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FEDERALIST No. 16

The Same Subject Continued
(The Insufficiency of the Present Confederation to Preserve the
 Union)
From the New York Packet.
Tuesday, December 4, 1787.

HAMILTON

To the People of the State of New York:
THE tendency of the principle of legislation for States, or
 communities, in their political capacities, as it has been
 exemplified by the experiment we have made of it, is equally
 attested by the events which have befallen all other governments of
 the confederate kind, of which we have any account, in exact
 proportion to its prevalence in those systems. The confirmations of
 this fact will be worthy of a distinct and particular examination.
 I shall content myself with barely observing here, that of all the
 confederacies of antiquity, which history has handed down to us, the
 Lycian and Achaean leagues, as far as there remain vestiges of them,
 appear to have been most free from the fetters of that mistaken
 principle, and were accordingly those which have best deserved, and
 have most liberally received, the applauding suffrages of political
 writers.
This exceptionable principle may, as truly as emphatically, be
 styled the parent of anarchy: It has been seen that delinquencies
 in the members of the Union are its natural and necessary offspring;
 and that whenever they happen, the only constitutional remedy is
 force, and the immediate effect of the use of it, civil war.
It remains to inquire how far so odious an engine of government,
 in its application to us, would even be capable of answering its end.
 If there should not be a large army constantly at the disposal of
 the national government it would either not be able to employ force
 at all, or, when this could be done, it would amount to a war
 between parts of the Confederacy concerning the infractions of a
 league, in which the strongest combination would be most likely to
 prevail, whether it consisted of those who supported or of those who
 resisted the general authority. It would rarely happen that the
 delinquency to be redressed would be confined to a single member,
 and if there were more than one who had neglected their duty,
 similarity of situation would induce them to unite for common
 defense. Independent of this motive of sympathy, if a large and
 influential State should happen to be the aggressing member, it
 would commonly have weight enough with its neighbors to win over
 some of them as associates to its cause. Specious arguments of
 danger to the common liberty could easily be contrived; plausible
 excuses for the deficiencies of the party could, without difficulty,
 be invented to alarm the apprehensions, inflame the passions, and
 conciliate the good-will, even of those States which were not
 chargeable with any violation or omission of duty. This would be
 the more likely to take place, as the delinquencies of the larger
 members might be expected sometimes to proceed from an ambitious
 premeditation in their rulers, with a view to getting rid of all
 external control upon their designs of personal aggrandizement; the
 better to effect which it is presumable they would tamper beforehand
 with leading individuals in the adjacent States. If associates
 could not be found at home, recourse would be had to the aid of
 foreign powers, who would seldom be disinclined to encouraging the
 dissensions of a Confederacy, from the firm union of which they had
 so much to fear. When the sword is once drawn, the passions of men
 observe no bounds of moderation. The suggestions of wounded pride,
 the instigations of irritated resentment, would be apt to carry the
 States against which the arms of the Union were exerted, to any
 extremes necessary to avenge the affront or to avoid the disgrace of
 submission. The first war of this kind would probably terminate in
 a dissolution of the Union.
This may be considered as the violent death of the Confederacy.
 Its more natural death is what we now seem to be on the point of
 experiencing, if the federal system be not speedily renovated in a
 more substantial form. It is not probable, considering the genius
 of this country, that the complying States would often be inclined
 to support the authority of the Union by engaging in a war against
 the non-complying States. They would always be more ready to pursue
 the milder course of putting themselves upon an equal footing with
 the delinquent members by an imitation of their example. And the
 guilt of all would thus become the security of all. Our past
 experience has exhibited the operation of this spirit in its full
 light. There would, in fact, be an insuperable difficulty in
 ascertaining when force could with propriety be employed. In the
 article of pecuniary contribution, which would be the most usual
 source of delinquency, it would often be impossible to decide
 whether it had proceeded from disinclination or inability. The
 pretense of the latter would always be at hand. And the case must
 be very flagrant in which its fallacy could be detected with
 sufficient certainty to justify the harsh expedient of compulsion.
 It is easy to see that this problem alone, as often as it should
 occur, would open a wide field for the exercise of factious views,
 of partiality, and of oppression, in the majority that happened to
 prevail in the national council.
It seems to require no pains to prove that the States ought not
 to prefer a national Constitution which could only be kept in motion
 by the instrumentality of a large army continually on foot to
 execute the ordinary requisitions or decrees of the government. And
 yet this is the plain alternative involved by those who wish to deny
 it the power of extending its operations to individuals. Such a
 scheme, if practicable at all, would instantly degenerate into a
 military despotism; but it will be found in every light
 impracticable. The resources of the Union would not be equal to the
 maintenance of an army considerable enough to confine the larger
 States within the limits of their duty; nor would the means ever be
 furnished of forming such an army in the first instance. Whoever
 considers the populousness and strength of several of these States
