FReeper Book Club: The Debate over the Constitution, Federalist #7

Hamilton now lays out the case for possible disputations between the states if the Union is sundered. He takes on commercial and territorial issues, bringing up the ongoing unpleasantness in Pennsylvania and the lingering Vermont issue.

² It is sometimes asked with an air of seeming triumph what inducements could the states have, if disunited, to make war upon each other?

³ It would be a full answer to this question to say – precisely the same inducements which have at different times deluged in blood all the nations in the world.

⁵ There are causes of differences within our immediate contemplation of the tendency of which, even under the restraints of a federal constitution, we have had sufficient experience to enable us to form a judgment of what might be expected if those restraints were removed.

⁶ Territorial disputes have at all times been found one of the most fertile sources of hostility among nations.

⁷ Perhaps the greatest proportion of wars that have desolated the earth have sprung from this origin.

⁹ We have a vast tract of unsettled territory within the boundaries of the United States.

¹⁰ There still are discordant and undecided claims between several of them, and the dissolution of the Union would lay a foundation for similar claims between them all.

¹¹ It is well known that they have heretofore had serious and animated discussion concerning the rights to the lands which were un-granted at the time of the Revolution and which usually went under the name of crown lands.

¹² The states within the limits of whose colonial governments they were comprised have claimed them as their property; the others have contended that the rights of the Crown in this article devolved upon the Union, especially as to all that part of the western territory which, either by actual possession or through the submission of the Indian proprietors, was subjected to the jurisdiction of the King of Great Britain till it was relinquished in the treaty of peace.

¹³ This, it has been said, was at all events an acquisition to the Confederacy by compact with a foreign power.

¹⁴ It has been the prudent policy of Congress to appease this controversy by prevailing upon the states to make cessions to the United States for the benefit of the whole.

¹⁵ This has been so far accomplished as, under a continuation of the Union, to afford a decided prospect of an amicable termination of the dispute.

¹⁶ A dismemberment of the Confederacy, however, would revive this dispute and would create others on the same subject.

¹⁷ At present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the Union. 18 If that were at an end, the states which made the cession on a principle of federal compromise would be apt, when the motive of the grant had ceased, to reclaim the lands as a reversion.

¹⁹ The other states would no doubt insist on a proportion by right of representation.

²⁰ Their argument would be that a grant once made could not be revoked, and that the justice of participating in territory acquired or secured by the joint efforts of the Confederacy remained undiminished.

²¹ If, contrary to probability, it should be admitted by all the states that each had a right to a share of this common stock, there would still be a difficulty to be surmounted as to a proper rule of apportionment.

²² Different principles would be set up by different states for this purpose, and as they would affect the opposite interests of the parties, they might not easily be susceptible of a pacific adjustment.

²³ In the wide field of western territory, therefore, we perceive an ample theater for hostile pretensions without any umpire or common judge to interpose between the contending parties.

²⁴ To reason from the past to the future, we shall have good ground to apprehend that the sword would sometimes be appealed to as the arbiter of their differences.

²⁵ The circumstances of the dispute between Connecticut and Pennsylvania, respecting the land at Wyoming, admonish us not to be sanguine in expecting an easy accommodation of such differences.

²⁶ The Articles of Confederation obliged the parties to submit the matter to the decision of a federal court.

²⁸ But Connecticut gave strong indications of dissatisfaction with that determination, nor did she appear to be entirely resigned to it till, by negotiation and management, something like an equivalent was found for the loss she supposed herself to have sustained.

²⁹ Nothing here said is intended to convey the slightest censure on the conduct of that state.

³⁰ She no doubt sincerely believed herself to have been injured by the decision; and states, like individuals, acquiesce with great reluctance in determinations to their disadvantage. ***

³¹ Those who had an opportunity of seeing the inside of the transactions which attended the progress of the controversy between this state and the district of Vermont can vouch the opposition we experienced, as well from states not interested as from those which were interested in the claim, and can attest the danger to which the peace of the Confederacy might have been exposed had this state attempted to assert its rights by force. 32 Two motives preponderated in that opposition: one, a jealousy entertained of our future power, and the other, the interest of certain individuals of influence in the neighboring states who had obtained grants of lands under the actual government of that district.

