James Madison published on 22 November 1787 this most famous essay
for the Federalist Papers as Number 10 under the pseudonym “Publius.”
Alexander Hamilton also had been using “Publius” when he wrote #1
“Introduction to the Federalist Papers” and #6-9.
John Jay wrote #2-5 using Publius.
After Hamilton wrote No. 9 “The Union as a Safeguard
Against Domestic Faction and Insurrection,”
Madison wrote No. 10 on the same subject.
Among the numerous advantages promised
by a well constructed union, none deserves
to be more accurately developed than its tendency
to break and control the violence of faction.
The friend of popular governments, never finds himself
so much alarmed for their character and fate, as when
he contemplates their propensity to this dangerous vice.
He will not fail therefore to set a due value on
any plan which, without violating the principles
to which he is attached, provides a proper cure for it.
The instability, injustice and confusion introduced
into the public councils, have in truth been the mortal
diseases under which popular governments have
everywhere perished; as they continue to be the
favorite and fruitful topics from which the adversaries
to liberty derive their most specious declamations.
The valuable improvements made by the American
constitutions on the popular models,
both ancient and modern, cannot certainly be too much
admired; but it would be an unwarrantable partiality,
to contend that they have as effectually obviated the
danger on this side as was wished and expected.
Complaints are everywhere heard from our most
considerate and virtuous citizens, equally the friends of
public and private faith, and of public and personal liberty;
that our governments are too unstable; that the public good
is disregarded in the conflicts of rival parties; and that
measures are too often decided, not according to the rules
of justice, and the rights of the minor party; but by the
superior force of an interested and over-bearing majority.
However anxiously we may wish that these complaints
had no foundation, the evidence of known facts will not
permit us to deny that they are in some degree true.
It will be found indeed on a candid review of our situation
that some of the distresses under which we labor have been
erroneously charged on the operation of our governments;
but it will be found at the same time, that other causes will
not alone account for many of our heaviest misfortunes;
and particularly, for that prevailing and increasing distrust
of public engagements and alarm for private rights, which
are echoed from one end of the continent to the other.
These must be chiefly, if not wholly, effects of the
unsteadiness and injustice, with which a factious spirit
has tainted our public administration.
By a faction I understand a number of citizens, whether
amounting to a majority or minority of the whole, who are
united and actuated by some common impulse of passion,
or of interest, adverse to the rights of other citizens, or to
the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction:
The one, by removing its causes;
the other, by controlling its effects.
There are again two methods of
removing the causes of faction:
The one by destroying the liberty which is essential to its
existence; the other, by giving to every citizen the same
opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy,
that it is worse than the disease.
Liberty is to faction, what air is to fire,
an aliment without which it instantly expires.
But it could not be a less folly to abolish liberty, which is
essential to political life, because it nourishes faction, than it
would be to wish the annihilation of air, which is essential to
animal life because it imparts to fire its destructive agency.
The second expedient is as impracticable,
as the first would be unwise.
As long as the reason of man continues fallible, and he is
at liberty to exercise it, different opinions will be formed.
As long as the connection subsists between his reason and
his self-love, his opinions and his passions will have a
reciprocal influence on each other; and the former will
be objects to which the latter will attach themselves.
The diversity in the faculties of men from which
the rights of property originate, is not less an
insuperable obstacle to a uniformity of interests.
The protection of these faculties
is the first object of government.
From the protection of different and unequal faculties
of acquiring property, the possession of different
degrees and kinds of property immediately results:
And from the influence of these on the sentiments
and views of the respective proprietors, ensues a
division of the society into different interests and parties.
The latent causes of faction are thus sown
in the nature of man; and we see them everywhere
brought into different degrees of activity, according
to the different circumstances of civil society.
A zeal for different opinions concerning religion, concerning
government, and many other points, as well of speculation
as of practice; an attachment to different leaders
ambitiously contending for pre-eminence and power;
or to persons of other descriptions whose fortunes have
been interesting to the human passions, have in turn divided
mankind into parties, inflamed them with mutual animosity,
and rendered them much more disposed to vex and oppress
each other, than to co-operate for their common good.
So strong is this propensity of mankind to fall into
mutual animosities, that where no substantial occasion
presents itself, the most frivolous and fanciful distinctions
have been sufficient to kindle their unfriendly passions
and excite their most violent conflicts.
But the most common and durable source of factions
has been the various and unequal distribution of property.
Those who hold and those who are without property
have ever formed distinct interests in society.
Those who are creditors and those who are debtors
fall under a like discrimination.
A landed interest, a manufacturing interest,
a mercantile interest, a monied interest,
with many lesser interests, grow up of necessity
in civilized nations, and divide them into different classes,
actuated by different sentiments and views.
The regulation of these various and interfering interests
forms the principal task of modern legislation,
and involves the spirit of party and faction in the
necessary and ordinary operations of government.
No man is allowed to be a judge in his own cause;
because his interest would certainly bias his judgment,
and, not improbably, corrupt his integrity.
With equal, nay with greater reason, a body of men,
are unfit to be both judges and parties, at the same time;
yet, what are many of the most important acts of legislation,
but so many judicial determinations, not indeed concerning
the rights of single persons, but concerning the rights
of large bodies of citizens; and what are the different
classes of legislators, but advocates and parties
to the causes which they determine?
Is a law proposed concerning private debts?
It is a question to which the creditors are parties
on one side and the debtors on the other.
Justice ought to hold the balance between them.
