The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
| II. |
Vices of the
Political system
of the U.
States. |
 | The writings of James Madison, |  |
Vices of the
Political system
of the U.
States.
April, 1787.
Observations by J. M. (A copy taken by permission by Danl.
Carroll & sent to Chs. Carroll of Carrollton.)
1. This evil has been so fully experienced both
during the war and since the peace, results so naturally
from the number and independent authority
of the States and has been so uniformly exemplified
in every similar Confederacy, that it may be considered
as not less radically and permanently inherent in than it
is fatal to the object of the present system.2. Examples of this are numerous and repetitions
may be foreseen in almost every case where any
favorite object of a State shall present a temptation,
Among these examples are the wars and treaties of
Georgia with the Indians. The unlicensed compacts between
362Virginia and Maryland, and between Pena. & N. Jersey—the troops
raised and to be kept up by Massts.3. From the number of Legislatures, the sphere of
life from which most of their members are taken,
and the circumstances under which their legislative
business is carried on, irregularities of this kind
must frequently happen. Accordingly not a year has passed without
instances of them in some one or other of the States. The
Treaty of Peace—the treaty with France—the treaty with Holland
have each been violated. [See the complaints to Congress on these
subjects.] The causes of these irregularities must necessarily produce
frequent violations of the law of nations in other respects.As yet foreign powers have not been rigorous in animadverting
on us. This moderation, however cannot be mistaken for a permanent
partiality to our faults, or a permanent security agst. those
disputes with other nations, which being among the greatest of
public calamities, it ought to be least in the power of any part of
the community to bring on the whole.4. These are alarming symptoms, and may be daily
apprehended as we are admonished by daily experi
ence. See the law of Virginia restricting foreign vessels
to certain ports—of Maryland in favor of vessels
belonging to her own citizens—of N. York in favor of the same—Paper money, instalments of debts, occlusion of Courts, making
property a legal tender, may likewise be deemed aggressions on
the rights of other States. As the Citizens of every State aggregately
taken stand more or less in the relation of Creditors or
debtors, to the Citizens of every other State, Acts of the debtor
State in favor of debtors, affect the Creditor State, in the same
manner as they do its own citizens who are relatively creditors
towards other citizens. This remark may be extended to foreign
nations. If the exclusive regulation of the value and alloy of
coin was properly delegated to the federal authority, the policy of
it equally requires a controul on the States in the cases above
mentioned. It must have been meant 1. to preserve uniformity
in the circulating medium throughout the nation. 2. to prevent
those frauds on the citizens of other States, and the subjects of
foreign powers, which might disturb the tranquillity at home, or
involve the Union in foreign contests.363
The practice of many States in restricting the commercial intercourse
with other States, and putting their productions and manufactures
on the same footing with those of foreign nations, though
not contrary to the federal articles, is certainly adverse to the
spirit of the Union, and tends to beget retaliating regulations, not
less expensive and vexatious in themselves than they are destructive
of the general harmony.5. This defect is strongly illustrated in the state
of our commercial affairs. How much has the
national dignity, interest, and revenue, suffered
from this cause? Instances of inferior moment are
the want of uniformity in the laws concerning naturalization &
literary property; of provision for national seminaries, for grants
of incorporation for national purposes, for canals and other
works of general utility, wch may at present be defeated by the
perverseness of particular States whose concurrence is necessary.6. The confederation is silent on this point and
therefore by the second article the hands of the
federal authority are tied. According to Republican
Theory, Right and power being both vested in
the majority, are held to be synonimous. According
to fact and experience a minority may in an
appeal to force, be an overmatch for the majority. 1. if the
minority happen to include all such as possess the skill and habits
of military life, & such as possess the great pecuniary resources,
one-third only may conquer the remaining two-thirds. 2. one-third
of those who participate in the choice of the rulers, may be
rendered a majority by the accession of those whose poverty
excludes them from a right of suffrage, and who for obvious
reasons will be more likely to join the standard of sedition than
that of the established Government. 3. where slavery exists the
republican Theory becomes still more fallacious.7. A sanction is essential to the idea of law, as
coercion is to that of Government. The federal
system being destitute of both, wants the great vital
principles of a Political Cons̃tution. Under the
form of such a constitution, it is in fact nothing
more than a treaty of amity of commerce and of
alliance, between independent and Sovereign States. From what
364cause could so fatal an omission have happened in the articles of
Confederation? from a mistaken confidence that the justice, the
good faith, the honor, the sound policy, of the several legislative
assemblies would render superfluous any appeal to the ordinary
motives by which the laws secure the obedience of individuals: a
confidence which does honor to the enthusiastic virtue of the
compilers, as much as the inexperience of the crisis apologizes for
their errors. The time which has since elapsed has had the
double effect, of increasing the light and tempering the warmth,
with which the arduous work may be revised. It is no longer
doubted that a unanimous and punctual obedience of 13 independent
bodies, to the acts of the federal Government ought
not to be calculated on. Even during the war, when external
danger supplied in some degree the defect of legal & coercive
sanctions, how imperfectly did the States fulfil their obligations
to the Union? In time of peace, we see already what is to be
expected. How indeed could it be otherwise? In the first place,
Every general act of the Union must necessarily bear unequally
hard on some particular member or members of it, secondly the
partiality of the members to their own interests and rights, a partiality
which will be fostered by the courtiers of popularity, will
naturally exaggerate the inequality where it exists, and even suspect
it where it has no existence, thirdly a distrust of the voluntary
compliance of each other may prevent the compliance of
any, although it should be the latent disposition of all. Here are
causes & pretexts which will never fail to render federal measures
abortive. If the laws of the States were merely recommendatory
to their citizens, or if they were to be rejudged by County
authorities, what security, what probability would exist, that they
would be carried into execution? Is the security or probability
greater in favor of the acts of Congs. which depending for their
execution on the will of the State legislatures, wch. are tho' nominally
authoritative, in fact recommendatory only?8. In some of the States the Confederation is
recognized by, and forms a part of the Constitution.