³³ Even the states which brought forward claims, in contradiction to ours, seemed more solicitous to dismember this state than to establish their own pretensions.

³⁵ New Jersey and Rhode Island, upon all occasions, discovered a warm zeal for the independence of Vermont, and Maryland, till alarmed by the appearance of a connection between Canada and that state, entered deeply into the same views.

³⁶ These being small states, saw with an unfriendly eye the perspective of our growing greatness.

³⁷ In a review of these transactions we may trace some of the causes which would be likely to embroil the states with each other if it should be their unpropitious destiny to become disunited.

³⁸ The competitions of commerce would be another fruitful source of contention.

³⁹ The states less favorably circumstanced would be desirous of escaping from the disadvantages of local situation and of sharing in the advantages of their more fortunate neighbors.

⁴⁰ Each state or separate confederacy would pursue a system of commercial policy peculiar to itself.

⁴¹ This would occasion distinctions, preferences and exclusions which would beget discontent.

⁴² The habits of intercourse, on the basis of equal privileges, to which we have been accustomed since the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have independent of this circumstance.

⁴³ We should be ready to denominate injuries those things which were in reality the justifiable acts of independent sovereignties consulting a distinct interest.

⁴⁴ The spirit of enterprise which characterizes the commercial part of America has left no occasion of displaying itself unimproved.

⁴⁵ It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens.

⁴⁶ The infractions of these regulations on one side, the efforts to prevent and repel them on the other, would naturally lead to outrages and these to reprisals and wars.

⁴⁷ The opportunities which some states would have of rendering others tributary to them by commercial regulations would be impatiently submitted to by the tributary states.

⁴⁸ The relative situation of New York, Connecticut and New Jersey would afford an example of this kind.

⁴⁹ New York, from the necessities of revenue, must lay duties on her importations.

⁵⁰ A great part of these duties must be paid by the inhabitants of the two other states in the capacity of consumers of what we import.

⁵² Her citizens would not consent that a duty paid by them should be remitted in favor of the citizens of her neighbors; nor would it be practicable, if there were not this impediment in the way, to distinguish the customers in our own markets.

⁵³ Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit?

⁵⁴ Should we be long permitted to remain in the quiet and undisturbed enjoyment of a metropolis from the possession of which we derived an advantage so odious to our neighbors and in their opinion so oppressive?

⁵⁵ Should we be able to preserve it against the incumbent weight of Connecticut on the one side and the co-operating pressure of New Jersey on the other?

⁵⁷ The public debt of the Union would be a further cause of collision between the separate states or confederacies.

⁵⁸ The apportionment in the first instance and the progressive extinguishment afterward would be alike productive of ill humor and animosity.

⁵⁹ How would it be possible to agree upon a rule of apportionment satisfactory to all?

⁶⁰ There is scarcely any that can be proposed which is entirely free from real objections.

⁶¹ These, as usual, would be exaggerated by the adverse interest of the parties.

⁶² There are even dissimilar views among the states as to the general principle of discharging the public debt.

⁶³ Some of them, either less impressed with the importance of national credit or because their citizens have little if any immediate interest in the question, feel an indifference, if not a repugnance, to the payment of the domestic debt at any rate.

⁶⁵ Others of them, a numerous body of whose citizens are creditors to the public beyond proportion of the state in the total amount of the national debt, would be strenuous for some equitable and effective provision.

⁶⁶ The [procrastination] of the former would excite the [resentment] of the latter.

⁶⁷ The settlement of a rule would in the meantime be postponed by real differences of opinion and affected delays.

⁶⁸ The citizens of the states interested would clamor, foreign powers would urge for the satisfaction of their just demands, and the peace of the states would be hazarded to the double contingency of external invasion and internal contention.

