to the defects already enumerated in the existing federal system, there areothers of not less importance, which concur in rendering it altogether unfit forthe administration of the affairs of the Union.
The want of a power to regulate commerce is by all partiesallowed to be of the number. The utility of such a power has been anticipatedunder the first head of our inquiries; and for this reason, as well as from theuniversal conviction entertained upon the subject, little need be added in thisplace. It is indeed evident, on the most superficial view, that there is noobject, either as it respects the interests of trade or finance, that morestrongly demands a federal superintendence. The want of it has already operatedas a bar to the formation of beneficial treaties with foreign powers, and hasgiven occasions of dissatisfaction between the States. No nation acquainted withthe nature of our political association would be unwise enough to enter intostipulations with the United States, by which they conceded privileges of anyimportance to them, while they were apprised that the engagements on the part ofthe Union might at any moment be violated by its members, and while they foundfrom experience that they might enjoy every advantage they desired in ourmarkets, without granting us any return but such as their momentary conveniencemight suggest. It is not, therefore, to be wondered at that Mr. Jenkinson, inushering into the House of Commons a bill for regulating the temporaryintercourse between the two countries, should preface its introduction by adeclaration that similar provisions in former bills had been found to answerevery purpose to the commerce of Great Britain, and that it would be prudent topersist in the plan until it should appear whether the American government waslikely or not to acquire greater consistency.
Several States have endeavored, by separate prohibitions,restrictions, and exclusions, to influence the conduct of that kingdom in thisparticular, but the want of concert, arising from the want of a generalauthority and from clashing and dissimilar views in the State, has hithertofrustrated every experiment of the kind, and will continue to do so as long asthe same obstacles to a uniformity of measures continue to exist.
The interfering and unneighborly regulations of someStates, 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 thatexamples of this nature, if not restrained by a national control, would bemultiplied and extended till they became not less serious sources of animosityand discord than injurious impediments to the intcrcourse between the differentparts of the Confederacy. "The commerce of the German empire is in continual trammelsfrom the multiplicity of the duties which the several princes and states exactupon the merchandises passing through their territories, by means of which thefine streams and navigable rivers with which Germany is so happily watered arerendered almost useless." Though the genius of the people of this countrymight never permit this description to be strictly applicable to us, yet we mayreasonably expect, from the gradual conflicts of State regulations, that thecitizens of each would at length come to be considered and treated by the othersin no better light than that of foreigners and aliens.
The power of raising armies, by the most obviousconstruction of the articles of the Confederation, is merely a power of makingrequisitions upon the States for quotas of men. This practice in the course ofthe late war, was found replete with obstructions to a vigorous and to aneconomical system of defense. It gave birth to a competition between the Stateswhich created a kind of auction for men. In order to furnish the quotas requiredof them, they outbid each other till bounties grew to an enormous andinsupportable size. The hope of a still further increase afforded an inducementto those who were disposed to serve to procrastinate their enlistment, anddisinclined them from engaging for any considerable periods. Hence, slow andscanty levies of men, in the most critical emergencies of our affairs; shortenlistments at an unparalleled expense; continual fluctuations in the troops,ruinous to their discipline and subjecting the public safety frequently to theperilous crisis of a disbanded army. Hence, also, those oppressive expedientsfor raising men which were upon several occasions practiced, and which nothingbut the enthusiasm of liberty would have induced the people to endure.
This method of raising troops is not more unfriendly toeconomy and vigor than it is to an equal distribution of the burden. The Statesnear the seat of war, influenced by motives of self-preservation, made effortsto furnish their quotas, which even exceeded their abilities; while those at adistance from danger were, for the most part, as remiss as the others werediligent, in their exertions. The immediate pressure of this inequality was notin this case, as in that of the contributions of money, alleviated by the hopeof a final liquidation. The States which did not pay their proportions of moneymight at least be charged with their deficiencies; but no account could beformed of the deficiencies in the supplies of men. We shall not, however, seemuch reason to reget the want of this hope, when we consider how little prospectthere is, that the most delinquent States will ever be able to make compensationfor their pecuniary failures. The system of quotas and requisitions, whether itbe applied to men or money, is, in every view, a system of imbecility in theUnion, and of inequality and injustice among the members.
The right of equal suffrage among the States is anotherexceptionable part of the Confederation. Every idea of proportion and every ruleof fair representation conspire to condemn a principle, which gives to RhodeIsland 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 withPennsylvania, or Virginia, or North Carolina. Its operation contradicts thefundamental maxim of republican government, which requires that the sense of themajority should prevail. Sophistry may reply, that sovereigns are equal, andthat a majority of the votes of the States will be a majority of confederatedAmerica. But this kind of logical legerdemain will never counteract the plainsuggestions of justice and common-sense. It may happen that this majority ofStates is a small minority of the people of America; and two thirds of the people of Americacould not long be persuaded, upon the credit of artificial distinctions andsyllogistic subtleties, to submit their interests to the management and disposalof one third. The larger States would after a while revolt from the idea ofreceiving the law from the smaller. To acquiesce in such a privation of theirdue importance in the political scale, would be not merely to be insensible tothe love of power, but even to sacrifice the desire of equality. It is neitherrational to expect the first, nor just to require the last. The smaller States,considering how peculiarly their safety and welfare depend on union, oughtreadily to renounce a pretension which, if not relinquished, would prove fatalto its duration.
