – and not infrequently – dangerous rivals to the power of the United States.
The Federal Government Will Have Less Impact on Daily Lives than State Governments
On the other hand, the operations of the Federal government fall less immediately under the observation of the mass of the citizens.
The benefits of such operations will chiefly be perceived and attended to by speculative individuals.
Since the Federal operations will relate to more general interests, they will be less apt to come home to the feelings of the People; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment.
The Examples of the Feudal System and Scotland
The experience of all federal constitutions and analogous arrangements demonstrate exemplify these observations.
For example, ancient feudal systems – although they were not, strictly speaking, confederacies – partook of the nature of that species of association.
There was a common head, chieftain, or sovereign, whose authority extended over the whole nation; and a number of subordinate vassals, or feudatories, who had large portions of land allotted to them, and numerous trains of inferior vassals or retainers, who occupied and cultivated that land upon the tenure of fealty or obedience, to the persons from whom they held it.
Each principal vassal was a kind of sovereign within the area he controlled.
As a consequence there was a continual opposition to a general sovereign, resulting in frequent wars between the great barons or chief feudatories themselves.
Since the power of the head of the nation was commonly too weak to preserve the public peace or protect the people against the oppressions of their immediate lords, feudal anarchy ensued.
When the sovereign happened to have a vigorous, warlike temper and superior abilities, he would acquire a personal weight and influence, which answered, for the time, the purpose of a more regular authority, but generally the power of the barons triumphed over the power of the prince.
In many instances his dominion was entirely thrown off, and the great fiefs were erected into independent principalities or states.
In those instances in which the monarch finally prevailed over his vassals, his success was chiefly owing to the tyranny of those vassals over their dependents.
The barons or nobles – being equally the enemies of the sovereign and the oppressors of the common people – were dreaded and detested by both.
The mutual danger and mutual interest of the prince and the people effected a union between them fatal to the power of the aristocracy.
Had the nobles preserved the fidelity and devotion of their retainers and followers by a conduct of clemency and justice, their contests with the prince would almost always have ended in their favor, with the abridgment or subversion of royal authority.
This assertion is not founded merely in speculation or conjecture, for the example of Scotland, among others, illustrates its truth.
From that kingdom’s early days, the spirit of clanship united the nobles and their dependents as though they were kindred.
These ties rendered the aristocracy a constant overmatch for the power of the monarch, until England subdued its fierce and ungovernable spirit, and subordinated it to a more rational and energetic system of civil polity.
States May Be Compared to Feudal Baronies
The separate governments in a confederacy may aptly be compared with feudal baronies.
They will generally possess the confidence and goodwill of the People, and be disposed to oppose all encroachments of the national government.
In fact, the States would tend to counteract the legitimate and necessary Federal authority.
Both State and Federal governments would rival for power, but the State has large portions of the strength of the community concentrated into particular deposits, in one case at the disposal of individuals, in the other case at the disposal of political bodies.
Hamilton
Federalist 18: Two Confederacies from Greece Offer Valuable Lessons to the United States
HERE I DISCUSS HISTORICAL CONFEDERACIES bearing closest resemblance to the former Confederation of the American States.
I will discuss the German, Polish and Swiss confederacies in Federalist 19, and the confederacy of the United Netherlands in Federalist 20.
The Amphictyonic Council of Greece
The first instructive analogy is the confederacy of the Grecian republics of antiquity, associated under the Amphictyonic Council of Greece (“Council”).
From the best accounts transmitted of this celebrated Council, its members retained the character of independent and sovereign states, and had equal votes in the Council.
The Council had a general authority to propose and resolve whatever it judged necessary for the common welfare of the confederacy, to declare and carry on war, to decide all controversies between the members (including imposing fines on the aggressing party and employing the whole force of the confederacy against the disobedient), and to admit new members.
The Amphictyons were the guardian of religion and the immense riches belonging to the temple of Delphos, over which they had the right of jurisdiction to decide controversies between the inhabitants and those who came to consult the oracle.
To further the efficacy of the federal powers, a mutual oath was sworn to defend and protect the united cities, to punish the violators of this oath, and to inflict vengeance on sacrilegious despoilers of the temple.
Both in theory and writing, this apparatus of powers seemed amply sufficient for all general purposes.
In several material instances, though, the Council exceeded the powers enumerated in its articles of confederation.
The Amphictyons had in their hands the superstition of the times – which was one of the principal engines by which their government was maintained.
The Council also had a declared authority to use coercion against refractory cities, and the members were bound by oath to exert this authority on the necessary occasions.
The experiment proved very different from the theory.
The Council’s powers were administered by deputies appointed by the cities wholly in their political capacities, and exercised over them in the same capacities.
This error was the same one we experienced under our former Articles of Confederation.
From this error, weakness and disorder ensued, finally destroying the confederacy.
The more powerful members – instead of being kept in awe of and subordinate to the Council – tyrannized successively over all the other members.
Athens was the arbiter of Greece for 73 years, followed by the Lacedaemonians, who governed for 29 years. After the battle of Leuctra, the Thebans had their turn of domination.
The deputies of the strongest cities awed and frequently corrupted those of the weaker cities.
The members never acted in concert, even in the midst of defensive and dangerous wars with Persia and Macedon.
Some deputies were eternally the dupes or the hirelings of the common enemy.
The intervals of foreign war were filled up by domestic vicissitudes, convulsions, and carnage.
Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union. Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes.
After the war with the Persians (led by Xerxes) concluded, the Lacedaemonians demanded that a number of the cities be turned out of the confederacy, for their wartime unfaithfulness.
The Athenians saw that such a measure would lose them more allies than the Lacedaemonians, who would thereby become masters of the Council’s public deliberations.