In others however it has received no other
sanction than that of the legislative authority.
From this defect two evils result: 1. Whenever a law of a State
365happens to be repugnant to an act of Congress, particularly when
the latter [former] is of posterior date to the former, [latter] it
will be at least questionable whether the latter [former] must not
prevail; and as the question must be decided by the Tribunals of
the State, they will be most likely to lean on the side of the State.2. As far as the union of the States is to be regarded as a league
of sovereign powers, and not as a political Constitution by virtue
of which they are become one sovereign power, so far it seems to
follow from the doctrine of compacts, that a breach of any of the
articles of the Confederation by any of the parties to it, absolves
the other parties from their respective Obligations, and gives them
a right if they chuse to exert it, of dissolving the Union altogether.9. In developing the evils which viciate the
political system of the U S., it is proper to include
those which are found within the States individually,
as well as those which directly affect the
States collectively, since the former class have an indirect influence
on the general malady and must not be overlooked in forming
a compleat remedy. Among the evils then of our situation
may well be ranked the multiplicity of laws from which no State
is exempt. As far as laws are necessary to mark with precision
the duties of those who are to obey them, and to take from those
who are to administer them a discretion which might be abused,
their number is the price of liberty. As far as laws exceed this
limit, they are a nuisance; a nuisance of the most pestilent
kind. Try the Codes of the several States by this test, and what a
luxuriancy of legislation do they present. The short period of independency
has filled as many pages as the century which preceded
it. Every year, almost every session, adds a new volume. This
may be the effect in part, but it can only be in part, of the situation
in which the revolution has placed us. A review of the several
Codes will shew that every necessary and useful part of the least
voluminous of them might be compressed into one tenth of the
compass, and at the same time be rendered ten fold as perspicuous.10. This evil is intimately connected with the
former yet deserves a distinct notice, as it emphatically
denotes a vicious legislation. We daily see
laws repealed or superseded, before any trial can have been made
366of their merits, and even before a knowledge of them can have
reached the remoter districts within which they were to operate.
In the regulations of trade this instability becomes a snare not
only to our citizens, but to foreigners also.11. If the multiplicity and mutability of laws
prove a want of wisdom, their injustice betrays a
defect still more alarming: more alarming not
merely because it is a greater evil in itself; but because it brings
more into question the fundamental principle of republican Government,
that the majority who rule in such governments are the
safest Guardians both of public Good and private rights. To
what causes is this evil to be ascribed?These causes lie 1. in the Representative bodies. 2. in the
people themselves.1. Representative appointments are sought from 3 motives.
1. ambition. 2. personal interest. 3. public good. Unhappily
the two first are proved by experience to be most prevalent.
Hence the candidates who feel them, particularly, the second, are
most industrious, and most successful in pursuing their object:
and forming often a majority in the legislative Councils, with
interested views, contrary to the interest and views of their constituents,
join in a perfidious sacrifice of the latter to the former.
A succeeding election it might be supposed, would displace the
offenders, and repair the mischief. But how easily are base and
selfish measures, masked by pretexts of public good and apparent
expediency? How frequently will a repetition of the same arts
and industry which succeeded in the first instance, again prevail
on the unwary to misplace their confidence?How frequently too will the honest but unenlightened representative
be the dupe of a favorite leader, veiling his selfish views
under the professions of public good, and varnishing his sophistical
arguments with the glowing colours of popular eloquence?2. A still more fatal if not more frequent cause, lies among the
people themselves. All civilized societies are divided into different
interests and factions, as they happen to be creditors or debtors
—rich or poor—husbandmen, merchants or manufacturers—
members of different religious sects—followers of different political
leaders—inhabitants of different districts—owners of different
367kinds of property &c &c. In republican Government the majority
however composed, ultimately give the law. Whenever therefore
an apparent interest or common passion unites a majority
what is to restrain them from unjust violations of the rights and
interests of the minority, or of individuals? Three motives only
1. a prudent regard to their own good as involved in the general
and permanent good of the community. This consideration
although of decisive weight in itself, is found by experience to be
too often unheeded. It is too often forgotten, by nations as well
as by individuals, that honesty is the best policy. 2dly. respect
for character. However strong this motive may be in individuals,
it is considered as very insufficient to restrain them from injustice.
