"The Same Subject Continued, and
the Incoherence of the Objections to the New Plan Exposed
From the New York Packet." [MADISON]
Tuesday, January 15, 1788.
To the People of the State of New York:
IT IS not a little remarkable that in every case reported by
ancient history, in which government has been established with
deliberation and consent, the task of framing it has not been
committed to an assembly of men, but has been performed by some
individual citizen of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of
Crete, as Zaleucus was of that of the Locrians. Theseus first, and
after him Draco and Solon, instituted the government of Athens.
Lycurgus was the lawgiver of Sparta. The foundation of the
original government of Rome was laid by Romulus, and the work
completed by two of his elective successors, Numa and Tullius
Hostilius. On the abolition of royalty the consular administration
was substituted by Brutus, who stepped forward with a project for
such a reform, which, he alleged, had been prepared by Tullius
Hostilius, and to which his address obtained the assent and
ratification of the senate and people. This remark is applicable to
confederate governments also. Amphictyon, we are told, was the
author of that which bore his name. The Achaean league received its
first birth from Achaeus, and its second from Aratus.
What degree of agency these reputed lawgivers might have in
their respective establishments, or how far they might be clothed
with the legitimate authority of the people, cannot in every
instance be ascertained. In some, however, the proceeding was
strictly regular. Draco appears to have been intrusted by the
people of Athens with indefinite powers to reform its government and
laws. And Solon, according to Plutarch, was in a manner compelled,
by the universal suffrage of his fellow-citizens, to take upon him
the sole and absolute power of new-modeling the constitution. The
proceedings under Lycurgus were less regular; but as far as the
advocates for a regular reform could prevail, they all turned their
eyes towards the single efforts of that celebrated patriot and sage,
instead of seeking to bring about a revolution by the intervention
of a deliberative body of citizens.
Whence could it have proceeded, that a people, jealous as the
Greeks were of their liberty, should so far abandon the rules of
caution as to place their destiny in the hands of a single citizen?
Whence could it have proceeded, that the Athenians, a people who
would not suffer an army to be commanded by fewer than ten generals,
and who required no other proof of danger to their liberties than
the illustrious merit of a fellow-citizen, should consider one
illustrious citizen as a more eligible depositary of the fortunes of
themselves and their posterity, than a select body of citizens, from
whose common deliberations more wisdom, as well as more safety,
might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a
number of counsellors exceeded the apprehension of treachery or
incapacity in a single individual. History informs us, likewise, of
the difficulties with which these celebrated reformers had to
contend, as well as the expedients which they were obliged to employ
in order to carry their reforms into effect. Solon, who seems to
have indulged a more temporizing policy, confessed that he had not
given to his
countrymen the government best suited to their happiness, but most tolerable
to their prejudices. And Lycurgus, more true to his object, was under the
necessity of mixing a portion of violence with the authority of superstition,
and of securing his final success by a voluntary renunciation, first of his
country, and then of his life. If these lessons teach us, on one hand, to
admire the improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on
the other, to admonish us of the hazards and difficulties incident
to such experiments, and of the great imprudence of unnecessarily
multiplying them.
Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated
and difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently such as will not be
ascertained until an actual trial shall have pointed them out? This
conjecture is rendered probable, not only by many considerations of
a general nature, but by the particular case of the Articles of
Confederation. It is observable that among the numerous objections
and amendments suggested by the several States, when these articles
were submitted for their ratification, not one is found which
alludes to the great and radical error which on actual trial has
discovered itself. And if we except the observations which New
Jersey was led to make, rather by her local situation, than by her
peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There
is abundant reason, nevertheless, to suppose that immaterial as
these objections were, they would have been adhered to with a very
dangerous inflexibility, in some States, had not a zeal for their
opinions and supposed interests been stifled by the more powerful
sentiment of selfpreservation. One State, we may remember,
persisted for several years in refusing her concurrence, although
the enemy remained the whole period at our gates, or rather in the
very bowels of our country. Nor was her pliancy in the end effected
by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest.
Every candid reader will make the proper reflections on these
important facts.