The Athenians thus vigorously opposed and defeated the attempt.
This history proves not only the inefficiency of the union, but 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 in fact become mere satellites of the orbs of primary magnitude.
Had the Greeks been as wise as they were courageous, they would have availed themselves of the peace which followed their success against Persian arms to establish a closer union.
Instead, Athens and Sparta – inflated with the victories and the glory they had acquired – first became rivals and then enemies, causing each other infinitely more mischief than they had suffered from Xerxes.
Their mutual jealousies, fears, hatreds, and injuries culminated with the celebrated Peloponnesian war, which itself ended in the ruin and slavery of the Athenians, who had started it.
Philip of Macedon’s Successful Scheme to Control the Amphictyonic Council
When not at war, a weak government is ever agitated by internal dissensions.
These in turn never fail to bring on fresh calamities from abroad.
For example, when the Phocians ploughed up some consecrated ground belonging to the temple of Apollo, the Amphictyon Council imposed a fine on the sacrilegious offenders.
The Phocians – being abetted by Athens and Sparta – refused to submit to the decree.
Other cities undertook to maintain the authority of the Council and avenge the violated god. Being weaker, they invited the assistance of Philip of Macedon.
Unbeknownst to the Amphictyons, Philip had instigated the controversy.
He 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, he gained admission into the Council.
By his arts and his arms, he made himself master of the Amphictyonic confederacy.
When not at war, a weak government is ever agitated by internal dissensions. These in turn never fail to bring on fresh calamities from abroad.
Such were the consequences of the principle on which this league was founded, and which opponents of our Constitution would have us follow, to a similar end.
Had Greece 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
Another society of Grecian republics – known as the Achaean league – supplies us with valuable instruction.
That union was far more intimate, and its organization much wiser than in the Amphictyonic Council.
The cities comprising the league retained their municipal jurisdiction, appointed their own officers, and enjoyed a perfect equality.
The cities were represented in a senate, which had the sole and exclusive right of declaring peace and war, sending and receiving ambassadors, and entering into treaties and alliances.
The senate appointed a chief magistrate – or praetor, as he was called – who commanded their armies.
With the advice and consent of 10 senators, the praetor administered the government while the senate was in recess, and when it was assembled, he had a great share in its deliberations. (Their constitution initially designated two praetors would administer the league, but on trial, this was reduced to one.)
The cities of the league apparently shared the same laws, customs, weights, measures, and money.
When Lacedaemon was brought into the league by Philopoemen, the institutions and laws of Lycurgus of Sparta were abolished, and replaced with those of the Achaeans.
Prior to its entry to the Achaean league, Lacedaemon had been a member of the Amphictyonic confederacy, which had left her in the full exercise of her government and legislation.
This circumstance alone proves a very material difference in the genius of the two systems.
It is regrettable that only imperfect monuments remain of this curious political edifice.
If one could ascertain its interior structure and regular operation, it would contribute much to the science of operating a federal government.
One important fact is known about the Achaean league: from its inception, through its renovation by Aratus, and prior to its dissolution by the arts of Macedon, there was infinitely more 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.
One of our contemporaries, the French philosopher Abbé de Mably, says the popular government caused no disorders within the members of the Achaean league because it was tempered by the general authority and laws of the confederacy.
Nevertheless, faction did agitate the particular cities to a certain degree, and a due subordination and harmony did not reign in the general system, which is sufficiently displayed in the vicissitudes and fate of the republic.
The Achaean league arose while the Amphictyonic confederacy remained, but comprehended the less important cities only, and made little figure on the theater of Greece.
After the Amphictyonic confederacy became a victim to Macedon, the policies of Philip and Alexander spared the Achaean republic.
The successors to these princes, however, practiced the arts of division among the Achaeans.
Each city was seduced into a separate interest, and the union dissolved.
Some of the cities fell under the tyranny of Macedonian garrisons, while others under the tyranny of usurpers springing out of their own confusions.
Before long, though, shame and oppression awakened the Achaean love of liberty.
A few cities reunited, and others followed, as opportunities were found of cutting off their tyrants.
The league soon embraced almost the whole of Peloponnesus. Macedon witnessed this progress, but was hindered from stopping it by internal dissensions.
All Greece caught the enthusiasm and seemed ready to unite in one confederacy, when the jealousy and envy of Sparta and Athens to the rising glory of the Achaeans threw a fatal damp on the enterprise.
The dread of Macedonian power induced the Achaean 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, whose ambition led him to make an unprovoked attack on the neighboring Achaeans.
Sparta – as an enemy to Macedon – had interest enough with the Egyptian and Syrian princes to effect a breach of Achaean engagements with the league.
The Achaeans were now reduced to the dilemma of submitting to Cleomenes of Sparta, or of supplicating the aid of Macedon, its former oppressor to the north.
The Achaeans chose the aid of Macedon, which was again pleased to intermeddle in the affairs of its southern neighbors.
A Macedonian army quickly appeared, and Cleomenes was vanquished, but as so often happens, the Achaeans soon realized their victorious and powerful ally intended to be their master.
Philip – now on the throne of Macedon – no more than tolerated Achaean laws, and the Achaeans were soon provoked by his tyrannies, which led to fresh combinations among the Greeks.
Together with Aetolians and Athenians, the Achaeans erected the standard of opposition.
Notwithstanding this new support, the Achaeans found themselves unequal to the undertaking. Once more the Achaeans resorted 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, and Macedon subdued.
A new crisis to the Achaean league ensued when dissensions broke out among it members, which the Romans fostered. Inveigling their countrymen, popular leaders like Callicrates debased themselves to mere mercenary instruments of Rome.
