its members, we have already seen that there can be no clashing or
repugnancy of authority. The laws cannot, therefore, in a legal sense,
interfere with each other; and it is far from impossible to avoid an
interference even in the policy of their different systems. An effectual
expedient for this purpose will be, mutually, to abstain from those
objects which either side may have first had recourse to. As neither can
CONTROL the other, each will have an obvious and sensible interest in
this reciprocal forbearance. And where there is an IMMEDIATE common
interest, we may safely count upon its operation. When the particular
debts of the States are done away, and their expenses come to be limited
within their natural compass, the possibility almost of interference
will vanish. A small land tax will answer the purpose of the States, and
will be their most simple and most fit resource.
Many spectres have been raised out of this power of internal taxation,
to excite the apprehensions of the people: double sets of revenue
officers, a duplication of their burdens by double taxations, and the
frightful forms of odious and oppressive poll-taxes, have been played
off with all the ingenious dexterity of political legerdemain.
As to the first point, there are two cases in which there can be no room
for double sets of officers: one, where the right of imposing the tax is
exclusively vested in the Union, which applies to the duties on imports;
the other, where the object has not fallen under any State regulation
or provision, which may be applicable to a variety of objects. In other
cases, the probability is that the United States will either wholly
abstain from the objects preoccupied for local purposes, or will make
use of the State officers and State regulations for collecting the
additional imposition. This will best answer the views of revenue,
because it will save expense in the collection, and will best avoid any
occasion of disgust to the State governments and to the people. At
all events, here is a practicable expedient for avoiding such an
inconvenience; and nothing more can be required than to show that evils
predicted to not necessarily result from the plan.
As to any argument derived from a supposed system of influence, it is
a sufficient answer to say that it ought not to be presumed; but the
supposition is susceptible of a more precise answer. If such a spirit
should infest the councils of the Union, the most certain road to the
accomplishment of its aim would be to employ the State officers as much
as possible, and to attach them to the Union by an accumulation of their
emoluments. This would serve to turn the tide of State influence into
the channels of the national government, instead of making federal
influence flow in an opposite and adverse current. But all suppositions
of this kind are invidious, and ought to be banished from the
consideration of the great question before the people. They can answer
no other end than to cast a mist over the truth.
As to the suggestion of double taxation, the answer is plain. The wants
of the Union are to be supplied in one way or another; if to be done by
the authority of the federal government, it will not be to be done by
that of the State government. The quantity of taxes to be paid by the
community must be the same in either case; with this advantage, if
the provision is to be made by the Union that the capital resource of
commercial imposts, which is the most convenient branch of revenue, can
be prudently improved to a much greater extent under federal than under
State regulation, and of course will render it less necessary to recur
to more inconvenient methods; and with this further advantage, that as
far as there may be any real difficulty in the exercise of the power of
internal taxation, it will impose a disposition to greater care in the
choice and arrangement of the means; and must naturally tend to make it
a fixed point of policy in the national administration to go as far as
may be practicable in making the luxury of the rich tributary to the
public treasury, in order to diminish the necessity of those impositions
which might create dissatisfaction in the poorer and most numerous
classes of the society. Happy it is when the interest which the
government has in the preservation of its own power, coincides with a
proper distribution of the public burdens, and tends to guard the least
wealthy part of the community from oppression!
As to poll taxes, I, without scruple, confess my disapprobation of them;
and though they have prevailed from an early period in those States(1)
which have uniformly been the most tenacious of their rights, I
should lament to see them introduced into practice under the national
government. But does it follow because there is a power to lay them that
they will actually be laid? Every State in the Union has power to impose
taxes of this kind; and yet in several of them they are unknown in
practice. Are the State governments to be stigmatized as tyrannies,
because they possess this power? If they are not, with what propriety
can the like power justify such a charge against the national
government, or even be urged as an obstacle to its adoption? As little
friendly as I am to the species of imposition, I still feel a thorough
conviction that the power of having recourse to it ought to exist in the
federal government. There are certain emergencies of nations, in which
expedients, that in the ordinary state of things ought to be forborne,
become essential to the public weal. And the government, from the
possibility of such emergencies, ought ever to have the option of making
use of them. The real scarcity of objects in this country, which may
be considered as productive sources of revenue, is a reason peculiar
to itself, for not abridging the discretion of the national councils
in this respect. There may exist certain critical and tempestuous
conjunctures of the State, in which a poll tax may become an inestimable
resource. And as I know nothing to exempt this portion of the globe
from the common calamities that have befallen other parts of it, I
acknowledge my aversion to every project that is calculated to disarm
the government of a single weapon, which in any possible contingency
might be usefully employed for the general defense and security.