It may be objected to this, that not seven but nineStates, or two thirds of the whole number, must consent to the most importantresolutions; and it may be thence inferred that nine States would alwayscomprehend a majority of the Union. But this does not obviate the impropriety ofan 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 Stateswhich contain less than a majority of the people; and it is constitutionally possible thatthese nine may give the vote. Besides, there are matters of considerable momentdeterminable by a bare majority; and there are others, concerning which doubtshave been entertained, which, if interpreted in favor of the sufficiency of avote of seven States, would extend its operation to interests of the firstmagnitude. In addition to this, it is to be observed that there is a probabilityof an increase in the number of States, and no provision for a proportionalaugmentation of the ratio of votes.
But this is not all: what at first sight may seem aremedy, is, in reality, a poison. To give a minority a negative upon themajority (which is always the case where more than a majority is requisite to adecision), is, in its tendency, to subject the sense of the greater number tothat of the lesser. Congress, from the nonattendance of a few States, have beenfrequently in the situation of a Polish diet, where a single veto has beensufficient 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 timesbeen able to oppose an entire bar to its operations. This is one of thoserefinements which, in practice, has an effect the reverse of what is expectedfrom it in theory. The necessity of unanimity in public bodies, or of somethingapproaching towards it, has been founded upon a supposition that it wouldcontribute to security. But its real operation is to embarrass theadministration, to destroy the energy of the government, and to substitute thepleasure, caprice, or artifices of an insignificant, turbulent, or corruptjunto, to the regular deliberations and decisions of a respectable majority. Inthose emergencies of a nation, in which the goodness or badness, the weakness orstrength of its government, is of the greatest importance, there is commonly anecessity for action. The public business must, in some way or other, goforward. If a pertinacious minority can control the opinion of a majority,respecting the best mode of conducting it, the majority, in order that somethingmay be done, must conform to the views of the minority; and thus the sense ofthe smaller number will overrule that of the greater, and give a tone to thenational proceedings. Hence, tedious delays; continual negotiation and intrigue;contemptible compromises of the public good. And yet, in such a system, it iseven happy when such compromises can take place: for upon some occasions thingswill not admit of accommodation; and then the measures of government must beinjuriously suspended, or fatally defeated. It is often, by the impracticabilityof obtaining the concurrence of the necessary number of votes, kept in a stateof inaction. Its situation must always savor of weakness, sometimes border uponanarchy.
It is not difficult to discover, that a principle of thiskind 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 contraryof this has been presumed. The mistake has proceeded from not attending with duecare to the mischiefs that may be occasioned by obstructing the progress ofgovernment at certain critical seasons. When the concurrence of a large numberis required by the Constitution to the doing of any national act, we are apt torest satisfied that all is safe, because nothing improper will be likelytobe done, but we forget how much good may be prevented, and how much ill maybe produced, by the power of hindering the doing what may be necessary, and ofkeeping affairs in the same unfavorable posture in which they may happen tostand at particular periods.
Suppose, for instance, we were engaged in a war, inconjunction with one foreign nation, against another. Suppose the necessity ofour situation demanded peace, and the interest or ambition of our ally led himto seek the prosecution of the war, with views that might justify us in makingseparate terms. In such a state of things, this ally of ours would evidentlyfind it much easier, by his bribes and intrigues, to tie up the hands ofgovernment from making peace, where two thirds of all the votes were requisiteto 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. Uponthe same principle, it would be much easier for a foreign power with which wewere at war to perplex our councils and embarrass our exertions. And, in acommercial view, we may be subjected to similar inconveniences. A nation, withwhich we might have a treaty of commerce, could with much greater facilityprevent our forming a connection with her competitor in trade, though such aconnection should be ever so beneficial to ourselves.
Evils of this description ought not to be regarded asimaginary. One of the weak sides of republics, among their numerous advantages,is that they afford too easy an inlet to foreign corruption. An hereditarymonarch, though often disposed to sacrifice his subjects to his ambition, has sogreat a personal interest in the government and in the external glory of thenation, that it is not easy for a foreign power to give him an equivalent forwhat he would sacrifice by treachery to the state. The world has accordinglybeen witness to few examples of this species of royal prostitution, though therehave been abundant specimens of every other kind.