To nourish further the discord and disorder, the Romans proclaimed universal liberty throughout Greece.
The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty.
By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces.
Such imbecility and distraction were introduced that the arms of Rome found little difficulty in completing the ruin their arts had commenced.
The Achaeans were cut to pieces and Achaia was loaded with chains, under which it still groans.
The Romans seduced members from the Achaean league by representing to their pride that league membership violated their sovereignty. By these arts the Achaean union – the last hope of Greece and the last hope of ancient liberty – was torn into pieces.
This important portion of history emphatically illustrates the tendency of federal bodies to induce anarchy among its members, than to impose tyranny from the head.
Madison and Hamilton
Federalist 19: Examination of the German, Polish and Swiss Confederacies
SEVERAL EUROPEAN CONFEDERATIONS OFFER more recent evidence than the examples of ancient confederacies discussed in Federalist 18.
Germany After Charlemagne
In the early ages of Christianity, Germany was occupied by seven distinct nations, none of which had a common chief.
One of the seven – the Franks – conquered the Gauls and established the kingdom now known as France.
In the ninth century, its warlike monarch – Charlemagne – carried his victorious arms in every direction, and Germany became a part of his vast dominions.
His principal Germanic vassals, whose fiefs had become hereditary, were permitted to continue participation in their national political bodies.
Charlemagne possessed the ensigns, dignity and reality of imperial power, but his sons dismembered the empire, and Germany was erected into a separate and independent empire.
Its leaders gradually threw off the yoke and advanced to sovereign jurisdiction and independence.
The force of imperial sovereignty was insufficient to restrain them, or to preserve the unity and tranquility of the empire. Furious private wars, accompanied with every species of calamity, were carried on between the different princes and states.
Unable to maintain the public order, the imperial authority declined by degrees until it was almost extinct in the anarchy which ensued during the long interval between the death of the last emperor of the Swabian line, and the accession of the first emperor of the Austrian lines, which arose to the southeast of Germany.
In the eleventh century the emperors enjoyed full sovereignty; but by the fifteenth they had little more than the symbols and decorations of power.
The Germanic Feudal System
Out of this feudal system (which itself has many of the important features of a confederacy) grew a federal system which constitutes the Germanic empire.
Its powers are vested (1) in a formal deliberative assembly known as a diet, which represents the component members of the confederacy; (2) in the emperor, who is the executive magistrate, with a negative on the decrees of the diet; and (3) in the imperial chamber and the aulic council, the two judicial tribunals having supreme jurisdiction in controversies which concern the empire, or which happen among its members.
Composition of the German Diet
The German diet possesses the general power of legislating for the empire, 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 degrading his sovereign rights and forfeiting his possessions.
The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire, imposing tolls and duties on their mutual intercourse without the consent of the emperor and diet, altering the value of money, doing injustice to one another, or affording assistance or retreat to disturbers of the public peace.
The ban applies to a violation of any of these restrictions.
A member of the diet – in his capacity as a member – is subject in all cases to be judged by the emperor and diet.
In his private capacity, jurisdiction over a member of the diet vests in the aulic council and imperial chamber.
Powers of the German Emperor
The prerogatives of the emperor are numerous, the most important being his exclusive right to make propositions to the diet and veto its resolutions, name ambassadors, confer dignities and titles, fill vacant electorates, found universities, grant privileges not injurious to the states of the empire, receive and apply the public revenues; and generally to watch over the public safety.
In certain cases, the electors form a council to him.
As emperor, he possesses no territory within the empire, nor receives any revenue for his support, but his powers still constitute him one of the most powerful princes in Europe.
The Germanic Feudal System in Practice
From this parade of constitutional powers, both in the representatives and head of this confederacy, one naturally would suppose it must form an exception to the general character which belongs to its kindred systems.
Yet nothing would be further from reality.
The fundamental principles on which it rests – the empire is a community of sovereigns, the diet is a representation of those sovereigns, and 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 – wars between the emperor and the princes and states, and 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 in whole or in part, of attempts to enforce them which are either altogether abortive or attended with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.
War in Germany
The history of Germany is a history of wars – wars between the emperor and the princes and states, and 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 in whole or in part, of attempts to enforce them which are either altogether abortive or attended with slaughter and desolation of the innocent along with the guilty, and of general imbecility, confusion, and misery.
In the sixteenth century, for example, the emperor, with one part of the empire on his side, was engaged against the other princes and states.
In one of the conflicts, the emperor himself was put to flight and very near made a prisoner by the elector of Saxony.
A 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 were 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.
German Disunity Is the Norm
Even if Germany happens to be more united by the emergency of self-defense, its situation remains deplorable.
Military preparations require tedious discussions arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies.
Before the diet can settle arrangements, the enemy is in the field, and before the federal troops are ready to take the field, they are retiring into winter quarters.
The small body of national troops – deemed necessary in time of peace – is not 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 has produced the experiment of dividing the empire into nine or ten circles or districts, giving each an interior organization, and charging them with the military execution of the laws against delinquent and contumacious members.
This experiment has served only 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.
The Example of the Duchy of Swabia
The scheme of military coercion is shown by the example of Donauwörth, a free and imperial city of the circle of Swabia, where its leader 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), he revived an antiquated claim, on the pretext that his ancestors had suffered the place to be dismembered from his territory.
The duke took possession of the city in his own name, then disarmed and punished the inhabitants, and reannexed the city to his domains.
The Emperor Has Kept Germany Together
One might inquire: What has so long kept this disjointed machine from falling entirely to pieces?
The answers are obvious: most of the members are weak and unwilling to expose themselves to the mercy of foreign powers; most of the principal members also are weak in comparison to the formidable powers all around them; the vast weight and influence the emperor derives from his separate and hereditary 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.
Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness
All these causes support a feeble and precarious union.
Foreign nations have long been interested in the events shaping Germany, occasionally even betraying their policy of perpetuating Germany’s anarchy and weakness.
The Example of Poland
If another example were needed of the calamities befalling central governments attempting to control local sovereigns, Poland provides striking proof.
This nation has found itself equally unfit for self-government and for self-defense – and long been at the mercy of its powerful neighbors, who recently annexed one third of its people and territories.
The Swiss Confederacy
Sometimes the Swiss cantons are cited as an instance of the stability of a confederacy, although it scarcely amounts to one.
They have neither common treasury, common troops (even in war), common coin, common judicatory, nor any other common mark of sovereignty.
The cantons are kept together by a catalogue of unusual circumstances, including the peculiarity of their topographical locations, their individual weakness and insignificancy, and their fear of powerful neighbors.
There are few sources of contention among the simple and homogeneous people.
They have a joint interest in their dependent possessions, and the mutual aid they offer and require for suppressing insurrections and rebellions.
Further, there is need of some regular and permanent provision for accommodating disputes among the cantons.
In such a dispute, the parties at variance each chooses four judges out of the neutral cantons, who (in case of disagreement) choose an umpire. This tribunal – under an oath of impartiality – pronounces a definitive sentence, which all the cantons are bound to enforce.
Whatever efficacy the Swiss union may have had in ordinary cases, it appears the moment a cause of difference sprang up – capable of trying its strength – it failed.
The controversies on the subject of religion have in three instances kindled violent and bloody contests and eventually severed the league.
Thereafter the Protestant and Catholic cantons have had their separate diets, where all the most important concerns are adjusted, leaving to the general diet little other than commercial proceedings.
The separation of the cantons had another consequence meriting attention: it produced opposite alliances with foreign powers.
Bern – at the head of the Protestant association – aligned with the United Provinces, while Lucerne – at the head of the Catholic association – sided with France.
Hamilton with the assistance of Madison
Federalist 20: The Confederacy of the United Netherlands
THE FINAL CONFEDERATION resembling the United States is the present-day United Netherlands.
Its contemporary lessons confirm those derived from those confederacies we have already reviewed.
United Netherlands
United Netherlands is a confederacy of republics (or more precisely aristocracies) consisting of seven coequal and sovereign states.
Each state (or province) is composed of equal and independent cities.
The union requires that the states to be unanimous, and in important cases, the cities also must be unanimous.
The sovereignty of the union is represented by the States-General, consisting usually of about fifty deputies appointed by the provinces.
Some hold their seats for life, others for six, three, or one year terms, and in two provinces their appointment is at will.
The Legislative Authority in the United Netherlands
The States-General has authority to enter into treaties and alliances, make war and peace, raise armies and equip fleets, ascertain quotas, and demand contributions.
In all these cases, unanimity and the sanction of their lesser constituents are requisite.
The States-General also has authority to appoint and receive ambassadors, execute treaties and alliances already formed, provide for the collection of duties on imports and exports, regulate the mint, and to govern as sovereigns their dependent territories.
Unless given general consent, the provinces are restrained from entering into foreign treaties, establishing imposts injurious to others, or charging their neighbors with higher duties than their own subjects.
The federal administration is aided and fortified by a council of state and a chamber of accounts, with five colleges of admiralty.
The Executive Authority in the United Netherlands
The executive magistrate of the union is the stadtholder, who is now a hereditary prince.
His weight and influence in the republic are derived in part from this independent title, his great patrimonial estates, and his family connections with some of the chief potentates of Europe.
Perhaps most important, however, is his status as stadtholder in the several provinces.
As provincial stadtholder, he appoints town magistrates under certain regulations, executes provincial decrees, presides when he pleases in the provincial tribunals, and controls the power of pardon.
His prerogatives as stadtholder of the union are also considerable.
In his political capacity, he has authority to settle disputes between the provinces when other methods fail, assist at the deliberations of the States-General and their particular conferences, give audiences to foreign ambassadors, and keep agents for his particular affairs at foreign courts.
In his military capacity, he commands the federal troops, provides for garrisons, disposes of all appointments from colonel to ensign, selects the governments and posts of fortified towns, and generally regulates military affairs.
In his marine capacity (as admiral-general), he superintends and directs everything 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 until he approves them.
His revenue (exclusive of his private income) amounts to 300,000 florins. The standing army which he commands consists of about 40,000 men.
The United Netherlands in Practice
Such is the nature of the celebrated union 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.
The esteemed Dutch jurist Hugo Grotius remarked long ago that nothing but the hatred of his countrymen to the house of Austria kept them from being ruined by the vices of their constitution.
Another respectable writer observed the union reposes in the States-General an authority seemingly sufficient to secure harmony, but that the practice is very different from the theory due to the jealousies in each province.
The same instrument, says another, obliges each province to levy certain contributions, but that this article will probably never be executed because the inland provinces cannot pay an equal quota on account of insufficient commerce.
It is the practice to waive the articles of the constitution in matters of contribution.
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 has enabled her to do both.
More than once were the deficiencies ultimately collected at the point of the bayonet.
This is only possible in a confederacy where the force of one of the members exceeds all the rest, and where several of them are too small to meditate resistance.
It is utterly impracticable in a confederacy in which several of the members 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 subject to finalization of details, 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.
Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.
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 States-General departed from the constitutional principle of unanimity.
A weak constitution necessarily terminates in dissolution, either from want of proper powers, or usurpation of the powers requisite for the public safety.