In a multitude its efficacy is diminished in proportion to the
number which is to share the praise or the blame. Besides, as it
has reference to public opinion, which within a particular Society,
is the opinion of the majority, the standard is fixed by those
whose conduct is to be measured by it. The public opinion
without the Society will be little respected by the people at large
of any Country. Individuals of extended views, and of national
pride, may bring the public proceedings to this standard, but the
example will never be followed by the multitude. Is it to be
imagined that an ordinary citizen or even Assemblyman of R.
Island in estimating the policy of paper money, ever considered
or cared, in what light the measure would be viewed in France or
Holland; or even in Massts or Connect? It was a sufficient temptation
to both that it was for their interest; it was a sufficient sanction
to the latter that it was popular in the State; to the former,
that it was so in the neighbourhood. 3dly. will Religion the only
remaining motive be a sufficient restraint? It is not pretended
to be such on men individually considered. Will its effect be
greater on them considered in an aggregate view? quite the
reverse. The conduct of every popular assembly acting on oath,
the strongest of religious ties, proves that individuals join without
remorse in acts, against which their consciences would revolt if
proposed to them under the like sanction, separately in their
closets. When indeed Religion is kindled into enthusiasm, its
force like that of other passions, is increased by the sympathy of
a multitude. But enthusiasm is only a temporary state of religion,
368and while it lasts will hardly be seen with pleasure at the helm of
Government. Besides as religion in its coolest state is not infallible,
it may become a motive to oppression as well as a restraint
from injustice. Place three individuals in a situation wherein
the interest of each depends on the voice of the others; and give
to two of them an interest opposed to the rights of the third?
Will the latter be secure? The prudence of every man would
shun the danger. The rules & forms of justice suppose & guard
against it. Will two thousand in a like situation be less likely to
encroach on the rights of one thousand? The contrary is witnessed
by the notorious factions & oppressions which take place
in corporate towns limited as the opportunities are, and in little
republics when uncontrouled by apprehensions of external danger.
If an enlargement of the sphere is found to lessen the insecurity
of private rights, it is not because the impulse of a common
interest or passion is less predominant in this case with the
majority; but because a common interest or passion is less apt to
be felt and the requisite combinations less easy to be formed by a
great than by a small number. The Society becomes broken into
a greater variety of interests, of pursuits of passions, which check
each other, whilst those who may feel a common sentiment have
less opportunity of communication and concert. It may be inferred
that the inconveniences of popular States contrary to the
prevailing Theory, are in proportion not to the extent, but to the
narrowness of their limits.The great desideratum in Government is such a modification
of the sovereignty as will render it sufficiently neutral between
the different interests and factions, to controul one part of the
society from invading the rights of another, and at the same
time sufficiently controuled itself, from setting up an interest
adverse to that of the whole Society. In absolute Monarchies
the prince is sufficiently, neutral towards his subjects, but frequently
sacrifices their happiness to his ambition or his avarice.
In small Republics, the sovereign will is sufficiently controuled
from such a sacrifice of the entire Society, but is not sufficiently
neutral towards the parts composing it. As a limited monarchy
tempers the evils of an absolute one; so an extensive Republic
meliorates the administration of a small Republic.369
An auxiliary desideratum for the melioration of the Republican
form is such a process of elections as will most certainly
extract from the mass of the society the purest and noblest
characters which it contains; such as will at once feel most
strongly the proper motives to pursue the end of their appointment,
and be most capable to devise the proper means of attaining
it.
1. Failure of
the States to
comply with
the Constitutional
requisitions.
2. Encroachments
by the
States on the
federal authority.
3. Violations
of the law of
nations and of
treaties.
4. Trespasses
of the States
on the rights
of each other.
5. Want of
concert in matters
where
common interest
requires it.
6. Want of
Guaranty to
the States of
their Constitutions
& laws
against internal
violence.
7. Want of
sanction to the
laws, and of
coercion in the
Government of
the Confederacy.
8. want of
ratification by
the people of
the articles of
Confederation.
9. Multiplicity
of laws in
the several
States.
10. mutability
of the laws
of the States.
11. Injustice
of the laws of
the States.
| The writings of James Madison, | |