As to the interference of the revenue laws of the Union, and of

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.

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