⁶⁹ Suppose the difficulties of agreeing upon a rule surmounted and the apportionment made.

⁷⁰ Still there is great room to suppose that the rule agreed upon would upon experiment be found to bear harder upon some states than upon others.

⁷¹ Those which were sufferers by it would naturally seek for a mitigation of the burden. 72 The others would as naturally be disinclined to a revision, which was likely to end in an increase of their own encumbrances.

⁷³ Their refusal would be too plausible a pretext to the complaining states to withhold their contributions, not to be embraced with avidity, and the noncompliance of these states with their engagements would be a ground of bitter discussion and altercation.

⁷⁴ If even the rule adopted should in practice justify the equality of its principle, still delinquencies in payments on the part of some of the states would result from a diversity of other causes – the real deficiency of resources, the mismanagement of their finances, accidental disorders in the management of the government, and in addition to the rest the reluctance with which men commonly part with money for purposes that have outlived the exigencies which produced them and interfere with the supply of immediate wants.

⁷⁵ Delinquencies, from whatever causes, would be productive of complaints, recriminations and quarrels.

⁷⁶ There is perhaps nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit.

⁷⁷ For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.

⁷⁸ Laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them, may be considered as another probable source of hostility.

⁷⁹ We are not authorized to expect that a more liberal or more equitable spirit would preside over the [legislation] of the individual states hereafter, if unrestrained by any additional checks, than we have heretofore seen in too many instances disgracing their several codes.

⁸⁰ We have observed the disposition to retaliation excited in Connecticut in consequence of the enormities perpetrated by the legislature of Rhode Island, and we reasonably infer that in similar cases under other circumstances, a war, not of parchment, but of the sword, would chastise such atrocious breaches of moral obligation and social justice.

⁸¹ The probability of incompatible alliances between the different states or confederacies and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. 82 From the view they have exhibited of this part of the subject, this conclusion is to be drawn – that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would by the operation of such jarring alliances be gradually entangled in all the pernicious labyrinths of European politics and wars, and by the destructive contentions of the parts into which she was divided would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.

⁸³ Divide et impera * must be the motto of every nation that either hates or fears us.

By now the reader understands Hamilton’s and Jay’s point – the political entities they were addressing were no longer colonies, but what were they? The term “state” conjures up a specific meaning in political science, and these men, not to mention the inhabitants, felt very much that they were in that sense states, were indeed sovereign at the present, and just as individual citizens within them, they would necessarily cede certain rights for the advantages of their place in a greater whole. The entire point of the debate roiling about them was that these prickly, independent entities would have to be coaxed to cede those rights willingly.

They were certainly separate and unique entities to Hamilton, Jay and the rest, and if the former’s attentions seem addressed to the people of New York, that was a recognition of New York’s primacy as an urban enclave over even those established centers of American culture as Philadelphia and Boston, the estates of Virginia, and the ballrooms of Charleston. Yet this was no declaration of primacy at all, but a recognition that other places had their own claims and interests, and that in pursuing them conflict was inevitable.

⁵³ Would Connecticut and New Jersey long submit to be taxed by New York for her exclusive benefit?

⁶ Territorial disputes have at all times been found one of the most fertile sources of hostility among nations.

³⁸ The competitions of commerce would be another fruitful source of contention.

⁵⁷ The public debt of the Union would be a further cause of collision between the separate states or confederacies.

Certainly the existing public debt was already a source of contention, more specifically how debts contracted by the Confederation were to be distributed among its constituent parts. This argument paralleled that of representation within the federal government: was it to be per state, in which the lesser populated states would bear an unfair share per capita; or by population, in which the more populated states would bear an unfair share per state? One is reminded that this issue was addressed by the Connecticut Compromise that satisfied both approaches by proposing a separate House of Congress patterned after each. It is less obvious that the matter of public debt could be addressed quite that adroitly, and in the absence of that ingenious artifice, it was hardly likely to be settled satisfactorily at all.

