1787 Federalist 37 · Founding Made Plain

11787 Federalist No. 37

2Concerning the Difficulties of the Convention

3in Devising a Proper Form of Government

4From the Daily Advertiser.

5Friday, January 11, 1788.

6MADISON

7To the People of the State of New York:

8IN REVIEWING the defects of the existing Confederation,

9 and showing that they cannot be supplied

10 by a government of less energy

11 than that before the public,

12 several of the most important principles

13 of the latter fell of course under consideration.

14But as the ultimate object of these papers

15 is to determine clearly and fully

16 the merits of this Constitution,

17 and the expediency of adopting it,

18 our plan cannot be complete

19 without taking a more critical and thorough survey

20 of the work of the convention,

21 without examining it on all its sides,

22 comparing it in all its parts,

23 and calculating its probable effects.

24That this remaining task may be executed

25 under impressions conducive to a just and fair result,

26 some reflections must in this place be indulged,

27 which candor previously suggests.

28It is a misfortune, inseparable from human affairs,

29 that public measures are rarely investigated

30 with that spirit of moderation

31 which is essential to a just estimate

32 of their real tendency

33 to advance or obstruct the public good;

34 and that this spirit is more apt

35 to be diminished than promoted,

36 by those occasions

37 which require an unusual exercise of it.

38To those who have been led by experience

39 to attend to this consideration,

40 it could not appear surprising,

41 that the act of the convention,

42 which recommends so many important changes

43 and innovations,

44 which may be viewed in so many lights

45 and relations,

46 and which touches the springs

47 of so many passions and interests,

48 should find or excite dispositions unfriendly,

49 both on one side and on the other,

50 to a fair discussion

51 and accurate judgment of its merits.

52In some, it has been too evident

53 from their own publications,

54 that they have scanned the proposed Constitution,

55 not only with a predisposition to censure,

56 but with a predetermination to condemn;

57 as the language held by others

58 betrays an opposite predetermination or bias,

59 which must render their opinions also

60 of little moment in the question.

61In placing, however, these different characters

62 on a level, with respect to the weight

63 of their opinions,

64 I wish not to insinuate

65 that there may not be a material difference

66 in the purity of their intentions.

67It is but just to remark

68 in favor of the latter description,

69 that as our situation is universally admitted

70 to be peculiarly critical,

71 and to require indispensably

72 that something should be done for our relief,

73 the predetermined patron of what has been actually done

74 may have taken his bias

75 from the weight of these considerations,

76 as well as from considerations

77 of a sinister nature.

78The predetermined adversary, on the other hand,

79 can have been governed

80 by no venial motive whatever.

81The intentions of the first may be upright,

82 as they may on the contrary be culpable.

83The views of the last cannot be upright,

84 and must be culpable.

85But the truth is,

86 that these papers are not addressed

87 to persons falling under either

88 of these characters.

89They solicit the attention of those only,

90 who add to a sincere zeal

91 for the happiness of their country,

92 a temper favorable to a just estimate

93 of the means of promoting it.

94Persons of this character

95 will proceed to an examination

96 of the plan submitted by the convention,

97 not only without a disposition

98 to find or to magnify faults;

99 but will see the propriety of reflecting,

100 that a faultless plan was not to be expected.

101Nor will they barely make allowances

102 for the errors which may be chargeable

103 on the fallibility

104 to which the convention, as a body of men,

105 were liable;

106 but will keep in mind,

107 that they themselves also are but men,

108 and ought not to assume an infallibility

109 in rejudging the fallible opinions of others.

110With equal readiness will it be perceived,

111 that besides these inducements to candor,

112 many allowances ought to be made

113 for the difficulties inherent

114 in the very nature of the undertaking

115 referred to the convention.

116The novelty of the undertaking immediately strikes us.

117It has been shown in the course of these papers,

118 that the existing Confederation is founded

119 on principles which are fallacious;

120 that we must consequently change

121 this first foundation,

122 and with it the superstructure resting upon it.

123It has been shown,

124 that the other confederacies

125 which could be consulted as precedents

126 have been vitiated

127 by the same erroneous principles,

128 and can therefore furnish no other light

129 than that of beacons,

130 which give warning of the course to be shunned,

131 without pointing out that

132 which ought to be pursued.

133The most that the convention could do

134 in such a situation,

135 was to avoid the errors suggested

136 by the past experience of other countries,

137 as well as of our own;

138 and to provide a convenient mode

139 of rectifying their own errors,

140 as future experiences may unfold them.

141Among the difficulties encountered by the convention,

142 a very important one must have lain

143 in combining the requisite stability and energy

144 in government,

145 with the inviolable attention due to liberty

146 and to the republican form.

147Without substantially accomplishing this part

148 of their undertaking,

149 they would have very imperfectly fulfilled

150 the object of their appointment,

151 or the expectation of the public;

152 yet that it could not be easily accomplished,

153 will be denied by no one

154 who is unwilling to betray his ignorance

155 of the subject.

156Energy in government is essential

157 to that security against external and internal danger,

158 and to that prompt and salutary execution of the laws

159 which enter into the very definition

160 of good government.