Whether the usurpation of powers – when once begun – will stop at the salutary point, or go forward to the dangerous extreme, depends on the contingencies of the moment.
Tyranny more often grows out of the demand for and assumption of power not authorized by a constitution – usually to respond to a pressing exigency – than from the full exercise of the largest constitutional authorities.
The calamities just discussed have been produced as well as ameliorated by the stadtholdership.
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 Abbé de 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.” During intermissions of the of the stadtholdership, Sir William Temple reports, Holland assumed the role “by her riches and her authority, which drew the others into a sort of dependence.”
In addition to the stadtholder, the strength of the surrounding powers has lessened the tendency to anarchy and dissolution, and practically imposed an absolute necessity of union.
At the same time, by their intrigues these powers nourish the constitutional vices which keep the republic in some degree always at their mercy.
The true patriots of the United Netherlands have long bewailed the fatal tendency of these vices and sought to remedy them.
They conceived a design to establish a general tax to be administered by the federal authority, but its adversaries defeated it.
In no less than four instances, these patriots convened extraordinary assemblies for the special purpose of reforming the known, acknowledged, and fatal evils of the existing constitution.
In as many instances has their laudable zeal found it impossible to unite the public councils.
Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred. The important truths history unequivocally pronounces in the present case are these:
a sovereignty over sovereigns,
a government over governments,
and a legislation for communities
– as contradistinguished from legislation for individuals –
are subversive of the order and ends of civil polity. Ultimately they substitute violence in place of law.
These unhappy people seem to be now suffering from popular convulsions, dissensions among the states, and the actual invasion of foreign arms – which are crises destined by their defective constitution.
All nations have their eyes fixed on the awful spectacle.
The first wish of humanity is this severe trial will cause such a revolution of their government so as to establish a union that will be the parent of tranquility, freedom, and happiness.
The next wish is the asylum under which the enjoyment of these blessings will speedily be secured in this country, to receive and console them for the catastrophe of their own.
The melancholy lesson of the United Netherlands causes a tear to drop for the calamities brought on mankind by their adverse opinions and selfish passions.
In contrast, we are grateful for the propitious concord which distinguished the consultations for political happiness our own representatives recently concluded.
The Laws of a Federal Government Must Be Directed Towards Its Citizens as Individuals
I make no apology for having dwelt so long on the contemplation of these federal precedents.
Experience is the oracle of truth. Where its responses are unequivocal, they ought to be conclusive and sacred.
The important truths history unequivocally pronounces in the present case are these: a sovereignty over sovereigns, a government over governments, and legislation for communities – as contradistinguished from legislation for individuals – are subversive of the order and ends of civil polity.
Ultimately they substitute violence in place of law.
To replace the destructive coercion of the sword with the mild and salutary coercion of the magistracy, the objects of the powers of the sovereign government must be individuals, not fellow sovereigns, governments, or communities.
Madison with the assistance of Hamilton
Federalist 21: Summary of the Defects of the Articles of Confederation
HAVING REVIEWED THE PRINCIPAL CIRCUMSTANCES and events which depict the genius and fate of other confederate governments – most notably the lack of federal sovereignty over individuals rather than states (in Federalist 18-20) – I shall now enumerate the most important of those defects which have hitherto disappointed our hopes from the system we established among ourselves.
It is absolutely necessary that we should be well acquainted with the extent and malignity of the disease in order to form a safe and satisfactory judgment of the proper remedy.
The Federal Government Must Have Authority to Enforce Its Laws
A palpable defect of the Confederation was the total want of a sanction to its laws.
The Confederation had no powers to exact obedience – or to punish disobedience – to its resolutions, whether by fines or taxes, suspension or divestiture of privileges, or any other constitutional mode.
There was no express delegation of authority to use force against delinquent States, and inferring one would have required a construction that would have justified departure from second article of Confederation, which declared “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.”
We had either to contravene or explain away this provision or to embrace the absurdity that the Federal government had no right to compel obedience or sanction disobedience to its laws.
If we were unwilling to impair the force of this provision, the United States would have presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws. Even those defective republics I examined in the preceding three papers were not so destitute of power.
The Federal Government Must Have the Power to Guarantee State Governments
Another principal imperfection in the Articles of Confederation was the want of a Federal guarantee of the State governments.
The Articles declared nothing of its kind. To have implied a tacit guarantee (from considerations of utility) would have marked a flagrant departure from the clause declaring “that each State shall retain every power, jurisdiction, and right, not expressly delegated to the United States in Congress assembled.” An implied guarantee also would improperly imply a tacit power of coercion from like considerations.
Absent such a guarantee, the United States could provide no assistance in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions.
Usurpers might rear their crests in each State, and trample upon the liberties of the People, while the Federal 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 Federal government to the friends and supporters of the State government.
In a popular (representative) constitution, the natural cure for ill administration is a change of leaders. So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state.
Dangers of this kind are not merely speculative, as evidenced recently by the tempestuous Shays’s rebellion in Massachusetts.
Who can determine what might have been the issue of her late convulsions if the malcontents had been headed by a Caesar or a Cromwell?
Who could predict what effect a despotism established in Massachusetts would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?
Some have objected (out of inordinate pride) to the principle of a guarantee in the Federal government, on the ground it officiously interferes in State domestic concerns.
The objection misapprehends the nature of the provision itself, and would deprive us of one of the principal advantages of a Federal government.
The guarantee would only operate against changes to be effected by violence. The right to reform State constitutions and governments by a majority of the People in a legal and peaceable mode would remain undiminished.
In a popular (representative) constitution, the natural cure for ill administration is a change of leaders.
So long as the whole power of the government remains in the hands of the People, there seldom should be either need or pretense for the use of violent remedies in partial or occasional distempers of the state.