(I have now gone through the examination of such of the powers proposed
to be vested in the United States, which may be considered as having an
immediate relation to the energy of the government; and have endeavored
to answer the principal objections which have been made to them. I have
passed over in silence those minor authorities, which are either too
inconsiderable to have been thought worthy of the hostilities of the
opponents of the Constitution, or of too manifest propriety to admit of
controversy. The mass of judiciary power, however, might have claimed
an investigation under this head, had it not been for the consideration
that its organization and its extent may be more advantageously
considered in connection. This has determined me to refer it to the
branch of our inquiries upon which we shall next enter.)(E1)
(I have now gone through the examination of those powers proposed to be
conferred upon the federal government which relate more peculiarly to
its energy, and to its efficiency for answering the great and primary
objects of union. There are others which, though omitted here, will, in
order to render the view of the subject more complete, be taken notice
of under the next head of our inquiries. I flatter myself the progress
already made will have sufficed to satisfy the candid and judicious
part of the community that some of the objections which have been
most strenuously urged against the Constitution, and which were
most formidable in their first appearance, are not only destitute of
substance, but if they had operated in the formation of the plan, would
have rendered it incompetent to the great ends of public happiness and
national prosperity. I equally flatter myself that a further and more
critical investigation of the system will serve to recommend it still
more to every sincere and disinterested advocate for good government
and will leave no doubt with men of this character of the propriety
and expediency of adopting it. Happy will it be for ourselves, and more
honorable for human nature, if we have wisdom and virtue enough to set
so glorious an example to mankind!)(E1)
PUBLIUS
1. The New England States.
E1. Two versions of this paragraph appear in different editions.
FEDERALIST No. 37
Concerning the Difficulties of the Convention in Devising a Proper Form
of Government.
From the Daily Advertiser. Friday, January 11, 1788.
MADISON
To the People of the State of New York:
IN REVIEWING the defects of the existing Confederation, and showing that
they cannot be supplied by a government of less energy than that before
the public, several of the most important principles of the latter
fell of course under consideration. But as the ultimate object of
these papers is to determine clearly and fully the merits of this
Constitution, and the expediency of adopting it, our plan cannot be
complete without taking a more critical and thorough survey of the work
of the convention, without examining it on all its sides, comparing
it in all its parts, and calculating its probable effects. That this
remaining task may be executed under impressions conducive to a just
and fair result, some reflections must in this place be indulged, which
candor previously suggests.
It is a misfortune, inseparable from human affairs, that public
measures are rarely investigated with that spirit of moderation which
is essential to a just estimate of their real tendency to advance
or obstruct the public good; and that this spirit is more apt to be
diminished than promoted, by those occasions which require an unusual
exercise of it. To those who have been led by experience to attend to
this consideration, it could not appear surprising, that the act of the
convention, which recommends so many important changes and innovations,
which may be viewed in so many lights and relations, and which touches
the springs of so many passions and interests, should find or excite
dispositions unfriendly, both on one side and on the other, to a fair
discussion and accurate judgment of its merits. In some, it has been too
evident from their own publications, that they have scanned the proposed
Constitution, not only with a predisposition to censure, but with a
predetermination to condemn; as the language held by others betrays an
opposite predetermination or bias, which must render their opinions also
of little moment in the question. In placing, however, these different
characters on a level, with respect to the weight of their opinions, I
wish not to insinuate that there may not be a material difference in
the purity of their intentions. It is but just to remark in favor of the
latter description, that as our situation is universally admitted to be
peculiarly critical, and to require indispensably that something should
be done for our relief, the predetermined patron of what has been
actually done may have taken his bias from the weight of these
considerations, as well as from considerations of a sinister nature. The
predetermined adversary, on the other hand, can have been governed by no
venial motive whatever. The intentions of the first may be upright, as
they may on the contrary be culpable. The views of the last cannot be
upright, and must be culpable. But the truth is, that these papers are
not addressed to persons falling under either of these characters. They
solicit the attention of those only, who add to a sincere zeal for the
happiness of their country, a temper favorable to a just estimate of the
means of promoting it.
Persons of this character will proceed to an examination of the plan
submitted by the convention, not only without a disposition to find
or to magnify faults; but will see the propriety of reflecting, that
a faultless plan was not to be expected. Nor will they barely make
allowances for the errors which may be chargeable on the fallibility to
which the convention, as a body of men, were liable; but will keep in
mind, that they themselves also are but men, and ought not to assume an
infallibility in rejudging the fallible opinions of others.