Yet the parties are and must be themselves the judges;
and the most numerous party, or, in other words,
the most powerful faction must be expected to prevail.
Shall domestic manufactures be encouraged, and in
what degree, by restrictions on foreign manufactures?
are questions which would be differently decided by the
landed and the manufacturing classes, and probably by
neither with a sole regard to justice and the public good.
The apportionment of taxes on the various descriptions of
property, is an act which seems to require the most exact
impartiality, yet there is perhaps no legislative act in
which greater opportunity and temptation are given to
a predominant party to trample on the rules of justice.
Every shilling with which they over-burden the inferior
number is a shilling saved to their own pockets.
It is in vain to say, that enlightened statesmen
will be able to adjust these clashing interests
and render them all subservient to the public good.
Enlightened statesmen will not always be at the helm:
Nor in many cases can such an adjustment be made at all,
without taking into view indirect and remote considerations,
which will rarely prevail over the immediate
interest which one party may find in disregarding
the rights of another or the good of the whole.
The inference to which we are brought is that the
causes of faction cannot be removed; and that relief
is only to be sought in the means of controlling its effects.
If a faction consists of less than a majority, relief is
supplied by the republican principle, which enables the
majority to defeat its sinister views by regular vote:
It may clog the administration; it may convulse the society;
but it will be unable to execute and mask its violence
under the forms of the constitution.
When a majority is included in a faction, the form
of popular government on the other hand enables
it to sacrifice to its ruling passion or interest,
both the public good and the rights of other citizens.
To secure the public good and private rights against the
danger of such a faction, and at the same time to preserve
the spirit and the form of popular government is then
the great object to which our enquiries are directed.
Let me add that it is the great desideratum, by which
alone this form of government can be rescued from the
opprobrium under which it has so long labored and be
recommended to the esteem and adoption of mankind.
By what means is this object attainable?
Evidently by one of two only.
Either the existence of the same passion or interest in a
majority at the same time must be prevented; or the
majority, having such co-existent passion or interest, must
be rendered by their number and local situation unable
to concert and carry into effect schemes of oppression.
If the impulse and the opportunity be suffered to coincide,
we well know that neither moral nor religious motives
can be relied on as an adequate control.
They are not found to be such on the injustice
and violence of individuals, and lose their efficacy
in proportion to the number combined together; that is,
in proportion as their efficacy becomes needful.
From this view of the subject it may be concluded
that a pure democracy, by which I mean a society,
consisting of a small number of citizens, who
assemble and administer the government in person,
can admit of no cure for the mischiefs of faction.
A common passion or interest will in almost every case
be felt by a majority of the whole; a communication
and concert results from the form of government itself;
and there is nothing to check the inducements to
sacrifice the weaker party or an obnoxious individual.
Hence it is, that such democracies have ever been
spectacles of turbulence and contention; have ever
been found incompatible with personal security or
the rights of property; and have in general been as short
in their lives, as they have been violent in their deaths.
Theoretical politicians, who have patronized this
species of government, have erroneously supposed
that by reducing mankind to a perfect equality in
their political rights, they would, at the same time,
be perfectly equalized, and assimilated in their
possessions, their opinions, and their passions.
A republic, by which I mean a government in which the
scheme of representation takes place, opens a different
prospect and promises the cure for which we are seeking.
Let us examine the points in which it varies from pure
democracy, and we shall comprehend both the nature of the
cure and the efficacy which it must derive from the union.
The two great points of difference between a democracy
and a republic are first, the delegation of the government
in the latter to a small number of citizens elected by the
rest; secondly, the greater number of citizens and greater
sphere of country over which the latter may be extended.
The effect of the first difference is, on the one hand,
to refine and enlarge the public views by passing them
through the medium of a chosen body of citizens, whose
wisdom may best discern the true interest of their country
and whose patriotism and love of justice will be least likely
to sacrifice it to temporary or partial considerations.
Under such a regulation it may well happen that the public
voice pronounced by the representatives of the people will
be more consonant to the public good than if pronounced
by the people themselves convened for the purpose.
On the other hand, the effect may be inverted.
Men of factious tempers, of local prejudices,
or of sinister designs, may by intrigue, by corruption,
or by other means, first obtain the suffrages
and then betray the interests of the people.
The question resulting is whether small or extensive
republics are most favorable to the election of proper
guardians of the public weal; and it is clearly decided
in favor of the latter by two obvious considerations.
In the first place it is to be remarked, that however
small the republic may be, the representatives must
be raised to a certain number in order to guard against
the cabals of a few; and that however large it may be,
they must be limited to a certain number in order
to guard against the confusion of a multitude.
Hence the number of representatives in the two cases
not being in proportion to that of the constituents, and being
proportionally greatest in the small republic, it follows, that
if the proportion of fit characters be not less in the large
than in the small republic, the former will present a greater
option and consequently a greater probability of a fit choice.
In the next place, as each representative will be chosen
by a greater number of citizens in the large than in the
small republic, it will be more difficult for unworthy
candidates to practice with success the vicious arts
by which elections are too often carried; and the
suffrages of the people being more free, will be more likely
to center on men who possess the most attractive merit
and the most diffusive and established characters.
It must be confessed that in this, as in most other cases,
there is a mean on both sides of which
inconveniencies will be found to lie.
By enlarging too much the number of electors
you render the representative too little acquainted
with all their local circumstances and lesser interests;
as by reducing it too much, you render him unduly
attached to these and too little fit to comprehend
and pursue great and national objects.