Since the peace of society and the stability of government depend absolutely on efficacious precautions against violent reforms, too many checks cannot be provided towards prevention such calamities.
A guarantee by the Federal government is one such necessary check. Furthermore, this check equally would apply against the usurpations of rulers as against the ferments and outrages of faction and sedition in a State.
Demanding Quotas from State Governments Has Proven Ineffectual
Another fundamental error of the Confederation was the use of quotas to regulate State contributions to the common treasury.
The trial we made of them sufficiently showed the repugnancy of quotas to an adequate treasury in cases of national exigency.
There is no common standard (or barometer) by which the degrees of national wealth can be ascertained.
Neither the value of land nor the number of the people is a just representative.
If I compare the wealth of the United Netherlands with that of Russia, Germany, or France – and if I at the same time compare the total value of the lands and the aggregate population of the small confederacy of the United Netherlands with the total value of the lands and the aggregate population of the immense regions of either Russia, Germany, or France – we shall at once discover there is no comparison between the proportion of land values or populations and 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.
If Virginia is contrasted with North Carolina, Pennsylvania with Connecticut, or Maryland with New Jersey, we would see 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 also is illustrated by a similar process between the counties within the same State. No one acquainted with the State of New York doubts the active wealth of King’s County in lower Manhattan is greater than that of Montgomery County, which is north of Albany.
The disparity equally would appear if I should use either the total value of the lands or the total number of the people of these counties 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 clear consequence is there can be no common measure of national wealth, and no general or stationary rule by which the ability of a State to pay taxes can be determined.
The attempt to regulate the contributions of the members of a confederacy by any such rule cannot fail to produce glaring inequality and extreme oppression.
The Innate Inequality Caused Federal Requisitions Would Dismember the United States
Even assuming a mode of enforcing compliance with requisitions of the Federal government could be devised, the resulting inequality would itself be sufficient to work the eventual destruction of the United States.
The suffering states would not long remain associated upon a principle which impoverishes and oppresses its citizens, while leaving others scarcely conscious of the small proportion of the weight they were required to sustain.
This evil is inseparable from the principle of quotas and requisitions.
The Federal Government Must Be Empowered to Raise Its Own Revenue
The only method to steer clear of this inconvenience is to authorize the Federal government to raise its own revenues in its own way.
Imposts, excises, and generally all duties upon articles of consumption will in time reach a balance with the means of paying them.
In some degree, each citizen will have the option to regulate his contribution, by an attention to his resources.
The rich may be extravagant, the poor frugal, or the reverse.
Private oppression may always be avoided by a judicious selection of the objects proper for such impositions.
If inequalities should arise in some States from duties on particular objects, in all probability these will 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.
To the extent inequalities should still exist, they would be less in degree, operation, and appearance than those which necessarily spring from quotas, upon any scale devised
As the saying goes, “in political arithmetic, two and two do not always make four.” Applied to taxes on consumption, the saying is as just as it is witty.
Taxes on articles of consumption contain in their own nature the signal advantage of being a security against excess.
They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue.
If duties are too high, they lessen consumption, and hence collections.
The product to the treasury is less than when the taxes are confined within proper and moderate bounds.
This forms a complete barrier against any material oppression of the citizens by taxes of this class. The barrier is itself a natural limitation on the power of imposing taxes.
As the saying goes, “in political arithmetic, two and two do not always make four.” Applied to taxes on consumption, the saying is as just as it is witty.
Taxes on articles of consumption contain in their own nature the advantage of being a security against excess. They prescribe their own limit, which cannot be exceeded without defeating the end of increasing the tax revenue.
Impositions of this kind are usually denominated indirect taxes.
For the foreseeable future, indirect taxes must constitute the chief part of the revenue raised in the United States.
Taxes of the direct kind principally relate to the value of land and buildings.
These direct taxes may be apportioned based on either the value of land or the number of the people.
The value of land and the populousness of a country are closely connected with each other. Simplicity and certainty give a preference to taxation based on population.
It is a herculean task to obtain a valuation of the land in any country.
In a country imperfectly settled and progressive in improvement – like the United States – the difficulties are increased almost to impracticability.
An additional and formidable objection to the undertaking is the expense of an accurate valuation.
Finally, there are no natural limits on the discretionary valuation of lands and buildings.
It is better to establish a fixed rule (attended with fewer inconveniences) based on population, than to leave the discretion to tax land and buildings altogether at large.
Hamilton
<div style="height: 1px; background-color: #d3d3d3; margin: 40px 0; border: none;"></div>Federalist 22: The Need for a Power to Regulate Commerce, a National Court of Last Resort, and the Consent of a Majority of the People
IN ADDITION TO THE DEFECTS already enumerated concerning the Federal system under the Articles of Confederation, others of equal importance concur in rendering it altogether unfit for the administration of the affairs of the United States.
The Power to Regulate Commerce Is Indispensable
All agreed that a principal defect of the Articles of Confederation was the absence of a Federal power to regulate commerce.
No objects more strongly demand a Federal superintendence than trade and finance. The absence of a Federal power to regulate commerce prevented formation of beneficial treaties with foreign powers and caused dissatisfaction between States.
No nation acquainted with the Confederation was unwise enough to agree to concede privileges of any importance, since these engagements could at any moment be violated by the individual States comprising it.
Experience has shown other nations they can enjoy every advantage they desire in our markets without granting us any return except what their momentary convenience might suggest. For instance, Great Britain consistently limited itself to temporary trade measures with us – and would have continued doing so – until it appeared to them that our government was likely to acquire a greater consistency.
