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FEDERALIST No. 22

The Same Subject Continued
(Other Defects of the Present Confederation)
From the New York Packet.
Friday, December 14, 1787.

HAMILTON

To the People of the State of New York:
IN ADDITION to the defects already enumerated in the existing
 federal system, there are others of not less importance, which
 concur in rendering it altogether unfit for the administration of
 the affairs of the Union.
The want of a power to regulate commerce is by all parties
 allowed to be of the number. The utility of such a power has been
 anticipated under the first head of our inquiries; and for this
 reason, as well as from the universal conviction entertained upon
 the subject, little need be added in this place. It is indeed
 evident, on the most superficial view, that there is no object,
 either as it respects the interests of trade or finance, that more
 strongly demands a federal superintendence. The want of it has
 already operated as a bar to the formation of beneficial treaties
 with foreign powers, and has given occasions of dissatisfaction
 between the States. No nation acquainted with the nature of our
 political association would be unwise enough to enter into
 stipulations with the United States, by which they conceded
 privileges of any importance to them, while they were apprised that
 the engagements on the part of the Union might at any moment be
 violated by its members, and while they found from experience that
 they might enjoy every advantage they desired in our markets,
 without granting us any return but such as their momentary
 convenience might suggest. It is not, therefore, to be wondered at
 that Mr. Jenkinson, in ushering into the House of Commons a bill for
 regulating the temporary intercourse between the two countries,
 should preface its introduction by a declaration that similar
 provisions in former bills had been found to answer every purpose to
 the commerce of Great Britain, and that it would be prudent to
 persist in the plan until it should appear whether the American
 government was likely or not to acquire greater consistency.%n1%n
Several States have endeavored, by separate prohibitions,
 restrictions, and exclusions, to influence the conduct of that
 kingdom in this particular, but the want of concert, arising from
 the want of a general authority and from clashing and dissimilar
 views in the State, has hitherto frustrated every experiment of the
 kind, and will continue to do so as long as the same obstacles to a
 uniformity of measures continue to exist.
The interfering and unneighborly regulations of some States,
 contrary to the true spirit of the Union, have, in different
 instances, given just cause of umbrage and complaint to others, and
 it is to be feared that examples of this nature, if not restrained
 by a national control, would be multiplied and extended till they
 became not less serious sources of animosity and discord than
 injurious impediments to the intcrcourse between the different parts
 of the Confederacy. ``The commerce of the German empire%n2%n is in
 continual trammels from the multiplicity of the duties which the
 several princes and states exact upon the merchandises passing
 through their territories, by means of which the fine streams and
 navigable rivers with which Germany is so happily watered are
 rendered almost useless.'' Though the genius of the people of this
 country might never permit this description to be strictly
 applicable to us, yet we may reasonably expect, from the gradual
 conflicts of State regulations, that the citizens of each would at
 length come to be considered and treated by the others in no better
 light than that of foreigners and aliens.
The power of raising armies, by the most obvious construction of
 the articles of the Confederation, is merely a power of making
 requisitions upon the States for quotas of men. This practice in
 the course of the late war, was found replete with obstructions to a
 vigorous and to an economical system of defense. It gave birth to a
 competition between the States which created a kind of auction for
 men. In order to furnish the quotas required of them, they outbid
 each other till bounties grew to an enormous and insupportable size.
 The hope of a still further increase afforded an inducement to
 those who were disposed to serve to procrastinate their enlistment,
 and disinclined them from engaging for any considerable periods.
 Hence, slow and scanty levies of men, in the most critical
 emergencies of our affairs; short enlistments at an unparalleled
 expense; continual fluctuations in the troops, ruinous to their
 discipline and subjecting the public safety frequently to the
 perilous crisis of a disbanded army. Hence, also, those oppressive
 expedients for raising men which were upon several occasions
 practiced, and which nothing but the enthusiasm of liberty would
 have induced the people to endure.
