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-the want of a See No. judiciary power. Laws are a dead letter with78. out 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 same 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 Hamilton] VARIABLE LEGISLATION. 141 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 toward 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 legisla tures. 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 'On the subject of infractions of the British Treaty of 1783 by the various States, see Hammond's and Jefferson's correspondence (“ American State Papers, Foreign Relations," i. 193).-EDITOR. 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 molder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force and energy, as necessity might prompt, we shall finally accumulate, in a 'The Continental Congress had illustrated the evils of a single legislative body. Frequently it had adopted resolutions only to repeal them the next day, and in several cases had rejected, reconsidered, and adopted, and again rejected in the course of a week, the same motion; the change being due to the arrival or departure of members, and to the lack of any check. A want of stability had likewise been shown in the single assembly body of Pennsylvania, the history of which had been marked by extremely impulsive and variable legislation. The value of a dual-bodied legislative power seems not merely to consist in the additional check on hasty legislation which the delay of separate consideration necessarily involves, but in a still greater degree, in the inevitable competition in which they become involved. Both seek public favor, and they therefore become rivals. Necessarily a measure originated by one encounters in the other a stern criticism, and this is so keen that frequently each house prepares its own bill, and having done so, adheres to it with a positiveness that has compelled the introduction of a new legislative element in the shape of a third or union chamber, usually termed a conference committee, made up of an equal number of members from the two bodies, whose joint action in practice has become almost dictatorial. The tendency the world over (in spite of Congressional adoption of the previous question" and the parliamentary introduction of " closure," to say nothing of a steadily increasing power over legislative action granted to presiding officers) is to make legislation slower and otherwise more difficult. While this may have its apparent disadvantages it is probable that the public gain far more than they lose, for it is certain that, in sharply critical moments, Congress can still act with the greatest celerity (notably in their vote of the funds entailed by the Venezuelan message), and the ordinary delay not merely gives more time for consideration, but even prevents much legislation. The dissolution of each Congress is a grave to many thousand bills, which would have been passed had they but been reached in the session; their uselessness is well proven by subsequent events.-Editor. Hamilton] POPULAR CONSENT A TRUE BASIS. 143 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. (New York Journal, December 18, 1787.*) Hamilton. No. 23. Objects to be provided for by national government—Armies and fleets— Condition under present confederation-Vain project of legislating upon the States-Laws must be extended to individual citizens-The essential point in a compound government a discrimination of powerFleets and armies from this point of view. To the People of the State of New York: The necessity of a Constitution, at least equally energetic with the one proposed to the preservation of the Union, is the point at the examination of which we are now arrived. This inquiry will naturally divide itself into three branches: the objects to be provided for by the federal government, the quantity of power necessary to the accomplishment of those objects, the persons upon whom that power ought to operate. Its distribution and organization will more properly claim our attention under the succeeding head. The principal purposes to be answered by union are these: the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries. * "Yesterday the manuscript copy of the subsequent was communicated to the editor, with an assurance that his press should be preferred, in future, for the first ushering into public view the succeeding numbers. If the public are pleased to stigmatize the editor as a partial printer, in the face of his reiterated assertions of 'being influenced by none,' what more can be said! This stigma he prefers to that of a slavish copyist; consequently, unless manuscripts are communicated, he will be constrained (however injudicious) still to crouch under the weighty charge of partiality."-New York Journal, December 18, 1787. |