FReeper Book Club: The Debate over the Constitution, Federalist #19

Madison and Hamilton now dissect the remains of the Holy Roman Empire, the German city-states. They also take notice of Poland, which had recently been dismembered, and Switzerland.

² The examples of ancient confederacies cited in my last paper have not exhausted the source of experimental instruction on this subject.

³ There are existing institutions founded on a similar principle which merit particular consideration.

⁵ In the early ages of Christianity, Germany was occupied by seven distinct nations who had no common chief.

⁶ The Franks, one of the number, having conquered the Gauls, established the kingdom which has taken its name from them.

⁷ In the Ninth Century, Charlemagne, its warlike monarch, carried his victorious arms in every direction, and Germany became a part of his vast dominions.

⁸ On the dismemberment which took place under his sons, this part was erected into a separate and independent empire.

⁹ Charlemagne and his immediate descendants possessed the reality, as well as the ensigns and dignity, of imperial power.

¹⁰ But the principal vassals, whose fiefs had become hereditary and who composed the national diets which Charlemagne had not abolished, gradually threw off the yoke and advanced to sovereign jurisdiction and independence.

¹¹ The force of imperial sovereignty was insufficient to restrain such powerful dependants or to preserve the unity and tranquillity of the empire.

¹² The most furious private wars, accompanied with every species of calamity, were carried on between the different princes and states.

¹³ The imperial authority, unable to maintain the public order, declined by degrees till it was almost extinct in the anarchy, which agitated the long interval between the death of the last emperor of the Suabian and the accession of the first emperor of the Austrian lines.

¹⁴ In the Eleventh Century the emperors enjoyed full sovereignty; in the Fifteenth they had little more than the symbols and decorations of power.

¹⁵ Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic Empire.

¹⁶ Its powers are vested in a Diet representing the component members of the confederacy; in the Emperor, who is the executive magistrate with a negative on the decrees of the diet; and in the Imperial Chamber and the Aulic Council, two judiciary tribunals having supreme jurisdiction in controversies which concern the Empire or which happen among its members.

¹⁷ The Diet possesses the general power of legislating for the Empire: of making war and peace, contracting alliances, assessing quotas of troops and money, constructing fortresses, regulating coin, admitting new members, and subjecting disobedient members to the ban of the empire, by which the party is degraded from his sovereign rights and his possessions forfeited.

¹⁸ The members of the confederacy are expressly restricted from entering into compacts prejudicial to the Empire: from imposing tolls and duties on their mutual intercourse without the consent of the Emperor and Diet, from altering the value of money, from doing injustice to one another, or from affording assistance or retreat to disturbers of the public peace.

¹⁹ And the ban is denounced against such as shall violate any of these restrictions.

²⁰ The members of the Diet, as such, are subject in all cases to be judged by the Emperor and Diet, and in their private capacities by the Aulic Council and Imperial Chamber.

²² The most important of them are: his exclusive right to make propositions to the Diet, to negative its resolutions, to name ambassadors, to confer dignities and titles, to fill vacant electorates, to found universities, to grant privileges not injurious to the states of the Empire, to receive and apply the public revenues, and generally to watch over the public safety.

²⁴ In quality of Emperor, he possesses no territory within the Empire nor receives any revenue for his support.

²⁵ But his revenue and dominions, in other qualities, constitute him one of the most powerful princes in Europe.

²⁶ From such a parade of constitutional powers in the representatives and head of this confederacy, the natural supposition would be that it must form an exception to the general character which belongs to its kindred systems.

²⁸ The fundamental principle on which it rests, that the Empire is a community of sovereigns, that the Diet is a representation of sovereigns, and that the laws are addressed to sovereigns, renders the Empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.

