most enlightened legislatures and jurists, has been equally
unsuccessful in delineating the several objects and limits of different
codes of laws and different tribunals of justice. The precise extent of
the common law, and the statute law, the maritime law, the
ecclesiastical law, the law of corporations, and other local laws and
customs, remains still to be clearly and finally established in Great
Britain, where accuracy in such subjects has been more industriously
pursued than in any other part of the world. The jurisdiction of her
several courts, general and local, of law, of equity, of admiralty,
etc., is not less a source of frequent and intricate discussions,
sufficiently denoting the indeterminate limits by which they are
respectively circumscribed. All new laws, though penned with the
greatest technical skill, and passed on the fullest and most mature
deliberation, are considered as more or less obscure and equivocal,
until their meaning be liquidated and ascertained by a series of
particular discussions and adjudications. Besides the obscurity arising
from the complexity of objects, and the imperfection of the human
faculties, the medium through which the conceptions of men are conveyed
to each other adds a fresh embarrassment. The use of words is to
express ideas. Perspicuity, therefore, requires not only that the ideas
should be distinctly formed, but that they should be expressed by words
distinctly and exclusively appropriate to them. But no language is so
copious as to supply words and phrases for every complex idea, or so
correct as not to include many equivocally denoting different ideas.
Hence it must happen that however accurately objects may be
discriminated in themselves, and however accurately the discrimination
may be considered, the definition of them may be rendered inaccurate by
the inaccuracy of the terms in which it is delivered. And this
unavoidable inaccuracy must be greater or less, according to the
complexity and novelty of the objects defined. When the Almighty
himself condescends to address mankind in their own language, his
meaning, luminous as it must be, is rendered dim and doubtful by the
cloudy medium through which it is communicated.
Here, then, are three sources of vague and incorrect definitions:
indistinctness of the object, imperfection of the organ of conception,
inadequateness of the vehicle of ideas. Any one of these must produce a
certain degree of obscurity. The convention, in delineating the
boundary between the federal and State jurisdictions, must have
experienced the full effect of them all.
To the difficulties already mentioned may be added the interfering
pretensions of the larger and smaller States. We cannot err in
supposing that the former would contend for a participation in the
government, fully proportioned to their superior wealth and importance;
and that the latter would not be less tenacious of the equality at
present enjoyed by them. We may well suppose that neither side would
entirely yield to the other, and consequently that the struggle could
be terminated only by compromise. It is extremely probable, also, that
after the ratio of representation had been adjusted, this very
compromise must have produced a fresh struggle between the same
parties, to give such a turn to the organization of the government, and
to the distribution of its powers, as would increase the importance of
the branches, in forming which they had respectively obtained the
greatest share of influence. There are features in the Constitution
which warrant each of these suppositions; and as far as either of them
is well founded, it shows that the convention must have been compelled
to sacrifice theoretical propriety to the force of extraneous
considerations.
Nor could it have been the large and small States only, which would
marshal themselves in opposition to each other on various points. Other
combinations, resulting from a difference of local position and policy,
must have created additional difficulties. As every State may be
divided into different districts, and its citizens into different
classes, which give birth to contending interests and local jealousies,
so the different parts of the United States are distinguished from each
other by a variety of circumstances, which produce a like effect on a
larger scale. And although this variety of interests, for reasons
sufficiently explained in a former paper, may have a salutary influence
on the administration of the government when formed, yet every one must
be sensible of the contrary influence, which must have been experienced
in the task of forming it.
Would it be wonderful if, under the pressure of all these difficulties,
the convention should have been forced into some deviations from that
artificial structure and regular symmetry which an abstract view of the
subject might lead an ingenious theorist to bestow on a Constitution
planned in his closet or in his imagination? The real wonder is that so
many difficulties should have been surmounted, and surmounted with a
unanimity almost as unprecedented as it must have been unexpected. It
is impossible for any man of candor to reflect on this circumstance
without partaking of the astonishment. It is impossible for the man of
pious reflection not to perceive in it a finger of that Almighty hand
which has been so frequently and signally extended to our relief in the
critical stages of the revolution.
We had occasion, in a former paper, to take notice of the repeated
trials which have been unsuccessfully made in the United Netherlands
for reforming the baneful and notorious vices of their constitution.
The history of almost all the great councils and consultations held
among mankind for reconciling their discordant opinions, assuaging
their mutual jealousies, and adjusting their respective interests, is a
history of factions, contentions, and disappointments, and may be
classed among the most dark and degraded pictures which display the
infirmities and depravities of the human character. If, in a few
scattered instances, a brighter aspect is presented, they serve only as
exceptions to admonish us of the general truth; and by their lustre to
darken the gloom of the adverse prospect to which they are contrasted.
In revolving the causes from which these exceptions result, and
applying them to the particular instances before us, we are necessarily
led to two important conclusions. The first is, that the convention
must have enjoyed, in a very singular degree, an exemption from the
pestilential influence of party animosities the disease most incident
to deliberative bodies, and most apt to contaminate their proceedings.