The federal constitution forms a happy combination in this
respect; the great and aggregate interests being referred to
the national, the local and particular to the state legislatures.
The other point of difference is the greater number
of citizens and extent of territory which may be
brought within the compass of republican, than of
democratic government; and it is this circumstance
principally which renders factious combinations
less to be dreaded in the former than in the latter.
The smaller the society, the fewer probably will be the
distinct parties and interests composing it; the fewer the
distinct parties and interests, the more frequently will a
majority be found of the same party; and the smaller the
number of individuals composing a majority, and the smaller
the compass within which they are placed, the more easily
will they concert and execute their plans of oppression.
Extend the sphere, and you take in a greater variety of
parties and interests; you make it less probable that a
majority of the whole will have a common motive to invade
the rights of other citizens; or if such a common motive
exists, it will be more difficult for all who feel it to discover
their own strength and to act in unison with each other.
Besides other impediments, it may be remarked, that where
there is a consciousness of unjust or dishonorable purposes,
communication is always checked by distrust in proportion
to the number whose concurrence is necessary.
Hence it clearly appears, that the same advantage, which
a republic has over a democracy in controlling the effects
of faction, is enjoyed by a large over a small republic—
is enjoyed by the union over the states composing it.
Does this advantage consist in the substitution of
representatives, whose enlightened views and
virtuous sentiments render them superior to local
prejudices and to schemes of injustice?
It will not be denied that the representation of the union
will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a
greater variety of parties, against the event of any one
party being able to outnumber and oppress the rest?
In an equal degree does the increased variety of parties,
comprised within the union increase this security.
Does it, in fine, consist in the greater obstacles
opposed to the concert and accomplishment of the
secret wishes of an unjust and interested majority?
Here, again, the extent of the union gives it
the most palpable advantage.
The influence of factious leaders may kindle a flame
within their particular states, but will be unable to spread
a general conflagration through the other states:
A religious sect, may degenerate into a political faction
in a part of the confederacy; but the variety of sects
dispersed over the entire face of it must secure the
national councils against any danger from that source:
A rage for paper money, for an abolition of debts, for an
equal division of property, or for any other improper or
wicked project, will be less apt to pervade the whole body
of the union, than a particular member of it; in the same
proportion as such a malady is more likely to taint a
particular county or district than an entire state.
In the extent and proper structure of the union,
therefore, we behold a republican remedy for the
diseases most incident to republican government.
And according to the degree of pleasure and pride, we
feel in being republicans, ought to be our zeal in cherishing
the spirit and supporting the character of federalists.1
Madison on November 30 published No. 14 “Objections to the
Proposed Constitution from Extent of Territory Answered.”
This is the whole document:
We have seen the necessity of the union as our
bulwark against foreign danger, as the conservator
of peace among ourselves, as the guardian of our
commerce and other common interests, as the only
substitute for those military establishments which have
subverted the liberties of the old world, and as the proper
antidote for the diseases of faction, which have proved
fatal to other popular governments, and of which
alarming symptoms have been betrayed by our own.
All that remains within this branch of our enquiries is
to take notice of an objection, that may be drawn from
the great extent of country which the union embraces.
A few observations on this subject will be the more proper,
as it is perceived that the adversaries of the new
constitution are availing themselves of a prevailing
prejudice with regard to the practicable sphere
of republican administration in order to supply
by imaginary difficulties the want of those solid
objections, which they endeavor in vain to find.
The error which limits republican government to a narrow
district has been unfolded and refuted in preceding papers.
I remark here only that it seems to owe
its rise and prevalence chiefly to the
confounding of a republic with a democracy:
And applying to the former reasonings
drawn from the nature of the latter.
The true distinction between these forms
was also adverted to on a former occasion.
It is that in a democracy the people meet and exercise
the government in person; in a republic they assemble
and administer it by their representatives and agents.
A democracy consequently must be confined to a small spot.
A republic may be extended over a large region.
To this accidental source of the error may be added,
the artifice of some celebrated authors,
whose writings have had a great share in forming
the modern standard of political opinions.
Being subjects either of an absolute, or limited monarchy,
they have endeavored to heighten the advantages or
palliate the evils of those forms; by placing in comparison
with them the vices and defects of the republican
and by citing as specimens of the latter, the turbulent
democracies of ancient Greece and modern Italy.
Under the confusion of names it has been an easy task
to transfer to a republic observations applicable to a
democracy only, and among others the observation that
it can never be established but among a small number
of people living within a small compass of territory.
Such a fallacy may have been the less perceived,
as most of the popular governments of antiquity were
of the democratic species; and even in modern Europe,
to which we owe the great principle of representation,
no example is seen of a government wholly popular
and founded at the same time wholly on that principle.
If Europe has the merit of discovering this great
mechanical power in government by the simple
agency of which, the will of the largest political body
may be concentered, and its force directed to any object,
which the public good requires:
America can claim the merit of making the discovery
the basis of unmixed and extensive republics.
It is only to be lamented, that any of her citizens
should wish to deprive her of the additional merit of
displaying its full efficacy in the establishment of the
comprehensive system now under her consideration.
As the natural limit of a democracy is that distance from
the central point, which will just permit the most remote
citizens to assemble as often as their public functions
demand; and will include no greater number than can join
in those functions; so the natural limit of a republic is
that distance from the center, which will barely allow
the representatives of the people to meet as often as
may be necessary for the administration of public affairs.
Can it be said that the limits of the United States
exceed this distance?