This method of raising troops is not more unfriendly to economy
 and vigor than it is to an equal distribution of the burden. The
 States near the seat of war, influenced by motives of
 self-preservation, made efforts to furnish their quotas, which even
 exceeded their abilities; while those at a distance from danger
 were, for the most part, as remiss as the others were diligent, in
 their exertions. The immediate pressure of this inequality was not
 in this case, as in that of the contributions of money, alleviated
 by the hope of a final liquidation. The States which did not pay
 their proportions of money might at least be charged with their
 deficiencies; but no account could be formed of the deficiencies in
 the supplies of men. We shall not, however, see much reason to
 reget the want of this hope, when we consider how little prospect
 there is, that the most delinquent States will ever be able to make
 compensation for their pecuniary failures. The system of quotas and
 requisitions, whether it be applied to men or money, is, in every
 view, a system of imbecility in the Union, and of inequality and
 injustice among the members.
The right of equal suffrage among the States is another
 exceptionable part of the Confederation. Every idea of proportion
 and every rule of fair representation conspire to condemn a
 principle, which gives to Rhode Island an equal weight in the scale
 of power with Massachusetts, or Connecticut, or New York; and to
 Deleware an equal voice in the national deliberations with
 Pennsylvania, or Virginia, or North Carolina. Its operation
 contradicts the fundamental maxim of republican government, which
 requires that the sense of the majority should prevail. Sophistry
 may reply, that sovereigns are equal, and that a majority of the
 votes of the States will be a majority of confederated America. But
 this kind of logical legerdemain will never counteract the plain
 suggestions of justice and common-sense. It may happen that this
 majority of States is a small minority of the people of
 America%n3%n; and two thirds of the people of America could not
 long be persuaded, upon the credit of artificial distinctions and
 syllogistic subtleties, to submit their interests to the management
 and disposal of one third. The larger States would after a while
 revolt from the idea of receiving the law from the smaller. To
 acquiesce in such a privation of their due importance in the
 political scale, would be not merely to be insensible to the love of
 power, but even to sacrifice the desire of equality. It is neither
 rational to expect the first, nor just to require the last. The
 smaller States, considering how peculiarly their safety and welfare
 depend on union, ought readily to renounce a pretension which, if
 not relinquished, would prove fatal to its duration.
It may be objected to this, that not seven but nine States, or
 two thirds of the whole number, must consent to the most important
 resolutions; and it may be thence inferred that nine States would
 always comprehend a majority of the Union. But this does not
 obviate the impropriety of an equal vote between States of the most
 unequal dimensions and populousness; nor is the inference accurate
 in point of fact; for we can enumerate nine States which contain
 less than a majority of the people; and it is constitutionally
 possible that these nine may give the vote. Besides, there are
 matters of considerable moment determinable by a bare majority; and
 there are others, concerning which doubts have been entertained,
 which, if interpreted in favor of the sufficiency of a vote of seven
 States, would extend its operation to interests of the first
 magnitude. In addition to this, it is to be observed that there is
 a probability of an increase in the number of States, and no
 provision for a proportional augmentation of the ratio of votes.
But this is not all: what at first sight may seem a remedy, is,
 in reality, a poison. To give a minority a negative upon the
 majority (which is always the case where more than a majority is
 requisite to a decision), is, in its tendency, to subject the sense
 of the greater number to that of the lesser. Congress, from the
 nonattendance of a few States, have been frequently in the situation
 of a Polish diet, where a single VOTE has been sufficient to put a
 stop to all their movements. A sixtieth part of the Union, which is
 about the proportion of Delaware and Rhode Island, has several times
 been able to oppose an entire bar to its operations. This is one of
 those refinements which, in practice, has an effect the reverse of
 what is expected from it in theory. The necessity of unanimity in
 public bodies, or of something approaching towards it, has been
 founded upon a supposition that it would contribute to security.
 But its real operation is to embarrass the administration, to
 destroy the energy of the government, and to substitute the
 pleasure, caprice, or artifices of an insignificant, turbulent, or
 corrupt junto, to the regular deliberations and decisions of a
 respectable majority. In those emergencies of a nation, in which
 the goodness or badness, the weakness or strength of its government,
 is of the greatest importance, there is commonly a necessity for
 action. The public business must, in some way or other, go forward.
 If a pertinacious minority can control the opinion of a majority,
 respecting the best mode of conducting it, the majority, in order
 that something may be done, must conform to the views of the
 minority; and thus the sense of the smaller number will overrule
 that of the greater, and give a tone to the national proceedings.