²⁹ The history of Germany is a history of wars between the Emperor and the princes and states, of wars among the princes and states themselves, of the licentiousness of the strong and the oppression of the weak, of foreign intrusions and foreign intrigues, of requisitions of men and money disregarded or partially complied with, of attempts to enforce them altogether abortive or attended with slaughter and desolation involving the innocent with the guilty, of general imbecility, confusion and misery.

³⁰ In the Sixteenth Century, the Emperor, with one part of the Empire on his side, was seen engaged against the other princes and states.

³¹ In one of the conflicts, the Emperor himself was put to flight and very near being made prisoner by the Elector of Saxony.

³² The late King of Prussia was more than once pitted against his imperial sovereign and commonly proved an overmatch for him.

³³ Controversies and wars among the members themselves have been so common that the German annals are crowded with the bloody pages which describe them.

³⁴ Previous to the Peace of Westphalia, Germany was desolated by a war of thirty years in which the Emperor, with one half of the Empire, was on one side, and Sweden, with the other half, on the opposite side.

³⁵ Peace was at length negotiated and dictated by foreign powers, and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.

³⁶ If the nation happens on any emergency to be more united by the necessity of self defense, its situation is still deplorable.

³⁷ Military preparations must be preceded by so many tedious discussions arising from the jealousies, pride, separate views and clashing pretensions of sovereign bodies that before the Diet can settle the arrangements, the enemy are in the field, and before the federal troops are ready to take it, are retiring into winter quarters.

³⁸ The small body of national troops which has been judged necessary in time of peace is defectively kept up, badly paid, infected with local prejudices and supported by irregular and disproportionate contributions to the treasury.

³⁹ The impossibility of maintaining order and dispensing justice among these sovereign subjects produced the experiment of dividing the Empire into nine or ten circles or districts, of giving them an interior organization, and of charging them with the military execution of the laws against delinquent and contumacious members.

⁴⁰ This experiment has only served to demonstrate more fully the radical vice of the constitution.

⁴¹ Each circle is the miniature picture of the deformities of this political monster.

⁴² They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war.

⁴³ Sometimes whole circles are defaulters, and then they increase the mischief which they were instituted to remedy.

⁴⁴ We may form some judgment of this scheme of military coercion from a sample given by Thuanus.

⁴⁵ In Donawerth, a free and imperial city of the circle of Suabia, the Abbe de St. Croix enjoyed certain immunities which had been reserved to him.

⁴⁶ In the exercise of these, on some public occasions outrages were committed on him by the people of the city.

⁴⁷ The consequence was that the city was put under the Ban of the Empire, and the Duke of Bavaria, though director of another circle, obtained an appointment to enforce it.

⁴⁸ He soon appeared before the city with a corps of ten thousand troops, and finding it a fit occasion, as he had secretly intended from the beginning, to revive an antiquated claim on the pretext that his ancestors had suffered the place to be dismembered from his territory ^*, he took possession of it in his own name, disarmed and punished the inhabitants, and re-annexed the city to his domains.

⁴⁹ It may be asked perhaps what has so long kept this disjointed machine from falling entirely to pieces?

⁵⁰ The answer is obvious: the weakness of most of the members, who are unwilling to expose themselves to the mercy of foreign powers; the weakness of most of the principal members, compared with the formidable powers all around them; the vast weight and influence which the Emperor derives from his separate and hereditary dominions; and the interest he feels in preserving a system with which his family pride is connected and which constitutes him the first prince in Europe – these causes support a feeble and precarious union whilst the repellant quality, incident to the nature of sovereignty and which time continually strengthens, prevents any reform whatever founded on a proper consolidation.

⁵¹ Nor is it to be imagined if this obstacle could be surmounted that the neighboring powers would suffer a revolution to take place which would give to the Empire the force and preeminence to which it is entitled.

⁵² Foreign nations have long considered themselves as interested in the changes made by events in this constitution and have on various occasions betrayed their policy of perpetuating its anarchy and weakness.

⁵³ If more direct examples were wanting, Poland, as a government over local sovereigns, might not improperly be taken notice of.