It will not be said by those who recollect that the Atlantic
coast is the longest side of the union; that during the term
of thirteen years, the representatives of the states have
been almost continually assembled; and that the members
from the most distant states are not chargeable with
greater intermissions of attendance, than those from
the states in the neighborhood of Congress.
That we may form a juster estimate
with regard to this interesting subject,
let us resort to the actual dimensions of the union.
The limits as fixed by the treaty of peace are on the East
the Atlantic, on the South the latitude of thirty-one degrees,
on the West the Mississippi, and on the North an irregular
line running in some instances beyond the forty-fifth degree,
in others falling as low as the forty-second.
The Southern shore of lake Erie lies below that latitude.
Computing the distance between the thirty-first and
forty-fifth degrees, it amounts to nine hundred and seventy-
three common miles; computing it from thirty-one to forty-two
degrees to seven hundred, sixty-four miles and a half.
Taking the mean for the distance, the amount will be
eight-hundred sixty-eight miles and three-fourths.
The mean distance from the Atlantic to the Mississippi,
does not probably exceed seven-hundred and fifty miles.
On a comparison of this extent with that of several
countries in Europe, the practicability of rendering our
system commensurate to it, appears to be demonstrable.
It is not a great deal larger than Germany, where a diet,
representing the whole empire is continually assembled;
or than Poland before the late dismemberment,
where another national diet was
the depositary of the supreme power.
Passing by France and Spain, we find that in Great Britain,
inferior as it may be in size, the representatives of the
Northern extremity of the island, have as far to travel
to the national council, as will be required of those
of the most remote parts of the union.
Favorable as this view of the subject may be,
some observations remain which will place it
in a light still more satisfactory.
In the first place it is to be remembered that
the general government is not to be charged with
the whole power of making and administering laws.
Its jurisdiction is limited to certain enumerated objects,
which concern all the members of the republic, but which
are not to be attained by the separate provisions of any.
The subordinate governments, which can extend their
care to all those other objects, which can be separately
provided for, will retain their due authority and activity.
Were it proposed by the plan of the convention to
abolish the governments of the particular states,
its adversaries would have some ground for their objection,
though it would not be difficult to show that
if they were abolished, the general government would
be compelled by the principle of self-preservation
to reinstate them in their proper jurisdiction.
A second observation to be made is that the immediate
object of the federal constitution is to secure the union of the
Thirteen primitive States, which we know to be practicable;
and to add to them such other states, as may arise
in their own bosoms or in their neighborhoods,
which we cannot doubt to be equally practicable.
The arrangements that may be necessary for those angles
and fractions of our territory, which lie on our north-western
frontier, must be left to those whom further discoveries
and experience will render more equal to the task.
Let it be remarked in the third place that
the intercourse throughout the union will be
daily facilitated by new improvements.
Roads will everywhere be shortened and kept in
better order; accommodations for travelers will be
multiplied and meliorated; an interior navigation
on our eastern side will be opened throughout or nearly
throughout the whole extent of the Thirteen States.
The communication between the Western and
Atlantic districts and between different parts of each
will be rendered more and more easy by those
numerous canals with which the beneficence of nature
has intersected our country, and which art finds it
so little difficult to connect and complete.
A fourth and still more important consideration is
that as almost every state will on one side or other
be a frontier and will thus find in a regard to its safety
an inducement to make some sacrifices for the sake of
the general protection; so the states which lie at the
greatest distance from the heart of the union, and which
of course may partake least of the ordinary circulation of its
benefits, will be at the same time immediately contiguous
to foreign nations and will consequently stand on particular
occasions in greatest need of its strength and resources.
It may be inconvenient for Georgia or the states forming
our Western or North-Eastern borders, to send their
representatives to the seat of government,
but they would find it more so to struggle alone against
an invading enemy, or even to support alone the whole
expense of those precautions, which may be dictated
by the neighborhood of continual danger.
If they should derive less benefit therefore from the union
in some respects than the less distant states, they will
derive greater benefit from it in other respects, and
thus the proper equilibrium will be maintained throughout.
I submit to you, my fellow citizens, these considerations
in full confidence that the good sense which has so often
marked your decisions will allow them their due weight
and effect; and that you will never suffer difficulties,
however formidable in appearance or however
fashionable the error on which they may be founded,
to drive you into the gloomy and perilous scenes into
which the advocates for disunion would conduct you.
Hearken not to the unnatural voice which tells you that the
people of America, knit together as they are by so many
cords of affection, can no longer live together as members
of the same family; can no longer continue the mutual
guardians of their mutual happiness; can no longer be fellow
citizens of one great respectable and flourishing empire.
Hearken not to the voice which petulantly tells you
that the form of government recommended
for your adoption is a novelty in the political world;
that it has never yet had a place
in the theories of the wildest projectors;
that it rashly attempts what it is impossible to accomplish.
No, my countrymen, shut your ears
against this unhallowed language.
Shut your hearts against the poison which it conveys;
the kindred blood which flows in the veins of American
citizens, the mingled blood which they have shed in defense
of their sacred rights, consecrate their union, and excite
horror at the idea of their becoming aliens, rivals, enemies.
And if novelties are to be shunned, believe me the most
alarming of all novelties, the most wild of all projects, the
most rash of all attempts, is that of rending us in pieces, in
order to preserve our liberties and promote our happiness.
But why is the experiment of an extended republic to be
rejected merely because it may comprise what is new?