As for laws in violation of private contracts, this was essentially an appeal for some sort of body of mediation between the states that a federal government, and no other body at the time, could offer. As a matter of fundamental theoretical importance it must strike the modern observer as ancillary at best; as a potential source of conflict, it was anything but.

Commercial conflicts were not simply a prediction, they were a long established reality in those days of wild free market capitalism, fed by the uncomfortable fact that even within their native states the citizens were notably disinclined to follow laws that did not suit them.

⁴⁵ It is not at all probable that this unbridled spirit would pay much respect to those regulations of trade by which particular states might endeavor to secure exclusive benefits to their own citizens.

⁴⁶ The infractions of these regulations on one side, the efforts to prevent and repel them on the other, would naturally lead to outrages and these to reprisals and wars.

It was, after all, a tax on tea that had provided the seed for all that followed. Hamilton was not specific as to whether the target of his predicted resentment would be intra- or inter-state in nature; one is tempted to the conclusion that knowing his people, he would be inclined to answer, “Both.” Behind a civilized, if a bit contrived, asseveration that peace was the unquestionable goal, one senses a reluctant acknowledgment of a penchant for conflict that was – and remains – a characteristic of the American people.

¹⁷ At present, a large part of the vacant western territory is, by cession at least, if not by any anterior right, the common property of the Union.

²³ In the wide field of western territory, therefore, we perceive an ample theater for hostile pretensions without any umpire or common judge to interpose between the contending parties.

That issue did arise in a slightly different form and had complications that helped throw the North and the South into a shooting war, but it wasn’t claims made by existing states that touched the flame to the fuse, but the nature of new states created out of this land and their probable effect on the status quo. It was here that the Connecticut Compromise bore bitter fruit, for although new states were unlikely to be anything but sparsely populated, at least in the beginning, they would enjoy in the Senate a representation equal to any of the original Thirteen. Why that was a problem will become apparent shortly.

To which vast western lands was Hamilton referring? One visualizes prairie schooners flying at breakneck speed in the Oklahoma land rush, but that was still in the scarcely imaginable future. At the time of writing Kentucky was a wilderness, the Louisiana Purchase years away, and Great Britain and Spain retained claims within the continental interior.

It was, in fact, northwest where Hamilton was turning. The territory described under the Northwest Ordinance contained present day Ohio, Michigan, Wisconsin and Illinois. It was with an eye to the very issue of the states’ territorial ambitions that Jefferson proposed in 1784 that the states relinquish their claims to all lands west of the Appalachians, that land to be held in common instead of being subjected to the conflicting claims of Massachusetts, Connecticut, New York and Virginia. Jefferson proposed cutting up this enormous territory into no fewer than seventeen new states, carrying such fanciful names as Cheronesus, Assenisipia and Washington. It delineated criteria under which newly formed states could join the United States. The later Ordinance of 1787 insisted that civil rights in these future states include a list that would be strikingly similar to the Bill of Rights so soon to be appended to the Constitution itself. It insisted on one more thing: that those states not permit the institution of slavery within their borders.

It has become fashionable of late to emphasize the slave-owning antecedents of such Founders as the Virginians: Washington, who freed his only upon his death, and the proponent of the Northwest Ordinance, Jefferson. Yet clearly here was an attempt to keep that institution from proliferating, and due to the nature of the Connecticut Compromise, that meant a slaveholding South that would slowly be outnumbered and outvoted by new non-slaveholding states. The issue was to erupt in “Bleeding Kansas” shortly before the Civil War. Its roots lie here, before the Constitution was even ratified.

This is only one of the many undercurrents to what seems at first the straightforward matter of the approval of the proposed plan of government. No one with the wherewithal to possess a map could deny that the country was going to expand; the question was would it be as one nation or many? Here Hamilton was addressing not only the potential for conflict among the existing states but between those yet to come.

⁸³ Divide et impera must be the motto of every nation that either hates or fears us.

Divide and command, conquer, divide and rule, and that division was as likely to come from American influence as European. This new Constitution would be a safeguard against it, through space and time beyond Hamilton’s wildest dreams.

