Concerning the Difficulties of the Convention in Devising a Proper Form

of Government



From the Daily Advertiser.



Friday, January 11, 1788.



MADISON





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

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









THE FEDERALIST.