Is it not the glory of the people of America, that while they
have paid a decent regard to the opinions of former times
and other nations, they have not suffered a blind veneration
for antiquity, for custom, or for names, to overrule the
suggestions of their own good sense, the knowledge of their
own situation, and the lessons of their own experience?
To this manly spirit, posterity will be indebted for the
possession, and the world for the example of the numerous
innovations displayed on the American theatre,
in favor of private rights and public happiness.
Had no important step been taken by the leaders of the
revolution for which a precedent could not be discovered,
no government established of which an exact model did not
present itself, the people of the United States might at this
moment have been numbered among the melancholy
victims of misguided councils, must at best have been
laboring under the weight of some of those forms
which have crushed the liberties of the rest of mankind.
Happily for America, happily we trust for the whole
human race, they pursued a new and more noble course.
They accomplished a revolution which has
no parallel in the annals of human society:
They reared the fabrics of governments
which have no model on the face of the globe.
They formed the design of a great confederacy, which it is
incumbent on their successors to improve and perpetuate.
If their works betray imperfections,
we wonder at the fewness of them.
If they erred most in the structure of the union,
this was the work most difficult to be executed;
this is the work which has been new modelled
by the act of your convention, and it is that act
on which you are now to deliberate and to decide.2
Madison published #37 “Concerning the Difficulties of the Convention
in Devising a Proper Form of Government” on 11 January 1788.
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 completed 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 judging 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 entrusted
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 in 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 electors and a frequent change of measures,
from a frequent change of men; while 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 kingdoms 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 farther 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 reigns in these subjects and
which puzzles the greatest adepts in political science.
The experience of ages with the continued and
combined labors of the most enlightened legislators
and jurists have 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, the statute law,
the maritime law, the ecclesiastical law, the law of
corporations and other local laws and customs, remain
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, &c. 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 appropriated 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 everyone 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 degrading 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 instance 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 diseases most incident to deliberative bodies
and most apt to contaminate their proceedings.
The second conclusion is that all the deputations composing
the convention were either 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.3
Madison published #39 “The Conformity of the Plan
to Republican Principles” on January 16.
The last paper having concluded the observations which
were meant to introduce a candid survey of the plan of
government reported by the convention, we now
proceed to the execution of that part of our undertaking.
The first question that offers itself is, whether the general
form and aspect of the government be strictly republican?
It is evident that no other form would be reconcilable
with the genius of the people of America;
with the fundamental principles of the revolution;
or with that honorable determination, which animates
every votary of freedom to rest all our political experiments
on the capacity of mankind for self-government.
If the plan of the convention therefore be found
to depart from the republican character, its advocates
must abandon it as no longer defensible.
What then are the distinctive characters
of the republican form?
Were an answer to this question to be sought,
not by recurring to principles, but in the application of the
term by political writers, to the constitutions of different
states, no satisfactory one would ever be found.
Holland, in which no particle of the supreme authority
is derived from the people, has passed almost
universally under the denomination of a republic.
The same title has been bestowed on Venice,
where absolute power over the great body of the people
is exercised in the most absolute manner
by a small body of hereditary nobles.
Poland, which is a mixture of aristocracy
and of monarchy in their worst forms,
has been dignified with the same appellation.
The government of England, which has one republican
branch only, combined with a hereditary aristocracy
and monarchy, has with equal impropriety been
frequently placed on the list of republics.
These examples, which are nearly as dissimilar to each
other as to a genuine republic, show the extreme inaccuracy
with which the term has been used in political disquisitions.
If we resort for a criterion to the different principles on
which different forms of government are established,
we may define a republic to be, or at least may bestow that
name on a government which derives all its powers directly
or indirectly from the great body of the people; and is
administered by persons holding their offices during
pleasure for a limited period or during good behavior.
It is essential to such a government, that it be derived
from the great body of the society, not from an
inconsiderable proportion, or a favored class of it;
otherwise a handful of tyrannical nobles, exercising
their oppressions by a delegation of their powers,
might aspire to the rank of republicans, and claim
for their government the honorable title of republic.
It is sufficient for such a government, that the persons
administering it be appointed, either directly or indirectly,
by the people; and that they hold their appointments
by either of the tenures just specified;
otherwise every government in the United States,
as well as every other popular government that has been
or can be well organized or well executed,
would be degraded from the republican character.
According to the constitution of every state in the union,
some or other of the officers of government
are appointed indirectly only by the people.
According to most of them
the chief magistrate himself is so appointed.
And according to one, this mode of appointment is extended
to one of the co-ordinate branches of the legislature.
According to all the constitutions also, the tenure of the
highest offices is extended to a definite period, and
in many instances, both within the legislative and
executive departments, to a period of years.
According to the provisions of most of the constitutions,
again, as well as according to the most respectable
and received opinions on the subject, the members
of the judiciary department are to retain their offices
by the firm tenure of good behavior.
On comparing the constitution planned by the convention,
with the standard here fixed, we perceive at once
that it is in the most rigid sense conformable to it.
The house of representatives, like that of one branch
at least of all the state legislatures,
is elected immediately by the great body of the people.
The senate, like the present congress
and the senate of Maryland,
derives its appointment indirectly from the people.
The president is indirectly derived from the choice of the
people, according to the example in most of the states.
Even the judges with all other officers of the union
will as in the several states be the choice,
though a remote choice, of the people themselves.
The duration of the appointments is
equally conformable to the republican standard
and to the model of the state constitutions.