Several States have endeavored to influence trade with Britain through the use of prohibitions, restrictions, and exclusions. All such efforts were frustrated, due either to the lack of concerted action among the States, or from clashing and dissimilar views within an individual State. These obstacles would remain unless there arose a general Federal authority to regulate commerce.
Some States (through regulation) had interfered with and been unneighborly to other States, contrary to a spirit of union. Their regulations gave just cause of umbrage for complaint. Examples of this nature, unless restrained by the Federal government, likely would have multiplied and extended until they become injurious impediments to trade between different parts of the confederacy
Consider Germany, where commerce is continually trammeled due to the multiplicity of duties the several princes and states exact upon the merchandises passing through their territories, thus rendering its fine streams and navigable rivers almost useless.
One would hope the genius of our People will never permit this description to be strictly applicable to us. However, we may have reasonably expected the gradual conflicts of State regulation would at length have cause the citizens of each State to be considered and treated by the others no better than as foreigners and aliens.
Quota Systems for the Supply of Troops During the Revolutionary War Were Erratic and Unreliable
Under the Articles of Confederation, the power of raising armies was merely a power of making requisitions upon the States for quotas of men.
During the Revolutionary War, this practice obstructed a vigorous and economical system of defense.
The States set up bounties for enlistment and competed with each other for recruits.
The result was an auction for men, with States outbidding each other until the bounties grew to be enormous and insupportable.
Even those predisposed to serve procrastinated their enlistment, in the hope of a further increase. The levies of men were slow and scanty even in the most critical times.
Short enlistments were had at unparalleled expense. The continual fluctuations in troops was ruinous to their discipline, and frequently subjected the public safety to the perilous crisis of a disbanded army.
Irregular enlistment also led to the use of oppressive expedients for raising men, which nothing but the enthusiasm of liberty would have induced the People to endure.
A quota system of raising troops also resulted in an unequal distribution of the burden.
The States near the seat of war – influenced by motives of self-preservation – made efforts to furnish their quotas in excess of their abilities.
Those States at a distance from danger were generally as remiss in their exertions as the others were diligent.
The inequality in the supply of men was aided by the unlikelihood of a penalty at war’s end.
At least with contributions of money, States which did not pay their proportions might be charged with their deficiencies.
No account could be formed of the deficiencies in the supplies of men. And we have seen there is little prospect the most delinquent States will ever be able to make compensation for their pecuniary failures. In short, the system of quotas and requisitions – whether applied to men or money – was a system of imbecility in the Union, and of inequality and injustice among the States.
The Articles Gave Smaller States Undue Influence in the National Council
Another defect in the Articles was the right of equal suffrage among the States. It gave Rhode Island or Delaware an equal weight in the scale of power with Massachusetts, New York, or Virginia.
Equal suffrage among the States contradicts every idea of proportion and every rule of fair representation. It also is contrary to the fundamental maxim of republican (representative) government that the majority should prevail.
In situations where more than a majority is required for a decision, the minority is given a negative upon the majority. The will of the greater number is thus subjected to the will of the lesser. What at first sight seems fair and beneficial to the minority actually acts like a poison.
Some argued that sovereigns are equal, and a majority of the votes of the States was a majority of confederated America.
This kind of logical legerdemain will never counteract justice and common sense. Sometimes a majority of States constitutes a small minority of the People of America. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South Carolina, and Maryland are a majority of the whole number of States, but they do not contain one third of its citizens.
Artificial distinctions and syllogistic subtleties will not long persuade two thirds of the People of America to submit their interests to the management and disposal of one third.
The love of power will not acquiesce in such a privation.
The desire for equality also would abhor the sacrifice of power.
After a while, the larger States would revolt from the idea of receiving the law from the smaller. The smaller States – whose safety and welfare depend on union – ought readily to renounce a pretension which would prove fatal to its duration.
But this is not all.
In situations where more than a majority is required for a decision, the minority is given a negative upon the majority.
The will of the greater number is thus subjected to the will of the lesser.
What at first sight seems fair and beneficial to the minority actually acts like a poison.
By the nonattendance of a few States delegations, a single vote has been sufficient to stop all movement in Congress. A sixtieth part of the Union – about the proportion of Delaware or Rhode Island – has several times been able to impose an entire bar to the operations of Congress.
Requiring Unanimity Magnifies the Influence of the Minority
The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security.
But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority.
Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
In the emergencies of a nation, there is commonly a necessity for action.
In such times, the strength or weakness of the government is most apparent, and of greatest importance.
The public business must go forward in some way or another.
If a rigid minority can control the opinion of a majority respecting the best mode of conducting the public business, the majority must conform to the views of the minority, in order that something may be done.
The sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings.
This results in tedious delays, continual negotiations and intrigues, and contemptible compromises of the public good.
On some occasions, a recalcitrant minority will refuse any accommodation, keeping the government in a state of inaction due to the impracticability of obtaining the concurrence of the necessary number of votes.
The measures of government are thus injuriously suspended or fatally defeated.
The situation savors of weakness, and sometimes borders on anarchy.
The necessity of unanimity in public bodies – or of something approaching unanimity – is founded on the supposition it would contribute to security. But in real operation it embarrasses the ruling administration and destroys the energy of the government, and substitutes the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt group into the regular deliberations and decisions of a respectable majority. Unanimity or something approaching it is one of those refinements which has the reverse effect in practice of what was expected in theory.
Requiring More than a Majority Also Magnifies the Influence of the Minority
Some mistakenly presume that a vote requiring more than a majority would lessen the effects of foreign corruption and domestic faction.
This mistake proceeds from overlooking or ignoring the mischiefs occasioned by obstructing the progress of government at certain critical seasons.
Some are apt to assume all is safe with a higher vote threshold, reasoning that nothing improper will be done.