A patient who finds his disorder daily growing worse, and that
an efficacious remedy can no longer be delayed without extreme
danger, after coolly revolving his situation, and the characters of
different physicians, selects and calls in such of them as he judges
most capable of administering relief, and best entitled to his
confidence. The physicians attend; the case of the patient is
carefully examined; a consultation is held; they are unanimously
agreed that the symptoms are critical, but that the case, with
proper and timely relief, is so far from being desperate, that it
may be made to issue in an improvement of his constitution. They
are equally unanimous in prescribing the remedy, by which this happy
effect is to be produced. The prescription is no sooner made known,
however, than a number of persons interpose, and, without denying
the reality or danger of the disorder, assure the patient that the
prescription will be poison to his constitution, and forbid him,
under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on
some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by
the latter, rather than be hearkening to those who could neither
deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment.
She has been sensible of her malady. She has obtained a regular
and unanimous advice from men of her own deliberate choice. And she
is warned by others against following this advice under pain of the
most fatal consequences. Do the monitors deny the reality of her
danger? No. Do they deny the necessity of some speedy and powerful
remedy? No. Are they agreed, are any two of them agreed, in their
objections to the remedy proposed, or in the proper one to be
substituted? Let them speak for themselves. This one tells us that
the proposed Constitution ought to be rejected, because it is not a
confederation of the States, but a government over individuals.
Another admits that it ought to be a government over individuals to
a certain extent, but by no means to the extent proposed. A third
does not object to the government over individuals, or to the extent
proposed, but to the want of a bill of rights. A fourth concurs in
the absolute necessity of a bill of rights, but contends that it
ought to be declaratory, not of the personal rights of individuals,
but of the rights reserved to the States in their political capacity.
A fifth is of opinion that a bill of rights of any sort would be
superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate.
An objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we
are alarmed with the amazing expense, from the number of persons who
are to administer the new government. From another quarter, and
sometimes from the same quarter, on another occasion, the cry is
that the Congress will be but a shadow of a representation, and that
the government would be far less objectionable if the number and the
expense were doubled. A patriot in a State that does not import or
export, discerns insuperable objections against the power of direct
taxation. The patriotic adversary in a State of great exports and
imports, is not less dissatisfied that the whole burden of taxes may
be thrown on consumption. This politician discovers in the
Constitution a direct and irresistible tendency to monarchy; that
is equally sure it will end in aristocracy. Another is puzzled to
say which of these shapes it will ultimately assume, but sees
clearly it must be one or other of them; whilst a fourth is not
wanting, who with no less confidence affirms that the Constitution
is so far from having a bias towards either of these dangers, that
the weight on that side will not be sufficient to keep it upright
and firm against its opposite propensities. With another class of
adversaries to the Constitution the language is that the
legislative, executive, and judiciary departments are intermixed in
such a manner as to contradict all the ideas of regular government
and all the requisite precautions in favor of liberty. Whilst this
objection circulates in vague and general expressions, there are but
a few who lend their sanction to it. Let each one come forward with
his particular explanation, and scarce any two are exactly agreed
upon the subject. In the eyes of one the junction of the Senate
with the President in the responsible function of appointing to
offices, instead of vesting this executive power in the Executive
alone, is the vicious part of the organization. To another, the
exclusion of the House of Representatives, whose numbers alone could
be a due security against corruption and partiality in the exercise
of such a power, is equally obnoxious. With another, the admission
of the President into any share of a power which ever must be a
dangerous engine in the hands of the executive magistrate, is an
unpardonable violation of the maxims of republican jealousy. No
part of the arrangement, according to some, is more inadmissible
than the trial of impeachments by the Senate, which is alternately a
member both of the legislative and executive departments, when this
power so evidently belonged to the judiciary department. "We
concur fully," reply others, "in the objection to this part of the
plan, but we can never agree that a reference of impeachments to the
judiciary authority would be an
amendment of the error. Our principal dislike to the organization arises from
the extensive powers already lodged in that department." Even among the
zealous patrons of a council of state the most irreconcilable variance is
discovered concerning the mode in which it ought to be constituted.
The demand of one gentleman is, that the council should consist of
a small number to be appointed by the most numerous branch of the
legislature. Another would prefer a larger number, and considers it
as a fundamental condition that the appointment should be made by
the President himself.
As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us
further suppose that their country should concur, both in this
favorable opinion of their merits, and in their unfavorable opinion
of the convention; and should accordingly proceed to form them into
a second convention, with full powers, and for the express purpose
of revising and remoulding the work of the first. Were the
experiment to be seriously made, though it required some effort to
view it seriously even in fiction, I leave it to be decided by the
sample of opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely
from their example, as in the discord and ferment that would mark
their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on
his own return from exile and death, if it were to be immediately
adopted, and were to continue in force, not until a BETTER, but
until ANOTHER should be agreed upon by this new assembly of
lawgivers.