The house of representatives is periodically elective
as in all the states; and for the period of two years
as in the state of South Carolina.
The senate is elective for the period of six years;
which is but one year more than the period
of the senate of Maryland and but two more than
that of the senates of New York and Virginia.
The president is to continue in office for the period of four
years; as in New York and Delaware, the chief magistrate is
elected for three years and in South Carolina for two years.
In the other states the election is annual.
In several of the states however, no explicit provision
is made for the impeachment of the chief magistrate.
And in Delaware and Virginia
he is not impeachable till out of office.
The president of the United States is impeachable
at any time during his continuance in office.
The tenure by which the judges are to hold their places,
is, as it unquestionably ought to be, that of good behavior.
The tenure of the ministerial offices generally will be
a subject of legal regulation, conformably to the reason
of the case and the example of the state constitutions.
Could any further proof be required of the republican
complexion of this system, the most decisive one might
be found in its absolute prohibition of titles of nobility,
both under the federal and the state governments,
and in its express guarantee of the
republican form to each of the latter.
But it was not sufficient, say the adversaries
of the proposed constitution,
for the convention to adhere to the republican form.
They ought with equal care to have preserved
the federal form, which regards the union as a
confederacy of sovereign states; instead of which,
they have framed a national government,
which regards the union as a consolidation of the states.
And it is asked by what authority this bold
and radical innovation was undertaken.
The handle which has been made of this objection
requires that it should be examined with some precision.
Without enquiring into the accuracy of the
distinction on which the objection is founded,
it will be necessary to a just estimate of its force:
first to ascertain the real character
of the government in question;
secondly, to enquire how far the convention
were authorized to propose such a government;
and thirdly, how far the duty they owed to their country
could supply any defect of regular authority.
First. In order to ascertain the real character of the
government it may be considered in relation to the
foundation on which it is to be established:
to the sources from which its ordinary powers are
to be drawn, to the operation of those powers,
to the extent of them, and to the authority by which
future changes in the government are to be introduced.
On examining the first relation, it appears on one hand
that the constitution is to be founded on the assent
and ratification of the people of America,
given by deputies elected for the special purpose;
but on the other that this assent and ratification
is to be given by the people,
not as individuals composing one entire nation;
but as composing the distinct and independent states
to which they respectively belong.
It is to be the assent and ratification of the several states
derived from the supreme authority in each state,
the authority of the people themselves.
The act therefore establishing the constitution
will not be a national but a federal act.
That it will be a federal and not a national act,
as these terms are understood by the objectors,
the act of the people as forming so many
independent states, not as forming one aggregate nation
is obvious from this single consideration, that it is to result
neither from the decision of a majority of the people
of the union, nor from that of a majority of the states.
It must result from the unanimous assent of the several
states that are parties to it, differing no other wise from
their ordinary assent than in its being expressed, not by the
legislative authority but by that of the people themselves.
Were the people regarded in this transaction as forming
one nation, the will of the majority of the whole people
of the United States would bind the minority;
in the same manner as the majority in each state
must bind the minority; and the will of the majority must be
determined either by a comparison of the individual votes;
or by considering the will of the majority of the states,
as evidence of the will of a majority
of the people of the United States.
Neither of these rules has been adopted.
Each state in ratifying the constitution is considered
as a sovereign body independent of all others,
and only to be bound by its own voluntary act.
In this relation then the new constitution will,
if established, be a federal and not a national constitution.
The next relation is to the sources from which the
ordinary powers of government are to be derived.
The house of representatives will derive its powers from
the people of America, and the people will be represented
in the same proportion, and on the same principle,
as they are in the legislature of a particular state.
So far the government is national not federal.
The senate on the other hand will derive its powers
from the states, as political and co-equal societies;
and these will be represented on the principle of equality
in the senate, as they now are in the existing congress.
So far the government is federal, not national.
The executive power will be derived from
a very compound source.
The immediate election of the president is to be
made by the states in their political characters.
The votes allotted to them, are in a compound ratio, which
considers them partly as distinct and co-equal societies;
partly as unequal members of the same society.
The eventual election, again is to be made by that
branch of the legislature which consists of the national
representatives; but in this particular act, they are to be
thrown into the form of individual delegations
from so many distinct and co-equal bodies politic.
From this aspect of the government, it appears to be
of a mixed character, presenting at least
as many federal as national features.
The difference between a federal and national
government, as it relates to the operation of the
government is by the adversaries of the plan of the
convention supposed to consist in this, that in the former
the powers operate on the political bodies composing
the confederacy in their political capacities;
in the latter, on the individual citizens
composing the nation in their individual capacities.
On trying the constitution by this criterion,
it falls under the national, not the federal character;
though perhaps not so completely as has been understood.
In several cases and particularly in the trial of
controversies to which states may be parties,
they must be viewed and proceeded against
in their collective and political capacities only.
But the operation of the government on the people
in their individual capacities in its ordinary and
most essential proceedings, will on the whole,
in the sense of its opponents, designate it
in this relation, a national government.
But if the government be national with regard to the
operation of its powers, it changes its aspect again when
we contemplate it in relation to the extent of its powers.
The idea of a national government involves in it,
not only an authority over the individual citizens,
but an indefinite supremacy over all persons and things,
so far as they are objects of lawful government.
Among a people consolidated into one nation this
supremacy is completely vested in the national legislature.
Among communities united for particular purposes,
it is vested partly in the general
and partly in the municipal legislatures.
In the former case all local authorities are
Subordinate to the supreme and may be
controlled, directed, or abolished by it at pleasure.