Yet we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing of what may be necessary.
Such conduct keeps our affairs in the same unfavorable posture in which happen to stand at particular periods.
Provisions Requiring More than a Majority Make Corruption Easier
Suppose we and a foreign nation were engaged in a war against a third nation.
Suppose the necessity of our situation demanded peace, but the interest or ambition of our ally led it to continue prosecution of the war.
Suppose finally that our ally’s views justified us to make separate terms with the third nation.
In such a state of things, this ally of ours would find it much easier – by bribes and intrigues – to tie the hands of government where a two-thirds vote was required, than where a simple majority would suffice.
In the case of a two-thirds requirement, our ally would have to corrupt a smaller number forestall action.
If a simple majority could act, our ally would have to corrupt a larger number.
For the same reasons, a foreign enemy could perplex our councils and embarrass our exertions with less effort.
The same inconveniences would inure in the commercial sphere.
If more than a majority vote is required, a nation with which we might enter a treaty of commerce could more easily prevent our forming a connection with her competitor in trade, though such a connection should be ever so beneficial to ourselves.
These evils are not imaginary.
One weakness of republics is they afford too easy an inlet to foreign corruption.
Even a hereditary monarch – including one disposed to sacrifice his subjects to his ambition – has as great a personal interest in the continuance of the government and the external glory of the nation.
Few foreign powers would be able to offer the monarch an equivalent for what he or she would sacrifice by treachery to the State.
The world has accordingly been witness to few examples of this species of royal prostitution, although there have been abundant specimens of every other kind.
In republics, persons elevated by their fellow citizens to stations of great preeminence and power may find compensations for betraying their trust.
To any but minds animated and guided by superior virtue, such betrayals 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 prevalence of foreign corruption in republican governments.
I have already delineated how much this contributed to the ruin of the ancient commonwealths.
In modern times, it is well known that the deputies of the United Provinces have been purchased by the emissaries of the neighboring kingdoms in various instances.
In a letter to his court, the Earl of Chesterfield intimated his success in an important negotiation depended on obtaining a major’s commission for one of those deputies.
And in Sweden the parties were alternately bought by France and England.
The purchase was so barefaced and notorious it excited universal disgust in the nation, and was a principal cause by which its limited monarch became one of Europe’s most absolute and uncontrolled in a single day, without tumult, violence, or opposition.
In order to avoid the confusion that unavoidably results 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.
A Supreme Judicial Tribunal Is Essential
The crowning defect of our Confederation was the want of a judiciary.
Laws are a dead letter without courts to expound and define their true meaning and operation.
For instance, the treaties of the United States must be considered as part of the law of the land if they are to have any force at all.
Like all other laws, the true import of such treaties – with respect to individuals – must be ascertained by judicial determinations.
To produce uniformity in these determinations, in the last resort they ought to be submitted to one supreme tribunal.
And this tribunal ought to be instituted under the same authority which forms the treaties themselves. Both ingredients are indispensable.
If State courts of final resort were granted authority to have the last word on questions of Federal law, there may be as many different final determinations on the same point as there are courts, owing to the endless diversities in the opinions of judges.
How often have we seen different courts (including different judges of the same court) differing from each other?
In order to avoid the confusion that unavoidably results 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 due to the sheer number of State governments that could allow the laws of the parts to contravene the laws of the whole.
Under the Articles of Confederation, the treaties of the United States were liable to the infractions of thirteen different legislatures, and as many different courts of final jurisdiction, acting under the authority of those legislatures.
Nothing is more natural to individuals holding office than to look with peculiar deference towards that authority to which they owe their official existence.
There would be much to fear from the bias of local views and prejudices and the interference of local regulations if State tribunals were invested with a right of ultimate jurisdiction on the general laws and treaties of the United States.
As frequently as permitted, the interference of particular local laws might be preferred to those of the general laws.
The faith, reputation, and peace of the United States would be continually at the mercy of the prejudices, passions, and interests of every State.
Is it possible foreign nations would neither respect nor confide in such a government?
Is it also possible the People of America would any longer consent to entrust their honor, happiness, and safety to a government constructed on so precarious a foundation?
My review of the Confederation has confined itself the most material defects. Individuals who reflected (divesting themselves of preconceived opinions) believed the former Articles Confederation were so radically vicious and unsound that no amendment could save them, and that an entire change in its leading features and characters was required.
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.
The organization of the Congress under the Articles was utterly inadequate for the exercise of those powers necessary to be deposited in a union of the States.
While this single assembly may have been a proper receptacle of those limited authorities heretofore delegated to the Federal head, it would be inconsistent with all of the principles of good government to entrust it with those additional powers which ought to reside in the government of the United States.
If we had retained that structure, and merely conferred supplementary powers upon Congress, one of two outcomes was likely: (1) either the enfeebled structure would have mouldered into pieces despite our ill-judged efforts to prop it up, or (2) by successive augmentations of its force and energy, we would have finally have accumulated – in a single body – all of the most important prerogatives of sovereignty, and thus entailed upon our posterity one of the most execrable forms of government human infatuation ever contrived.
We would have created that very tyranny the adversaries of the new Constitution either are (or affect to be) solicitous to avert.
The Consent of the People Is the Fountainhead of Legitimate Authority
A final infirmity of the Federal system under the Articles of Confederation was that it was never ratified by the People.
It rested on no better foundation than the consent of State legislatures.
It was has been exposed to frequent and intricate questions concerning the validity of its powers, which have given birth to the doctrine of the 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.
This theory contended that since ratification was based on the law of a State, the same authority may repeal the law by which it was ratified.
The possibility of a question of this nature could arise 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.
Hamilton
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