⁵⁴ Nor could any proof more striking be given of the calamities flowing from such institutions.

⁵⁵ Equally unfit for self government and self defense, it has long been at the mercy of its powerful neighbors who have lately had the mercy to disburden it of one third of its people and territories.

⁵⁶ The connection among the Swiss cantons scarcely amounts to a confederacy, though it is sometimes cited as an instance of the stability of such institutions.

⁵⁷ They have no common treasury, no common troops even in war, no common coin, no common judicatory, nor any other common mark of sovereignty.

⁵⁸ They are kept together by the peculiarity of their topographical position, by their individual weakness and [insignificance], by the fear of powerful neighbors to one of which they were formerly subject, by the few sources of contention among a people of such simple and homogeneous manners, by their joint interest in their dependent possessions, by the mutual aid they stand in need of for suppressing insurrections and rebellions, an aid expressly stipulated and often required and afforded, and by the necessity of some regular and permanent provision for accommodating disputes among the cantons.

⁵⁹ The provision is that the parties at variance shall each choose four judges out of the neutral cantons, who in case of disagreement choose an umpire.

⁶⁰ This tribunal, under an oath of impartiality, pronounces definitive sentence which all the cantons are bound to enforce.

⁶¹ The competency of this regulation may be estimated by a clause in their treaty of 1683 with Victor Amadeus of Savoy in which he obliges himself to interpose as mediator in disputes between the cantons and to employ force if necessary against the contumacious party.

⁶² So far as the peculiarity of their case will admit of comparison with that of the United States, it serves to confirm the principle intended to be established.

⁶³ Whatever efficacy the union may have had in ordinary cases, it appears that the moment a cause of difference sprang up capable of trying its strength, it failed.

⁶⁴ The controversies on the subject of religion, which in three instances have kindled violent and bloody contests, may be said in fact to have severed the league.

⁶⁵ The Protestant and Catholic cantons have since had their separate diets where all the most important concerns are adjusted and which have left the general diet little other business than to take care of the common bailages.

⁶⁷ It produced opposite alliances with foreign powers: of Berne, at the head of the Protestant association, with the United Provinces; and of Luzerne, at the head of the Catholic association, with France.

[*] Pfeffel, Nouvel Abreg. Chronol. de l'Hist., etc., d'Allemagne says the pretext was to indemnify himself for the expense of the expedition.

Here, more clearly than in the previous essay, Hamilton and Madison are attempting to make a case for the centralization of power within the American government based on historical precedent, that precedent leading to the conclusion that certain “existing institutions” (3) exhibited deficiencies that could be ascribed to insufficient centralization. These institutions are those of the Holy Roman Empire, the Polish-Lithuanian Commonwealth, and the Swiss cantons.

Of the first, it is not entirely a fair criticism to point out the drastic oversimplification with which some four hundred years of history are compressed into lines that fit within the constraints of a newspaper column. The authors are, after all, arguing principle instead of actual historical congruence and are dealing with feudal kingdoms and free cities, not American states.

¹⁵ Out of this feudal system, which has itself many of the important features of a confederacy, has grown the federal system which constitutes the Germanic Empire.

The specific features consist of the distribution of power between the center and the periphery within the Holy Roman Empire, which Voltaire had wittily remarked was actually none of the three. There are, however, difficulties at the outset with this model.

¹⁶ Its powers are vested in a Diet representing the component members of the confederacy…

The impression is of more sweeping power than the historical record substantiates. Briefly, since 1356, the Emperor himself was elected by seven Electors, who represented the interests of seven centers of economic and military power within what could broadly be described as Germany. These were not elements of representative government; in fact, what was represented were actually the interests of the Church and the aristocracy. When, as the Reformation swept through Germany, it became apparent that the delicate balance of power between Protestant and Catholic would manifest itself in the ability of those respective factions to elect an Emperor, the number of Electors was changed to eight, and then to nine, to avoid the unavoidable bloodshed to come.