The second conclusion is that all the deputations composing the
convention were satisfactorily accommodated by the final act, or were
induced to accede to it by a deep conviction of the necessity of
sacrificing private opinions and partial interests to the public good,
and by a despair of seeing this necessity diminished by delays or by
new experiments.
PUBLIUS
THE FEDERALIST.
No. XXXVIII.
The Same Subject Continued, and the Incoherence of the Objections to
the New Plan Exposed
From the New York Packet.
Tuesday, January 15, 1788.
MADISON
To the People of the State of New York:
It is not a little remarkable that in every case reported by ancient
history, in which government has been established with deliberation and
consent, the task of framing it has not been committed to an assembly
of men, but has been performed by some individual citizen of preeminent
wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of Crete,
as Zaleucus was of that of the Locrians. Theseus first, and after him
Draco and Solon, instituted the government of Athens. Lycurgus was the
lawgiver of Sparta. The foundation of the original government of Rome
was laid by Romulus, and the work completed by two of his elective
successors, Numa and Tullius Hostilius. On the abolition of royalty the
consular administration was substituted by Brutus, who stepped forward
with a project for such a reform, which, he alleged, had been prepared
by Tullius Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the author
of that which bore his name. The Achaean league received its first
birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in their
respective establishments, or how far they might be clothed with the
legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with
indefinite powers to reform its government and laws. And Solon,
according to Plutarch, was in a manner compelled, by the universal
suffrage of his fellow-citizens, to take upon him the sole and absolute
power of new-modeling the constitution. The proceedings under Lycurgus
were less regular; but as far as the advocates for a regular reform
could prevail, they all turned their eyes towards the single efforts of
that celebrated patriot and sage, instead of seeking to bring about a
revolution by the intervention of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the Greeks
were of their liberty, should so far abandon the rules of caution as to
place their destiny in the hands of a single citizen? Whence could it
have proceeded, that the Athenians, a people who would not suffer an
army to be commanded by fewer than ten generals, and who required no
other proof of danger to their liberties than the illustrious merit of
a fellow-citizen, should consider one illustrious citizen as a more
eligible depositary of the fortunes of themselves and their posterity,
than a select body of citizens, from whose common deliberations more
wisdom, as well as more safety, might have been expected? These
questions cannot be fully answered, without supposing that the fears of
discord and disunion among a number of counsellors exceeded the
apprehension of treachery or incapacity in a single individual. History
informs us, likewise, of the difficulties with which these celebrated
reformers had to contend, as well as the expedients which they were
obliged to employ in order to carry their reforms into effect. Solon,
who seems to have indulged a more temporizing policy, confessed that he
had not given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus, more
true to his object, was under the necessity of mixing a portion of
violence with the authority of superstition, and of securing his final
success by a voluntary renunciation, first of his country, and then of
his life. If these lessons teach us, on one hand, to admire the
improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on the
other, to admonish us of the hazards and difficulties incident to such
experiments, and of the great imprudence of unnecessarily multiplying
them.
Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated and
difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be ascertained
until an actual trial shall have pointed them out? This conjecture is
rendered probable, not only by many considerations of a general nature,
but by the particular case of the Articles of Confederation. It is
observable that among the numerous objections and amendments suggested
by the several States, when these articles were submitted for their
ratification, not one is found which alludes to the great and radical
error which on actual trial has discovered itself. And if we except the
observations which New Jersey was led to make, rather by her local
situation, than by her peculiar foresight, it may be questioned whether
a single suggestion was of sufficient moment to justify a revision of
the system. There is abundant reason, nevertheless, to suppose that
immaterial as these objections were, they would have been adhered to
with a very dangerous inflexibility, in some States, had not a zeal for
their opinions and supposed interests been stifled by the more powerful
sentiment of selfpreservation. One State, we may remember, persisted
for several years in refusing her concurrence, although the enemy
remained the whole period at our gates, or rather in the very bowels of
our country. Nor was her pliancy in the end effected by a less motive,
than the fear of being chargeable with protracting the public
calamities, and endangering the event of the contest. Every candid
reader will make the proper reflections on these important facts.
A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the characters of different
physicians, selects and calls in such of them as he judges most capable
of administering relief, and best entitled to his confidence. The
physicians attend; the case of the patient is carefully examined; a
consultation is held; they are unanimously agreed that the symptoms are
critical, but that the case, with proper and timely relief, is so far
from being desperate, that it may be made to issue in an improvement of
his constitution. They are equally unanimous in prescribing the remedy,
by which this happy effect is to be produced. The prescription is no
sooner made known, however, than a number of persons interpose, and,
without denying the reality or danger of the disorder, assure the
patient that the prescription will be poison to his constitution, and
forbid him, under pain of certain death, to make use of it. Might not
the patient reasonably demand, before he ventured to follow this
advice, that the authors of it should at least agree among themselves
on some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by the
latter, rather than be hearkening to those who could neither deny the
necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment. She
has been sensible of her malady. She has obtained a regular and
unanimous advice from men of her own deliberate choice. And she is
warned by others against following this advice under pain of the most
fatal consequences. Do the monitors deny the reality of her danger? No.
