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 dependence 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.
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.
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 dependence 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.
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.
| FEDERALIST NO. 37 Concerning the Difficulties of the Convention in Devising a Proper Form of Government - James Madison |
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