 Hence, tedious delays; continual negotiation and intrigue;
 contemptible compromises of the public good. And yet, in such a
 system, it is even happy when such compromises can take place: for
 upon some occasions things will not admit of accommodation; and
 then the measures of government must be injuriously suspended, or
 fatally defeated. It is often, by the impracticability of obtaining
 the concurrence of the necessary number of votes, kept in a state of
 inaction. Its situation must always savor of weakness, sometimes
 border upon anarchy.
It is not difficult to discover, that a principle of this kind
 gives greater scope to foreign corruption, as well as to domestic
 faction, than that which permits the sense of the majority to
 decide; though the contrary of this has been presumed. The mistake
 has proceeded from not attending with due care to the mischiefs that
 may be occasioned by obstructing the progress of government at
 certain critical seasons. When the concurrence of a large number is
 required by the Constitution to the doing of any national act, we
 are apt to rest satisfied that all is safe, because nothing improper
 will be likely TO BE DONE, but we forget how much good may be
 prevented, and how much ill may be produced, by the power of
 hindering the doing what may be necessary, and of keeping affairs in
 the same unfavorable posture in which they may happen to stand at
 particular periods.
Suppose, for instance, we were engaged in a war, in conjunction
 with one foreign nation, against another. Suppose the necessity of
 our situation demanded peace, and the interest or ambition of our
 ally led him to seek the prosecution of the war, with views that
 might justify us in making separate terms. In such a state of
 things, this ally of ours would evidently find it much easier, by
 his bribes and intrigues, to tie up the hands of government from
 making peace, where two thirds of all the votes were requisite to
 that object, than where a simple majority would suffice. In the
 first case, he would have to corrupt a smaller number; in the last,
 a greater number. Upon the same principle, it would be much easier
 for a foreign power with which we were at war to perplex our
 councils and embarrass our exertions. And, in a commercial view, we
 may be subjected to similar inconveniences. A nation, with which we
 might have a treaty of commerce, could with much greater facility
 prevent our forming a connection with her competitor in trade,
 though such a connection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded as imaginary.
 One of the weak sides of republics, among their numerous
 advantages, is that they afford too easy an inlet to foreign
 corruption. An hereditary monarch, though often disposed to
 sacrifice his subjects to his ambition, has so great a personal
 interest in the government and in the external glory of the nation,
 that it is not easy for a foreign power to give him an equivalent
 for what he would sacrifice by treachery to the state. The world
 has accordingly been witness to few examples of this species of
 royal prostitution, though there have been abundant specimens of
 every other kind.
In republics, persons elevated from the mass of the community,
 by the suffrages of their fellow-citizens, to stations of great
 pre-eminence and power, may find compensations for betraying their
 trust, which, to any but minds animated and guided by superior
 virtue, may appear to exceed the proportion of interest they have in
 the common stock, and to overbalance the obligations of duty. Hence
 it is that history furnishes us with so many mortifying examples of
 the prevalency of foreign corruption in republican governments. How
 much this contributed to the ruin of the ancient commonwealths has
 been already delineated. It is well known that the deputies of the
 United Provinces have, in various instances, been purchased by the
 emissaries of the neighboring kingdoms. The Earl of Chesterfield
 (if my memory serves me right), in a letter to his court, intimates
 that his success in an important negotiation must depend on his
 obtaining a major's commission for one of those deputies. And in
 Sweden the parties were alternately bought by France and England in
 so barefaced and notorious a manner that it excited universal
 disgust in the nation, and was a principal cause that the most
 limited monarch in Europe, in a single day, without tumult,
 violence, or opposition, became one of the most absolute and
 uncontrolled.
A circumstance which crowns the defects of the Confederation
 remains yet to be mentioned, τthe want of a judiciary power. Laws
 are a dead letter without courts to expound and define their true
 meaning and operation. The treaties of the United States, to have
 any force at all, must be considered as part of the law of the land.
 Their true import, as far as respects individuals, must, like all
 other laws, be ascertained by judicial determinations. To produce
 uniformity in these determinations, they ought to be submitted, in
 the last resort, to one SUPREME TRIBUNAL. And this tribunal ought
 to be instituted under the same authority which forms the treaties
 themselves. These ingredients are both indispensable. If there is
 in each State a court of final jurisdiction, there may be as many
 different final determinations on the same point as there are courts.