Do they deny the necessity of some speedy and powerful remedy? No. Are
they agreed, are any two of them agreed, in their objections to the
remedy proposed, or in the proper one to be substituted? Let them speak
for themselves. This one tells us that the proposed Constitution ought
to be rejected, because it is not a confederation of the States, but a
government over individuals. Another admits that it ought to be a
government over individuals to a certain extent, but by no means to the
extent proposed. A third does not object to the government over
individuals, or to the extent proposed, but to the want of a bill of
rights. A fourth concurs in the absolute necessity of a bill of rights,
but contends that it ought to be declaratory, not of the personal
rights of individuals, but of the rights reserved to the States in
their political capacity. A fifth is of opinion that a bill of rights
of any sort would be superfluous and misplaced, and that the plan would
be unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate. An
objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we are
alarmed with the amazing expense, from the number of persons who are to
administer the new government. From another quarter, and sometimes from
the same quarter, on another occasion, the cry is that the Congress
will be but a shadow of a representation, and that the government would
be far less objectionable if the number and the expense were doubled. A
patriot in a State that does not import or export, discerns insuperable
objections against the power of direct taxation. The patriotic
adversary in a State of great exports and imports, is not less
dissatisfied that the whole burden of taxes may be thrown on
consumption. This politician discovers in the Constitution a direct and
irresistible tendency to monarchy; that is equally sure it will end in
aristocracy. Another is puzzled to say which of these shapes it will
ultimately assume, but sees clearly it must be one or other of them;
whilst a fourth is not wanting, who with no less confidence affirms
that the Constitution is so far from having a bias towards either of
these dangers, that the weight on that side will not be sufficient to
keep it upright and firm against its opposite propensities. With
another class of adversaries to the Constitution the language is that
the legislative, executive, and judiciary departments are intermixed in
such a manner as to contradict all the ideas of regular government and
all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but a
few who lend their sanction to it. Let each one come forward with his
particular explanation, and scarce any two are exactly agreed upon the
subject. In the eyes of one the junction of the Senate with the
President in the responsible function of appointing to offices, instead
of vesting this executive power in the Executive alone, is the vicious
part of the organization. To another, the exclusion of the House of
Representatives, whose numbers alone could be a due security against
corruption and partiality in the exercise of such a power, is equally
obnoxious. With another, the admission of the President into any share
of a power which ever must be a dangerous engine in the hands of the
executive magistrate, is an unpardonable violation of the maxims of
republican jealousy. No part of the arrangement, according to some, is
more inadmissible than the trial of impeachments by the Senate, which
is alternately a member both of the legislative and executive
departments, when this power so evidently belonged to the judiciary
department. “We concur fully,” reply others, “in the objection to this
part of the plan, but we can never agree that a reference of
impeachments to the judiciary authority would be an amendment of the
error. Our principal dislike to the organization arises from the
extensive powers already lodged in that department.” Even among the
zealous patrons of a council of state the most irreconcilable variance
is discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of a
small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it as
a fundamental condition that the appointment should be made by the
President himself.
As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us further
suppose that their country should concur, both in this favorable
opinion of their merits, and in their unfavorable opinion of the
convention; and should accordingly proceed to form them into a second
convention, with full powers, and for the express purpose of revising
and remoulding the work of the first. Were the experiment to be
seriously made, though it required some effort to view it seriously
even in fiction, I leave it to be decided by the sample of opinions
just exhibited, whether, with all their enmity to their predecessors,
they would, in any one point, depart so widely from their example, as
in the discord and ferment that would mark their own deliberations; and
whether the Constitution, now before the public, would not stand as
fair a chance for immortality, as Lycurgus gave to that of Sparta, by
making its change to depend on his own return from exile and death, if
it were to be immediately adopted, and were to continue in force, not
until a BETTER, but until ANOTHER should be agreed upon by this new
assembly of lawgivers.
It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher or
lower than his fancy would have planned them. But waiving illustrations
of this sort, is it not manifest that most of the capital objections
urged against the new system lie with tenfold weight against the
existing Confederation? Is an indefinite power to raise money dangerous
in the hands of the federal government? The present Congress can make
requisitions to any amount they please, and the States are
constitutionally bound to furnish them; they can emit bills of credit
as long as they will pay for the paper; they can borrow, both abroad
and at home, as long as a shilling will be lent. Is an indefinite power
to raise troops dangerous? The Confederation gives to Congress that
power also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government in
the same body of men? Congress, a single body of men, are the sole
depositary of all the federal powers. Is it particularly dangerous to
give the keys of the treasury, and the command of the army, into the
same hands? The Confederation places them both in the hands of
Congress. Is a bill of rights essential to liberty? The Confederation
has no bill of rights. Is it an objection against the new Constitution,
that it empowers the Senate, with the concurrence of the Executive, to
make treaties which are to be the laws of the land? The existing
Congress, without any such control, can make treaties which they
themselves have declared, and most of the States have recognized, to be
the supreme law of the land. Is the importation of slaves permitted by
the new Constitution for twenty years? By the old it is permitted
forever.