 singly at the present juncture, and looks forward to what they will
 become, even at the distance of half a century, will at once dismiss
 as idle and visionary any scheme which aims at regulating their
 movements by laws to operate upon them in their collective
 capacities, and to be executed by a coercion applicable to them in
 the same capacities. A project of this kind is little less romantic
 than the monster-taming spirit which is attributed to the fabulous
 heroes and demi-gods of antiquity.
Even in those confederacies which have been composed of members
 smaller than many of our counties, the principle of legislation for
 sovereign States, supported by military coercion, has never been
 found effectual. It has rarely been attempted to be employed, but
 against the weaker members; and in most instances attempts to
 coerce the refractory and disobedient have been the signals of
 bloody wars, in which one half of the confederacy has displayed its
 banners against the other half.
The result of these observations to an intelligent mind must be
 clearly this, that if it be possible at any rate to construct a
 federal government capable of regulating the common concerns and
 preserving the general tranquillity, it must be founded, as to the
 objects committed to its care, upon the reverse of the principle
 contended for by the opponents of the proposed Constitution. It
 must carry its agency to the persons of the citizens. It must stand
 in need of no intermediate legislations; but must itself be
 empowered to employ the arm of the ordinary magistrate to execute
 its own resolutions. The majesty of the national authority must be
 manifested through the medium of the courts of justice. The
 government of the Union, like that of each State, must be able to
 address itself immediately to the hopes and fears of individuals;
 and to attract to its support those passions which have the
 strongest influence upon the human heart. It must, in short,
 possess all the means, and have aright to resort to all the methods,
 of executing the powers with which it is intrusted, that are
 possessed and exercised by the government of the particular States.
To this reasoning it may perhaps be objected, that if any State
 should be disaffected to the authority of the Union, it could at any
 time obstruct the execution of its laws, and bring the matter to the
 same issue of force, with the necessity of which the opposite scheme
 is reproached.
The pausibility of this objection will vanish the moment we
 advert to the essential difference between a mere NON-COMPLIANCE and
 a DIRECT and ACTIVE RESISTANCE. If the interposition of the State
 legislatures be necessary to give effect to a measure of the Union,
 they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is
 defeated. This neglect of duty may be disguised under affected but
 unsubstantial provisions, so as not to appear, and of course not to
 excite any alarm in the people for the safety of the Constitution.
 The State leaders may even make a merit of their surreptitious
 invasions of it on the ground of some temporary convenience,
 exemption, or advantage.
But if the execution of the laws of the national government
 should not require the intervention of the State legislatures, if
 they were to pass into immediate operation upon the citizens
 themselves, the particular governments could not interrupt their
 progress without an open and violent exertion of an unconstitutional
 power. No omissions nor evasions would answer the end. They would
 be obliged to act, and in such a manner as would leave no doubt that
 they had encroached on the national rights. An experiment of this
 nature would always be hazardous in the face of a constitution in
 any degree competent to its own defense, and of a people enlightened
 enough to distinguish between a legal exercise and an illegal
 usurpation of authority. The success of it would require not merely
 a factious majority in the legislature, but the concurrence of the
 courts of justice and of the body of the people. If the judges were
 not embarked in a conspiracy with the legislature, they would
 pronounce the resolutions of such a majority to be contrary to the
 supreme law of the land, unconstitutional, and void. If the people
 were not tainted with the spirit of their State representatives,
 they, as the natural guardians of the Constitution, would throw
 their weight into the national scale and give it a decided
 preponderancy in the contest. Attempts of this kind would not often
 be made with levity or rashness, because they could seldom be made
 without danger to the authors, unless in cases of a tyrannical
 exercise of the federal authority.
If opposition to the national government should arise from the
 disorderly conduct of refractory or seditious individuals, it could
 be overcome by the same means which are daily employed against the
 same evil under the State governments. The magistracy, being
 equally the ministers of the law of the land, from whatever source
 it might emanate, would doubtless be as ready to guard the national
 as the local regulations from the inroads of private licentiousness.
 As to those partial commotions and insurrections, which sometimes
 disquiet society, from the intrigues of an inconsiderable faction,
 or from sudden or occasional illhumors that do not infect the great
 body of the community the general government could command more
 extensive resources for the suppression of disturbances of that kind
 than would be in the power of any single member. And as to those
 mortal feuds which, in certain conjunctures, spread a conflagration
 through a whole nation, or through a very large proportion of it,
 proceeding either from weighty causes of discontent given by the
 government or from the contagion of some violent popular paroxysm,
 they do not fall within any ordinary rules of calculation. When
 they happen, they commonly amount to revolutions and dismemberments
 of empire. No form of government can always either avoid or control
 them. It is in vain to hope to guard against events too mighty for
 human foresight or precaution, and it would be idle to object to a
 government because it could not perform impossibilities.
PUBLIUS.