In the latter the local or municipal authorities form
distinct and independent portions of the supremacy,
no more subject within their respective spheres
to the general authority, than the general authority
is subject to them within its own sphere.
In this relation then, the proposed government
cannot be deemed a national one;
since its jurisdiction extends to certain enumerated
objects only, and leaves to the several states a residuary
and inviolable sovereignty over all other objects.
It is true that in controversies relating to the
boundary between the two jurisdictions,
the tribunal which is ultimately to decide,
is to be established under the general government.
But this does not change the principle of the case.
The decision is to be impartially made,
according to the rules of the constitution;
and all the usual and most effectual precautions
are taken to secure this impartiality.
Some such tribunal is clearly essential to prevent
an appeal to the sword, and a dissolution of the compact;
and that it ought to be established under the general,
rather than under the local governments;
or to speak more properly, that it could be
safely established under the first alone,
is a position not likely to be combatted.
If we try the constitution by its last relation to the
authority by which amendments are to be made,
we find it neither wholly national, nor wholly federal.
Were it wholly national, the supreme and ultimate authority
would reside in the majority of the people of the union;
and this authority would be competent at all times,
like that of a majority of every national society,
to alter or abolish its established government.
Were it wholly federal on the other hand, the concurrence of
each state in the union would be essential
to every alteration that would be binding on all.
The mode provided by the plan of the convention,
is not founded on either of these principles.
In requiring more than a majority, and particularly,
in computing the proportion by states, not by citizens,
it departs from the national,
and advances towards the federal character:
In rendering the concurrence of less than the whole
number of states sufficient, it loses again the federal,
and partakes of the national character.
The proposed constitution therefore, even when tested
by the rules laid down by its antagonists, is in strictness,
neither a national nor a federal constitution;
but a composition of both.
In its foundation it is federal, not national;
in the sources from which the ordinary powers of the
government are drawn, it is partly federal,
and partly national; in the operation of these powers,
it is national, not federal; in the extent of them again,
it is federal, not national; and finally,
in the authoritative mode of introducing amendments,
it is neither wholly federal, nor wholly national.4
On 18 January 1788 Madison wrote Federalist Paper #40 “The Powers
of the Convention to Form a Mixed Government Examined and Sustained.”
In the last two paragraphs shown below he
summarized the main issue of the document:
But that the objectors may be disarmed of every pretext,
it shall be granted for a moment, that the convention were
neither authorized by their commission, nor justified by
circumstances in proposing a constitution for their country:
Does it follow that the constitution
ought for that reason alone to be rejected?
If according to the noble precept, it be lawful to
accept good advice even from an enemy,
shall we set the ignoble example of refusing
such advice even when it is offered by our friends?
The prudent enquiry in all cases, ought surely
to be not so much from whom the advice comes,
as whether the advice be good.
The sum of what has been here advanced and proved,
is that the charge against the convention of exceeding their
powers, except in one instance little urged by the objectors,
has no foundation to support it; that if they had exceeded
their powers, they were not only warranted but required,
as the confidential servants of their country by the
circumstances in which they were placed to exercise the
liberty which they assumed, and that finally, if they had
violated both their powers, and their obligations in
proposing a constitution, this ought nevertheless
to be embraced, if it be calculated to accomplish
the views and happiness of the people of America.
How far this character is due to the constitution,
is the subject under investigation.5
On 22 January 1788 Madison published #42
“The Powers Conferred by the Constitution Further Considered.”
Here are some excerpts:
It were doubtless to be wished that the power
of prohibiting the importation of slaves,
had not been postponed until the year 1808,
or rather that it had been suffered
to have immediate operation.
But it is not difficult to account either for this restriction
on the general government, or for the manner
in which the whole clause is expressed.
It ought to be considered as a great point gained in favor
of humanity, that a period of twenty years may terminate
forever within these states, a traffic which has so long
and so loudly upbraided the barbarism of modern policy;
that within that period it will receive a considerable
discouragement from the federal government,
and may be totally abolished by a concurrence
of the few states which continue the unnatural traffic,
in the prohibitory example which has been given
by so great a majority of the union.
Happy would it be for the unfortunate Africans
if an equal prospect lay before them of being redeemed
from the oppressions of their European brethren!
Attempts have been made to pervert this clause
into an objection against the constitution, by representing
it on one side as a criminal toleration of an illicit practice,
and on another, as calculated to prevent voluntary
and beneficial emigrations from Europe to America.
I mention these misconstructions, not with a view to give
them an answer, for they deserve none;
but as specimens of the manner and spirit
in which some have thought fit to conduct
their opposition to the proposed government….
The defect of power in the existing confederacy
to regulate the commerce between its several members
is in the number of those which have been
clearly pointed out by experience.
To the proofs and remarks which former papers
have brought into view on this subject, it may be added,
that without this supplemental provision, the great
and essential power of regulating foreign commerce
would have been incomplete, and ineffectual.
A very material object of this power was the relief of the
states which import and export through other states, from
the improper contributions levied on them by the latter.
Were these at liberty to regulate the trade between
state and state, it must be foreseen that ways would
be found out to load the articles of import and export
during the passage through their jurisdiction
with duties which would fall on the makers of the latter
and the consumers of the former:
We may be assured by past experience, that such a practice
would be introduced by future contrivances; and both by
that and a common knowledge of human affairs, that it
would nourish unceasing animosities and not improbably
terminate in serious interruptions of the public tranquility.