It is a matter both of wonder and regret, that those who raise
so many objections against the new Constitution should never call to
mind the defects of that which is to be exchanged for it. It is not
necessary that the former should be perfect; it is sufficient that
the latter is more imperfect. No man would refuse to give brass for
silver or gold, because the latter had some alloy in it. No man
would refuse to quit a shattered and
tottering habitation for a firm and commodious building, because the latter
had not a porch to it, or because some of the rooms might be a little larger
or smaller, or the ceilings a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not
manifest that most of the capital objections urged against the new
system lie with tenfold weight against the existing Confederation?
Is an indefinite power to raise money dangerous in the hands of the
federal government? The present Congress can make requisitions to
any amount they please, and the States are constitutionally bound to
furnish them; they can emit bills of credit as long as they will
pay for the paper; they can borrow, both abroad and at home, as
long as a shilling will be lent. Is an indefinite power to raise
troops dangerous? The Confederation gives to Congress that power
also; and they have already begun to make use of it. Is it
improper and unsafe to intermix the different powers of government
in the same body of men? Congress, a single body of men, are the
sole depositary of all the federal powers. Is it particularly
dangerous to give the keys of the treasury, and the command of the
army, into the same hands? The Confederation places them both in
the hands of Congress. Is a bill of rights essential to liberty?
The Confederation has no bill of rights. Is it an objection
against the new Constitution, that it empowers the Senate, with the
concurrence of the Executive, to make treaties which are to be the
laws of the land? The existing Congress, without any such control,
can make treaties which they themselves have declared, and most of
the States have recognized, to be the supreme law of the land. Is
the importation of slaves permitted by the new Constitution for
twenty years? By the old it is permitted forever.
I shall be told, that however dangerous this mixture of powers
may be in theory, it is rendered harmless by the dependence of
Congress on the State for the means of carrying them into practice;
that however large the mass of powers may be, it is in fact a
lifeless mass. Then, say I, in the first place, that the
Confederation is chargeable with the still greater folly of
declaring certain powers in the federal government to be absolutely
necessary, and at the same time rendering them absolutely nugatory;
and, in the next place, that
if the Union is to continue, and no better government be substituted, effective
powers must either be granted to, or assumed by, the existing Congress; in
either of which events, the contrast just stated will hold good. But this is
not all. Out of this lifeless mass has already grown an excrescent
power, which tends to realize all the dangers that can be
apprehended from a defective construction of the supreme government
of the Union. It is now no longer a point of speculation and hope,
that the Western territory is a mine of vast wealth to the United
States; and although it is not of such a nature as to extricate
them from their present distresses, or for some time to come, to
yield any regular supplies for the public expenses, yet must it
hereafter be able, under proper management, both to effect a gradual
discharge of the domestic debt, and to furnish, for a certain
period, liberal tributes to the federal treasury. A very large
proportion of this fund has been already surrendered by individual
States; and it may with reason be expected that the remaining
States will not persist in withholding similar proofs of their
equity and generosity. We may calculate, therefore, that a rich and
fertile country, of an area equal to the inhabited extent of the
United States, will soon become a national stock. Congress have
assumed the administration of this stock. They have begun to render
it productive. Congress have undertaken to do more: they have
proceeded to form new States, to erect temporary governments, to
appoint officers for them, and to prescribe the conditions on which
such States shall be admitted into the Confederacy. All this has
been done; and done without the least color of constitutional
authority. Yet no blame has been whispered; no alarm has been
sounded. A GREAT and INDEPENDENT fund of revenue is passing into
the hands of a SINGLE BODY of men, who can RAISE TROOPS to an
INDEFINITE NUMBER, and appropriate money to their support for an
INDEFINITE PERIOD OF TIME. And yet there are men, who have not only
been silent spectators of this prospect, but who are advocates for
the system which exhibits it; and, at the same time, urge against
the new system the objections which we have heard. Would they not
act with more consistency, in urging the establishment of the
latter, as no less necessary to guard the Union against the future
powers and resources of a body constructed
like the existing
Congress, than to save it from the dangers threatened by the present
impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the
measures which have been pursued by Congress. I am sensible they
could not have done otherwise. The public interest, the necessity
of the case, imposed upon them the task of overleaping their
constitutional limits. But is not the fact an alarming proof of the
danger resulting from a government which does not possess regular
powers commensurate to its objects? A dissolution or usurpation is
the dreadful dilemma to which it is continually exposed.
PUBLIUS