Worse for Germany, the ability to elect an Emperor became a central issue between not only those more or less sovereign states that produced the Electors, but to outside interests as well, such as the French, the Danish and the Swedish. The result was the holocaust named the Thirty Years War. At the time of the writing of the Federalist Papers, this had only been resolved for some 140 years, rather less than the time between the present and the American Civil War, and just as with the latter, the bitterness and controversy remained. The resolution – the Peace of Westphalia – altered the Empire forever, divesting the Emperor of the last vestiges of his own sovereignty (34).

The reader notes that what was significant in the eyes of Hamilton and Madison was that the peace was dictated by outsiders.

³⁵ Peace was at length negotiated and dictated by foreign powers, and the articles of it, to which foreign powers are parties, made a fundamental part of the Germanic constitution.

The authors, Hamilton especially, have been criticized for an untoward enthusiasm for the centralization of power. This was the reason, and it appears throughout the Federalist – a fear that insufficient concentration of federal power would lead the new American government back into the helplessness typified by a powerless Holy Roman Emperor whose country’s peace, and its future, were dictated by outside powers.

Within Germany as well, the inability of the Emperor to control his constituents caused certain of them to exhibit a predatory face to others (47, 48). These, then, are the hazards the authors are predicting for the new America: anarchy and the triumph of the strong states over the weaker by brute force, and their own eventual subordination to outside powers. Worse, this precarious state of affairs in Germany had attained a malignant stability that prevented reform.

⁴⁹ It may be asked perhaps what has so long kept this disjointed machine from falling entirely to pieces?

All this because the nature of the confederation that was the Holy Roman Empire had failed to grant the Emperor powers sufficient to stop it, allowing the constituent members to prey on one another, and Germany’s neighbors to prey on them. The parallels to a relatively weak Confederation Congress and the vigor of the governments of the sovereign states were so obvious they scarcely needed pointing out.

Was this an entirely fair representation of the incredibly complex arrangement of power that described the real Holy Roman Empire? Probably not, but Hamilton’s and Madison’s purpose was not to write history but to use it to illustrate the principles of political theory.

One moves to a consideration of another European confederation of some two centuries’ standing, that of the Polish-Lithuanian Commonwealth whose first partition in 1772 was, for Hamilton and Madison’s readers, the equivalent of front page news. Clearly those readers were expected to be familiar enough with that situation for the authors to dispose of it in three rather less than respectful lines. The reader notes once again the appearance of foreign powers in this complaint.

⁵⁵ Equally unfit for self government and self defense, it has long been at the mercy of its powerful neighbors who have lately had the mercy to disburden it of one third of its people and territories.

The partition referenced is between the Continent’s principal powers, Prussia and Austria, who represented the two poles of power between which the Holy Roman Empire as well would itself be fatally torn in 1806, and the rising power of Russia. The Seven Years War between Prussia, Austria, France and England had bled over into the New World as the French and Indian War, giving George Washington his first taste of military command. One year after the publication of the Federalist Papers the naval hero of the War of Independence, John Paul Jones, would be working for Catherine the Great of Russia. All of this was not ancient history to Hamilton and Madison or their readers, but contemporary news.

Furthermore, this was the same Poland whose might had saved Europe, and more particularly Vienna and the Habsburgs, from the Ottoman invasion a mere hundred years before. That Poland had a king; the one that had just been partitioned for the first time of three, had squabbling nobles with their own separate interests. That Hamilton and Madison felt it unnecessary to expound on this in any detail argues for how familiar they felt it to be to their readers.

Finally the authors address the Swiss cantons, examples of elective government in the form of a confederation that had broken off from the Holy Roman Empire in 1499. These were nearly evenly split between the forest cantons, democratic republics, and the urban cantons, oligarchic republics, governed by an overall confederation that, like the Confederation Congress, did not enjoy the power of direct taxation.