161Stability in government is essential

162 to national character

163 and to the advantages annexed to it,

164 as well as to that repose and confidence

165 in the minds of the people,

166 which are among the chief blessings

167 of civil society.

168An irregular and mutable legislation

169 is not more an evil in itself

170 than it is odious to the people;

171 and it may be pronounced with assurance

172 that the people of this country,

173 enlightened as they are

174 with regard to the nature,

175 and interested, as the great body of them are,

176 in the effects of good government,

177 will never be satisfied

178 till some remedy be applied

179 to the vicissitudes and uncertainties

180 which characterize the State administrations.

181On comparing, however,

182 these valuable ingredients

183 with the vital principles of liberty,

184 we must perceive at once the difficulty

185 of mingling them together

186 in their due proportions.

187The genius of republican liberty seems to demand

188 on one side,

189 not only that all power should be derived

190 from the people,

191 but that those intrusted with it

192 should be kept in independence on the people,

193 by a short duration of their appointments;

194 and that even during this short period

195 the trust should be placed not in a few,

196 but a number of hands.

197Stability, on the contrary, requires

198 that the hands in which power is lodged

199 should continue for a length of time the same.

200A frequent change of men

201 will result from a frequent return of elections;

202 and a frequent change of measures

203 from a frequent change of men:

204 whilst energy in government requires

205 not only a certain duration of power,

206 but the execution of it by a single hand.

207How far the convention may have succeeded

208 in this part of their work,

209 will better appear on a more accurate view of it.

210From the cursory view here taken,

211 it must clearly appear

212 to have been an arduous part.

213Not less arduous must have been the task

214 of marking the proper line of partition

215 between the authority of the general

216 and that of the State governments.

217Every man will be sensible of this difficulty,

218 in proportion as he has been accustomed

219 to contemplate and discriminate objects

220 extensive and complicated in their nature.

221The faculties of the mind itself

222 have never yet been distinguished and defined,

223 with satisfactory precision,

224 by all the efforts

225 of the most acute and metaphysical philosophers.

226Sense, perception, judgment, desire, volition,

227 memory, imagination,

228 are found to be separated

229 by such delicate shades and minute gradations

230 that their boundaries have eluded

231 the most subtle investigations,

232 and remain a pregnant source

233 of ingenious disquisition and controversy.

234The boundaries between the great kingdom of nature,

235 and, still more, between the various provinces,

236 and lesser portions,

237 into which they are subdivided,

238 afford another illustration

239 of the same important truth.

240The most sagacious and laborious naturalists

241 have never yet succeeded

242 in tracing with certainty the line

243 which separates the district of vegetable life

244 from the neighboring region

245 of unorganized matter,

246 or which marks the ermination of the former

247 and the commencement of the animal empire.

248A still greater obscurity lies

249 in the distinctive characters

250 by which the objects

251 in each of these great departments of nature

252 have been arranged and assorted.

253When we pass from the works of nature,

254 in which all the delineations are perfectly accurate,

255 and appear to be otherwise only

256 from the imperfection of the eye

257 which surveys them,

258 to the institutions of man,

259 in which the obscurity arises

260 as well from the object itself

261 as from the organ by which it is contemplated,

262 we must perceive the necessity

263 of moderating still further

264 our expectations and hopes

265 from the efforts of human sagacity.

266Experience has instructed us

267 that no skill in the science of government

268 has yet been able to discriminate and define,

269 with sufficient certainty,

270 its three great provinces

271 the legislative, executive, and judiciary;

272 or even the privileges and powers

273 of the different legislative branches.

274Questions daily occur in the course of practice,

275 which prove the obscurity which reins

276 in these subjects,

277 and which puzzle the greatest adepts

278 in political science.

279The experience of ages,

280 with the continued and combined labors

281 of the most enlightened legislatures and jurists,

282 has been equally unsuccessful

283 in delineating the several objects and limits

284 of different codes of laws

285 and different tribunals of justice.

286The precise extent of the common law,

287 and the statute law, the maritime law,

288 the ecclesiastical law,

289 the law of corporations,

290 and other local laws and customs,

291 remains still to be clearly and finally established

292 in Great Britain,

293 where accuracy in such subjects

294 has been more industriously pursued

295 than in any other part of the world.

296The jurisdiction of her several courts,

297 general and local, of law, of equity,

298 of admiralty, etc.,

299 is not less a source of frequent

300 and intricate discussions,

301 sufficiently denoting the indeterminate limits

302 by which they are respectively circumscribed.

303All new laws,

304 though penned with the greatest technical skill,

305 and passed on the fullest

306 and most mature deliberation,

307 are considered as more or less obscure and equivocal,

308 until their meaning be liquidated and ascertained

309 by a series of particular discussions

310 and adjudications.

311Besides the obscurity arising

312 from the complexity of objects,

313 and the imperfection of the human faculties,

314 the medium through which the conceptions of men

315 are conveyed to each other

316 adds a fresh embarrassment.

317The use of words is to express ideas.

318Perspicuity, therefore, requires not only

319 that the ideas should be distinctly formed,

320 but that they should be expressed by words

321 distinctly and exclusively appropriate to them.