With equal readiness will it be perceived, that besides these
inducements to candor, many allowances ought to be made for the
difficulties inherent in the very nature of the undertaking referred to
the convention.
The novelty of the undertaking immediately strikes us. It has been
shown in the course of these papers, that the existing Confederation is
founded on principles which are fallacious; that we must consequently
change this first foundation, and with it the superstructure resting
upon it. It has been shown, that the other confederacies which could
be consulted as precedents have been vitiated by the same erroneous
principles, and can therefore furnish no other light than that of
beacons, which give warning of the course to be shunned, without
pointing out that which ought to be pursued. The most that the
convention could do in such a situation, was to avoid the errors
suggested by the past experience of other countries, as well as of our
own; and to provide a convenient mode of rectifying their own errors, as
future experiences may unfold them.
Among the difficulties encountered by the convention, a very important
one must have lain in combining the requisite stability and energy in
government, with the inviolable attention due to liberty and to the
republican form. Without substantially accomplishing this part of their
undertaking, they would have very imperfectly fulfilled the object of
their appointment, or the expectation of the public; yet that it could
not be easily accomplished, will be denied by no one who is unwilling to
betray his ignorance of the subject. Energy in government is essential
to that security against external and internal danger, and to that
prompt and salutary execution of the laws which enter into the very
definition of good government. Stability in government is essential to
national character and to the advantages annexed to it, as well as to
that repose and confidence in the minds of the people, which are
among the chief blessings of civil society. An irregular and mutable
legislation is not more an evil in itself than it is odious to the
people; and it may be pronounced with assurance that the people of
this country, enlightened as they are with regard to the nature, and
interested, as the great body of them are, in the effects of good
government, will never be satisfied till some remedy be applied to
the vicissitudes and uncertainties which characterize the State
administrations. On comparing, however, these valuable ingredients with
the vital principles of liberty, we must perceive at once the difficulty
of mingling them together in their due proportions. The genius of
republican liberty seems to demand on one side, not only that all power
should be derived from the people, but that those intrusted with it
should be kept in independence on the people, by a short duration of
their appointments; and that even during this short period the trust
should be placed not in a few, but a number of hands. Stability, on
the contrary, requires that the hands in which power is lodged should
continue for a length of time the same. A frequent change of men will
result from a frequent return of elections; and a frequent change of
measures from a frequent change of men: whilst energy in government
requires not only a certain duration of power, but the execution of it
by a single hand.
How far the convention may have succeeded in this part of their work,
will better appear on a more accurate view of it. From the cursory view
here taken, it must clearly appear to have been an arduous part.
Not less arduous must have been the task of marking the proper line of
partition between the authority of the general and that of the
State governments. Every man will be sensible of this difficulty, in
proportion as he has been accustomed to contemplate and discriminate
objects extensive and complicated in their nature. The faculties of
the mind itself have never yet been distinguished and defined, with
satisfactory precision, by all the efforts of the most acute and
metaphysical philosophers. Sense, perception, judgment, desire,
volition, memory, imagination, are found to be separated by such
delicate shades and minute gradations that their boundaries have
eluded the most subtle investigations, and remain a pregnant source of
ingenious disquisition and controversy. The boundaries between the great
kingdom of nature, and, still more, between the various provinces,
and lesser portions, into which they are subdivided, afford another
illustration of the same important truth. The most sagacious and
laborious naturalists have never yet succeeded in tracing with certainty
the line which separates the district of vegetable life from the
neighboring region of unorganized matter, or which marks the termination
of the former and the commencement of the animal empire. A still greater
obscurity lies in the distinctive characters by which the objects
in each of these great departments of nature have been arranged and
assorted.
When we pass from the works of nature, in which all the delineations
are perfectly accurate, and appear to be otherwise only from the
imperfection of the eye which surveys them, to the institutions of man,
in which the obscurity arises as well from the object itself as from
the organ by which it is contemplated, we must perceive the necessity of
moderating still further our expectations and hopes from the efforts
of human sagacity. Experience has instructed us that no skill in the
science of government has yet been able to discriminate and define,
with sufficient certainty, its three great provinces the legislative,
executive, and judiciary; or even the privileges and powers of the
different legislative branches. Questions daily occur in the course of
practice, which prove the obscurity which reins in these subjects, and
which puzzle the greatest adepts in political science.
The experience of ages, with the continued and combined labors of the
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.