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 a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the governments 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 plausibility of this objection will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE and a DIRECT and ACTIVE RESIST If the interposition of the State legislatures be 1 This distinction has been justified to a remarkable degree in history Before the adoption of the federal constitution the states by merely pas Hamilton] EXECUTION OF LAWS. ΙΟΙ 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 opera sive action nullified such national laws and even treaties, as they chose; but with the creation of a government acting directly on the people, and therefore requiring active resistance, the attempts to resist the national on the part of the state governments, have been few and have seldom been pushed to open resistance. In the Olmstead case (1809) the governor of Pennsylvania ordered out the militia, and successfully resisted a process of the Supreme Court, and in the Creek and Cherokee troubles (1825-1830), the state of Georgia was equally successful in opposing by force the Court's decrees. It is to be noted, however, that both these nullifications were directed against the judicial department, which necessarily is hampered in its powers by its being compelled to rely upon the officials of another department for an actual enforcement. No attempt of a state government or convention to nullify a law, which was the duty of the executive department to execute, has ever succeeded. In 1798, though Virginia went to the length of purchasing arms, her resistance as a political body to the Alien and Sedition laws was limited to the passing of legislative resolutions; and though in 1832 South Carolina actually embodied troops, the obnoxious tariff laws were never for a moment suspended. A third type of nullification,—the resistance to United States laws, not through the intervention of the state governments, but through popular sentiment,-has succeeded best. For three years the excise law of 1791 was successfully resisted in Western Pennsylvania. (See Hamilton's Works, iii. 575.) The embargo laws of 1808 were successfully resisted in New England, because the local courts and juries would not convict those who broke the law. The Fugitive Slave law was largely nullified in the Northern states, and the attempted enforcement of it must eventually have been abandoned, had the Civil War not intervened. The same difficulty exists to-day in the "moonshine" whisky sections of the South, where it is almost impossible to secure convictions under the national revenue laws, from juries of the locality. The most remarkable incident, however, is furnished by the state of California, where the pressure of public opinion during the Civil War was so strong that the United States greenbacks were never allowed to circulate, despite their being a legal tender, that state remaining on a gold basis throughout the war; and to this day, though the paper money encounters no resistance, the use of it is very uncommon.-EDITOR. tion 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 legis lature, 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 ill-humors that do not infect the great body of the community, the general government could command more extensive resources for the suppression of Hamilton] LEGISLATION FOR INDIVIDUALS. 103 disturbances of that kind than would be in the power of any single member. And as 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. No. 17. (Independent Journal, December 5, 1787.) Hamilton. THAT A REFUTATION OF THE ARGUMENT GOVERNMENT BASED ON INDIVIDUALS WILL BE TOO POWERFUL. Unlikelihood that the national government will absorb the residuary authority-Objects of national ambition—Local concerns not alluring objects of general jurisdiction—Easier for the states to encroach on the national authorities-Greater popularity of state government- Tendency of mankind to neighborhood attachment—Local justice the most attractive source of popular obedience and attachment- The national government less immediately connected with the people-Example in feudal times— The struggle between king and baron-Example of clanship in Scotland -State governments compared with feudal baronies-Local governments certain to possess the confidence of the people. To the People of the State of New York: An objection of a nature different from that which has been stated and answered in my last address, may perhaps be likewise urged against the principle of legislation for the individual citizens of America. It may be said that it would tend to render the government of the Union too powerful and to enable it to absorb those residuary authorities which it might be judged proper to leave with the States for local purposes. Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same state, the supervision of agriculture' and of other concerns of a similar nature-all those things, in short, which are proper to be provided for by local legislation-can never be desirable cares of a general jurisdiction. It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers. with which they are connected, because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the. importance, or to the splendor of the national government. But let it be admitted for argument's sake that mere wantonness and lust of domination would be sufficient to beget that disposition, still it may be safely affirmed that the sense of the constituent body of the national representatives, or, in other words, the people of the several States, would control the indulgenee of so extravagant an appetite. It will always be far more easy for the State governments to encroach upon the national No. 45. authorities, than for the national government to encroach upon the State authorities. The proof of this proposition turns upon the greater degree of influ See 'Hamilton scarcely foresaw the creation of a Department of Agriculture.-EDitor. |