 There are endless diversities in the opinions of men. We often
 see not only different courts but the judges of the came court
 differing from each other. To avoid the confusion which would
 unavoidably result from the contradictory decisions of a number of
 independent judicatories, all nations have found it necessary to
 establish one court paramount to the rest, possessing a general
 superintendence, and authorized to settle and declare in the last
 resort a uniform rule of civil justice.
This is the more necessary where the frame of the government is
 so compounded that the laws of the whole are in danger of being
 contravened by the laws of the parts. In this case, if the
 particular tribunals are invested with a right of ultimate
 jurisdiction, besides the contradictions to be expected from
 difference of opinion, there will be much to fear from the bias of
 local views and prejudices, and from the interference of local
 regulations. As often as such an interference was to happen, there
 would be reason to apprehend that the provisions of the particular
 laws might be preferred to those of the general laws; for nothing
 is more natural to men in office than to look with peculiar
 deference towards that authority to which they owe their official
 existence. The treaties of the United States, under the present
 Constitution, are liable to the infractions of thirteen different
 legislatures, and as many different courts of final jurisdiction,
 acting under the authority of those legislatures. The faith, the
 reputation, the peace of the whole Union, are thus continually at
 the mercy of the prejudices, the passions, and the interests of
 every member of which it is composed. Is it possible that foreign
 nations can either respect or confide in such a government? Is it
 possible that the people of America will longer consent to trust
 their honor, their happiness, their safety, on so precarious a
 foundation?
In this review of the Confederation, I have confined myself to
 the exhibition of its most material defects; passing over those
 imperfections in its details by which even a great part of the power
 intended to be conferred upon it has been in a great measure
 rendered abortive. It must be by this time evident to all men of
 reflection, who can divest themselves of the prepossessions of
 preconceived opinions, that it is a system so radically vicious and
 unsound, as to admit not of amendment but by an entire change in its
 leading features and characters.
The organization of Congress is itself utterly improper for the
 exercise of those powers which are necessary to be deposited in the
 Union. A single assembly may be a proper receptacle of those
 slender, or rather fettered, authorities, which have been heretofore
 delegated to the federal head; but it would be inconsistent with
 all the principles of good government, to intrust it with those
 additional powers which, even the moderate and more rational
 adversaries of the proposed Constitution admit, ought to reside in
 the United States. If that plan should not be adopted, and if the
 necessity of the Union should be able to withstand the ambitious
 aims of those men who may indulge magnificent schemes of personal
 aggrandizement from its dissolution, the probability would be, that
 we should run into the project of conferring supplementary powers
 upon Congress, as they are now constituted; and either the machine,
 from the intrinsic feebleness of its structure, will moulder into
 pieces, in spite of our ill-judged efforts to prop it; or, by
 successive augmentations of its force an energy, as necessity might
 prompt, we shall finally accumulate, in a single body, all the most
 important prerogatives of sovereignty, and thus entail upon our
 posterity one of the most execrable forms of government that human
 infatuation ever contrived. Thus, we should create in reality that
 very tyranny which the adversaries of the new Constitution either
 are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the
 existing federal system, that it never had a ratification by the
 PEOPLE. Resting on no better foundation than the consent of the
 several legislatures, it has been exposed to frequent and intricate
 questions concerning the validity of its powers, and has, in some
 instances, given birth to the enormous doctrine of a right of
 legislative repeal. Owing its ratification to the law of a State,
 it has been contended that the same authority might repeal the law
 by which it was ratified. However gross a heresy it may be to
 maintain that a PARTY to a COMPACT has a right to revoke that
 COMPACT, the doctrine itself has had respectable advocates. The
 possibility of a question of this nature proves the necessity of
 laying the foundations of our national government deeper than in the
 mere sanction of delegated authority. The fabric of American empire
 ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The
 streams of national power ought to flow immediately from that pure,
 original fountain of all legitimate authority.
PUBLIUS.
 This, as nearly as I can recollect, was the sense of his speech on
 introducing the last bill.
 Encyclopedia, article ``Empire.''
 New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South
 Carolina, and Maryland are a majority of the whole number of the
 States, but they do not contain one third of the people.
 Add New York and Connecticut to the foregoing seven, and they will be
 less than a majority.