In republics, persons elevated from the mass of thecommunity, by the suffrages of their fellow-citizens, to stations of greatpre-eminence and power, may find compensations for betraying their trust, which,to any but minds animated and guided by superior virtue, may appear to exceedthe proportion of interest they have in the common stock, and to overbalance theobligations of duty. Hence it is that history furnishes us with so manymortifying examples of the prevalency of foreign corruption in republicangovernments. How much this contributed to the ruin of the ancient commonwealthshas been already delineated. It is well known that the deputies of the UnitedProvinces have, in various instances, been purchased by the emissaries of theneighboring kingdoms. The Earl of Chesterfield (if my memory serves me right),in a letter to his court, intimates that his success in an important negotiationmust depend on his obtaining a major's commission for one of those deputies. Andin Sweden the parties were alternately bought by France and England in sobarefaced and notorious a manner that it excited universal disgust in thenation, and was a principal cause that the most limited monarch in Europe, in asingle day, without tumult, violence, or opposition, became one of the mostabsolute and uncontrolled.
A circumstance which crowns the defects of theConfederation remains yet to be mentioned, the want of a judiciary power. Lawsare a dead letter without courts to expound and define their true meaning andoperation. The treaties of the United States, to have any force at all, must beconsidered as part of the law of the land. Their true import, as far as respectsindividuals, must, like all other laws, be ascertained by judicialdeterminations. To produce uniformity in these determinations, they ought to besubmitted, in the last resort, to one. And this tribunal ought to beinstituted under the same authority which forms the treaties themselves. Theseingredients are both indispensable. If there is in each State a court of finaljurisdiction, there may be as many different final determinations on the samepoint 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 courtdiffering from each other. To avoid the confusion which would unavoidably resultfrom the contradictory decisions of a number of independent judicatories, allnations have found it necessary to establish one court paramount to the rest,possessing a general superintendence, and authorized to settle and declare inthe last resort a uniform rule of civil justice.
This is the more necessary where the frame of thegovernment is so compounded that the laws of the whole are in danger of beingcontravened by the laws of the parts. In this case, if the particular tribunalsare invested with a right of ultimate jurisdiction, besides the contradictionsto be expected from difference of opinion, there will be much to fear from thebias of local views and prejudices, and from the interference of localregulations. As often as such an interference was to happen, there would bereason to apprehend that the provisions of the particular laws might bepreferred to those of the general laws; for nothing is more natural to men inoffice than to look with peculiar deference towards that authority to which theyowe their official existence.
The treaties of the United States, under the presentConstitution, are liable to the infractions of thirteen different legislatures,and as many different courts of final jurisdiction, acting under the authorityof those legislatures. The faith, the reputation, the peace of the whole Union,are thus continually at the mercy of the prejudices, the passions, and theinterests of every member of which it is composed. Is it possible that foreignnations can either respect or confide in such a government? Is it possible thatthe 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 confinedmyself to the exhibition of its most material defects; passing over thoseimperfections in its details by which even a great part of the power intended tobe conferred upon it has been in a great measure rendered abortive. It must beby this time evident to all men of reflection, who can divest themselves of theprepossessions of preconceived opinions, that it is a system so radicallyvicious and unsound, as to admit not of amendment but by an entire change in itsleading features and characters.
The organization of Congress is itself utterly improperfor the exercise of those powers which are necessary to be deposited in theUnion. A single assembly may be a proper receptacle of those slender, or ratherfettered, authorities, which have been heretofore delegated to the federal head;but it would be inconsistent with all the principles of good government, tointrust it with those additional powers which, even the moderate and morerational adversaries of the proposed Constitution admit, ought to reside in theUnited States. If that plan should not be adopted, and if the necessity of theUnion should be able to withstand the ambitious aims of those men who mayindulge magnificent schemes of personal aggrandizement from its dissolution, theprobability would be, that we should run into the project of conferringsupplementary powers upon Congress, as they are now constituted; and either themachine, from the intrinsic feebleness of its structure, will moulder intopieces, in spite of our ill-judged efforts to prop it; or, by successiveaugmentations of its force an energy, as necessity might prompt, we shallfinally accumulate, in a single body, all the most important prerogatives ofsovereignty, and thus entail upon our posterity one of the most execrable formsof government that human infatuation ever contrived. Thus, we should create inreality that very tyranny which the adversaries of the new Constitution eitherare, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of theexisting federal system, that it never had a ratification by the. Resting on no better foundation than the consentof the several legislatures, it has been exposed to frequent and intricatequestions concerning the validity of its powers, and has, in some instances,given birth to the enormous doctrine of a right of legislative repeal. Owing itsratification to the law of a State, it has been contended that the sameauthority might repeal the law by which it was ratified. However gross a heresyit may be to maintain that aparty to acompact has a right to revoke thatcompact, the doctrine itselfhas had respectable advocates. The possibility of a question of this natureproves the necessity of laying the foundations of our national government deeperthan in the mere sanction of delegated authority. The fabric of American empireought to rest on the solid basis of .The streams of national power ought to flow immediately from that pure, originalfountain of all legitimate authority.
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