322But no language is so copious

323 as to supply words and phrases

324 for every complex idea,

325 or so correct as not to include many

326 equivocally denoting different ideas.

327Hence it must happen

328 that however accurately objects

329 may be discriminated in themselves,

330 and however accurately the discrimination

331 may be considered,

332 the definition of them may be rendered inaccurate

333 by the inaccuracy of the terms

334 in which it is delivered.

335And this unavoidable inaccuracy

336 must be greater or less,

337 according to the complexity and novelty

338 of the objects defined.

339When the Almighty himself condescends

340 to address mankind in their own language,

341 his meaning, luminous as it must be,

342 is rendered dim and doubtful

343 by the cloudy medium

344 through which it is communicated.

345Here, then, are three sources

346 of vague and incorrect definitions:

347 indistinctness of the object,

348 imperfection of the organ of conception,

349 inadequateness of the vehicle of ideas.

350Any one of these must produce

351 a certain degree of obscurity.

352The convention, in delineating the boundary

353 between the federal and State jurisdictions,

354 must have experienced the full effect of them all.

355To the difficulties already mentioned

356 may be added the interfering pretensions

357 of the larger and smaller States.

358We cannot err in supposing

359 that the former would contend

360 for a participation in the government,

361 fully proportioned

362 to their superior wealth and importance;

363 and that the latter would not be less tenacious

364 of the equality at present enjoyed by them.

365We may well suppose

366 that neither side would entirely yield to the other,

367 and consequently that the struggle

368 could be terminated only by compromise.

369It is extremely probable, also,

370 that after the ratio of representation

371 had been adjusted,

372 this very compromise must have produced

373 a fresh struggle between the same parties,

374 to give such a turn

375 to the organization of the government,

376 and to the distribution of its powers,

377 as would increase the importance of the branches,

378 in forming which they had respectively obtained

379 the greatest share of influence.

380There are features in the Constitution

381 which warrant each of these suppositions;

382 and as far as either of them is well founded,

383 it shows that the convention

384 must have been compelled

385 to sacrifice theoretical propriety

386 to the force of extraneous considerations.

387Nor could it have been the large and small States only,

388 which would marshal themselves

389 in opposition to each other

390 on various points.

391Other combinations,

392 resulting from a difference of local position

393 and policy,

394 must have created additional difficulties.

395As every State may be divided

396 into different districts,

397 and its citizens into different classes,

398 which give birth to contending interests

399 and local jealousies,

400 so the different parts of the United States

401 are distinguished from each other

402 by a variety of circumstances,

403 which produce a like effect on a larger scale.

404And although this variety of interests,

405 for reasons sufficiently explained

406 in a former paper,

407 may have a salutary influence

408 on the administration of the government

409 when formed,

410 yet every one must be sensible

411 of the contrary influence,

412 which must have been experienced

413 in the task of forming it.

414Would it be wonderful if,

415 under the pressure of all these difficulties,

416 the convention should have been forced

417 into some deviations

418 from that artificial structure

419 and regular symmetry

420 which an abstract view of the subject

421 might lead an ingenious theorist

422 to bestow on a Constitution

423 planned in his closet or in his imagination?

424The real wonder is

425 that so many difficulties should have been surmounted,

426 and surmounted with a unanimity

427 almost as unprecedented

428 as it must have been unexpected.

429It is impossible for any man of candor

430 to reflect on this circumstance

431 without partaking of the astonishment.

432It is impossible for the man of pious reflection

433 not to perceive in it a finger

434 of that Almighty hand

435 which has been so frequently and signally extended

436 to our relief

437 in the critical stages of the revolution.

438We had occasion, in a former paper,

439 to take notice of the repeated trials

440 which have been unsuccessfully made

441 in the United Netherlands

442 for reforming the baneful and notorious vices

443 of their constitution.

444The history of almost all the great councils

445 and consultations held among mankind

446 for reconciling their discordant opinions,

447 assuaging their mutual jealousies,

448 and adjusting their respective interests,

449 is a history of factions, contentions,

450 and disappointments,

451 and may be classed among the most dark

452 and degraded pictures

453 which display the infirmities and depravities

454 of the human character.

455If, in a few scattered instances,

456 a brighter aspect is presented,

457 they serve only as exceptions

458 to admonish us of the general truth;

459 and by their lustre to darken the gloom

460 of the adverse prospect

461 to which they are contrasted.

462In revolving the causes

463 from which these exceptions result,

464 and applying them

465 to the particular instances before us,

466 we are necessarily led

467 to two important conclusions.

468The first is,

469 that the convention must have enjoyed,

470 in a very singular degree,

471 an exemption from the pestilential influence

472 of party animosities

473 the disease most incident

474 to deliberative bodies,

475 and most apt to contaminate their proceedings.

476The second conclusion is

477 that all the deputations composing the convention

478 were satisfactorily accommodated by the final act,

479 or were induced to accede to it

480 by a deep conviction of the necessity

481 of sacrificing private opinions

482 and partial interests to the public good,

483 and by a despair of seeing this necessity

484 diminished by delays

485 or by new experiments.

486PUBLIUS.