"Concerning the Difficulties of
the Convention in Devising a Proper Form of Government From the Daily
Advertiser." [MADISON]
Friday, January 11, 1788.
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 ermination 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.