King Charles II had granted the land around Scranton and Wilkes-Barre to Connecticut, and then 19 years later he granted the same land to William Penn. King George III upheld the Connecticut claim, and when men from Connecticut settled in the Wyoming Valley, they found themselves in a war with the Pennsylvania inhabitants. The ground was still smoking from this dispute when the shots were fired at Lexington.

When the Revolution ended, the Confederation Congress decided the dispute in favor of Pennsylvania, but that only set off another series of battles, which escalated when the Vermont Republic took sides with Connecticut and sent troops to Pennsylvania. At the time of the Constitutional Convention, there was an armed standoff in the valley.

After ratification of the Constitution, Pennsylvania confirmed the land claims within the Wyoming Valley, making the inhabitants officially Pennsylvanians and settling the dispute.

The land known as Vermont had long been a bone of contention between the colonial governments of New York and New Hampshire. New York had granted great swaths of land to the prominent patroon families of the state who intended to expand the feudal arrangements of the Hudson River Valley to the new territory. New Hampshire gave smaller grants of the same land to yoeman farmers who occupied and tilled the land. New York sent sheriffs to drive the farmers off the land, but that was met with violence, much of it from Ethan Allen’s militia. War might have erupted, but the concurrent disputations with Great Britain showed that there were far more important issues.

When the settlers found that neither New York nor the Continental Congress would accept their claims to the land, they formed an independent republic with the intent of eventually entering the United States when the land issue was resolved.

But in the latter days of the Revolution, Ethan Allen opened secret negotiations with Canada to rejoin the British Empire, which failed. After the Treaty of Paris, Vermont petitioned to enter the US. As a congressman representing the interests of New York, Alexander Hamilton steered a resolution of coercion against Vermont through the Confederation Congress, but he discreetly warned Governor Clinton not to count on any use of force because so many officers of the Continental Army held land grants from the Vermont Republic.

The Constitutional Convention treated Vermont as a part of New York, but New York quietly agreed to permit Vermont to enter as a state once the process of settling land claims was fixed. A few years after the Constitution was ratified, Vermont agreed to indemnity New York and joined the Union as the 14th state.

Please refer to my Post #9 on the Federalist 6 Thread. My comments there involved the impact on the states and our liberty of departures from the Framers' built-in protections and provisions over the 200+ years since 1787.

Here are excerpts from that Post:

"In the Constitution of 1787, the Founders believed they had provisions and protections, including those which protected the concept of Federalism, to prevent such "aggrandize(ment)" by some at the "expense" of others.

"Tracing the history of how we have allowed the erosion of the principle of Federalism, combined with other violations of constitutional principle which have occurred over 200+ years, how does this "intelligent writer's" conclusion apply to states like California and others whose mismanagement now causes them "to aggrandize themselves at the expense of" other states who have been more prudent?

"See an essay entitled, "Federalism - the Division of Powers Between the National and State Governments," Part V, pp 90 - 96, "Our Ageless Constitution," which closes with this powerful 1821 declaration by Thomas Jefferson:

". . . when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."

"The constitutional scholars who contributed to this volume's, powerful Part V essays traced the actions which have weakened the original protections and provisions of the Framers' Constitution over the 200 years from 1787 to its publication date in 1987."

The Articles of Confederation obliged the parties to submit the matter to the decision of a federal court.

Well, a sort of federal court. From Article IX of the Articles of Confederation: "The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more state concerning boundary, jurisdiction, or any other cause whatever; . . . " This is a very long and convoluted Article.

One problem immediately come to mind. The mixing of judicial and legislative responsibilities in one body is dangerous to liberties, as we see today in administrative agencies that write regulations, enforce and determine fines and penalties on their own. In this particular sense it took over 150 years to corrupt the Constitution to the point at which we began under the Articles.

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“ The mixing of judicial and legislative responsibilities in one body is dangerous to liberties, as we see today in administrative agencies that write regulations, enforce and determine fines and penalties on their own.”

A bit of understatement?
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