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 descriptions, 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 experience 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 dependence 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
form 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 reigns 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 legislators 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
quality 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.
Signed "PUBLIUS"
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