Hamilton’s and Madison’s treatment seems to the modern eye to be unnecessarily insulting, although not altogether inaccurate.

One hopes that no Swiss of the time read this curt dismissal. In fact, a closer reading of this essay reveals that Hamilton and Madison were perfectly aware that the same Peace of Westphalia that had ended the Thirty Years War had, contrary to the “simple and homogeneous” characterization, left the cantons split along the same Protestant and Catholic lines (65) that had just devastated Europe. Little wonder then that an outside agency was necessary to act as a neutral judge between them (61). Hamilton and Madison appear to be suggesting (63) that this recourse, and the split that necessitated it, was a consequence of insufficient power granted to the overall confederation, a case that appears to the modern eye tenuous at best. No confederate power in Europe, indeed, no power in Europe of any sort, had managed to prevent that schism.

One is left, then, with the central argument: that confederations that were insufficiently centralized had spun apart from both internal faction and external influence. The piece ends rather abruptly at this point, truncated no doubt by the constraints of the medium in which it was published. It would be concluded in the last of the six that make up this segment of the Federalist Papers.

A BTT for the morning crowd. The argument is slowly coalescing around two points of view: that of Hamilton and Madison (and their allies) that the current system would lead to internal conflict and overall weakness that would place the new nation at the mercy of foreign interests, and that of certain less well-identified critics (Clinton, Yates, Mason, Monroe, Henry, and Sam Adams) that a government with sufficient concentration of power to accomplish that would trend inevitably toward despotism.

I think it is probable that both sides were correct. The real world is, after all, rather more complicated than the simplifications inherent to political theory. Indeed, a number of the Founders including nearly everyone listed above found themselves trying to maneuver between the two positions. And so, what middle course could they find that might avoid both sets of hazards? That's where this is going.

What we got out of it was a Bill of Rights. The contention of the Hamilton camp was that it was unnecessary inasmuch as the federal government could only act within those powers enumerated in the Constitution. That's easier for us to laugh at now given two centuries of hindsight, but even to the critics of the day it was obvious that it wouldn't go down that way. The contention of the critics, Mason especially, was that a Bill of Rights was the only thing that might prevent it - in fact, it only delayed it - and that instead of only the one function of delineating citizen's inviolable rights, a Bill of Rights would also function to force the federal government back to an arena within the enumerated powers. And so it did, more or less.

It is this dynamic tension between necessary powers and inviolable rights that encompasses not only the argument over the proposed Constitution, but all of American political theory and behavior since then. Small corrections for small encroachments are beneficial to the overall polity - large encroachments, even over time, are apt to be addressed by large and disruptive corrections. Unfortunately gradual encroachments do not seem to be historically remediated by gradual increases of liberty; the ratchet seems to work only in the direction of increasing power for those turning the handle, until something breaks. And when it breaks, things do tend to get disruptive. Whether we've reached that point yet is a topic as much under discussion today as it was for the Founders.

Well, you found it. Welcome to the book club.

Thanks. I went to the local library (small town) to get a discussion book on the Federalist Papers. I had to order it, so..... I'm reading Fred Barbash's The Founding. He seems fairly conservative, at least in his Preface, but he maintains that Madison and Hamilton wanted a more powerful central government, and actually disdained States Rights. I always thought the Constitution framers were more state's rights fans, but realized we needed a wee bit stronger federal (central) government and wrote the Constitution accordingly.

Barbash also mentions Madison's Notes of Debates in the Federal Constitution of 1787. Does anyone know if it worth trying to locate this? I've read Page Smith's A New Age Now Begins (although I lost the books due to water damage . . .), and his chapters on the Convention were very informative. I really liked the part where a copy of the minutes (or notes) was found outside the meeting room and Washington informed the group of such. He said the owner may retrieve the copy any time from his desk (under Washington's watchful eye!). No one ever claimed them!! Classic Washington.

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