To those who do not view the question through the medium
of passion or of interest, the desire of the commercial states
to collect in any form, an indirect revenue from their
uncommercial neighbors, must appear not less impolitic
than it is unfair; since it would stimulate the injured party,
by resentment as well as interest, to resort to less
convenient channels for their foreign trade.
But the mild voice of reason pleading the cause of an
enlarged and permanent interest is but too often drowned
before public bodies as well as individuals, by the clamors
of an impatient avidity for immediate and immoderate gain.
The necessity of a superintending authority over
the reciprocal trade of confederated states has been
illustrated by other examples as well as our own.
In Switzerland, where the union is so very slight,
each canton is obliged to allow to merchandizes,
a passage through its jurisdiction into other cantons,
without an augmentation of the tolls.
In Germany it is a law of the empire, that the princes and
states shall not lay tolls or customs on bridges, rivers, or
passages without the consent of the emperor and diet;
though it appears from a quotation in an antecedent paper,
that the practice in this as in many other instances in that
confederacy has not followed the law and has produced
there the mischiefs which have been foreseen here.
Among the restraints imposed by the union of the
Netherlands on its members, one is, that they shall not
establish imposts disadvantageous to their neighbors
without the general permission.
The regulation of commerce with the Indian tribes
is very properly unfettered from two limitations
in the articles of confederation, which render
the provision obscure and contradictory.
The power is there restrained to Indians, not members
of any of the states, and is not to violate or infringe
the legislative right of any state within its own limits.
What description of Indians are to be deemed members
of a state is not yet settled; and has been a question of
frequent perplexity and contention in the federal councils.
And how the trade with Indians, though not
members of a state, yet residing within its legislative
jurisdiction, can be regulated by an external authority
without so far intruding on the internal rights
of legislation is absolutely incomprehensible.
This is not the only case in which the articles of
confederation have inconsiderately endeavored
to accomplish impossibilities; to reconcile a partial
sovereignty in the union with complete sovereignty
in the states; to subvert a mathematical axiom
by taking away a part and letting the whole remain.6
On 6 February 1788 James Madison published #51
“The Structure of the Government Must Furnish the Proper
Checks and Balance Between the Different Departments.”
To what expedient then shall we finally
resort for maintaining in practice the necessary
partition of power among the several departments,
as laid down in the constitution?
The only answer that can be given is, that as all these
exterior provisions are found to be inadequate,
the defect must be supplied by so contriving the interior
structure of the government, as that its several constituent
parts may by their mutual relations be the means of
keeping each other in their proper places.
Without presuming to undertake a full development of this
important idea, I will hazard a few general observations,
which may perhaps place it in a clearer light, and enable
us to form a more correct judgment of the principles and
structure of the government planned by the convention.
In order to lay a due foundation for that separate and
distinct exercise of the different powers of government,
which to a certain extent, is admitted on all hands to be
essential to the preservation of liberty, it is evident
that each department should have a will of its own;
and consequently should be so constituted that
the members of each should have as little agency as
possible in the appointment of the members of the others.
Were this principle rigorously adhered to,
it would require that all the appointments for the
supreme executive, legislative and judiciary
magistracies should be drawn from the same fountain
of authority, the people, through channels, having
no communication whatever with one another.
Perhaps such a plan of constructing the several
departments would be less difficult in practice
than it may in contemplation appear.
Some difficulties however, and some additional expense
would attend the execution of it.
Some deviations therefore from
the principle must be admitted.
In the constitution of the judiciary department in particular,
it might be inexpedient to insist rigorously on the principle;
first, because peculiar qualifications being essential in the
members, the primary consideration ought to be to select
that mode of choice, which best secures these qualifications;
secondly, because the permanent tenure by which
the appointments are held in that department,
must soon destroy all sense of dependence
on the authority conferring them.
It is equally evident that the members of each department
should be as little dependent as possible on those of
the others, for the emoluments annexed to their offices.
Were the executive magistrate, or the judges,
not independent of the legislature in this particular, their
independence in every other would be merely nominal.
But the great security against a gradual concentration
of the several powers in the same department,
consists in giving to those who administer each department,
the necessary constitutional means and personal motives
to resist encroachments of the others.
The provision for defense must in this, as in all other cases,
be made commensurate to the danger of attack.
Ambition must be made to counteract ambition.
The interest of the man must be connected
with the constitutional rights of the place.
It may be a reflection on human nature, that such devices
should be necessary to control the abuses of government.
But what is government itself but the greatest
of all reflections on human nature?
If men were angels, no government would be necessary.
If angels were to govern men, neither external
nor internal controls on government would be necessary.
In framing a government which is to be administered
by men over men, the great difficulty lies in this:
You must first enable the government to control the
governed; and in the next place, oblige it to control itself.
A dependence on the people is no doubt the primary control
on the government; but experience has taught mankind
the necessity of auxiliary precautions.
This policy of supplying by opposite and rival interests
the defect of better motives might be traced through the
whole system of human affairs, private as well as public.
We see it particularly displayed in all the subordinate
distributions of power; where the constant aim is to divide
and arrange the several offices in such a manner as that
each may be a check on the other; that the private interest
of every individual may be a centinel over the public rights.
These inventions of prudence cannot be less requisite
in the distribution of the supreme powers of the state.
But it is not possible to give to each department
an equal power of self-defense.
In republican government the legislative authority
necessarily predominates.
The remedy for this inconveniency is to divide the
legislature into different branches; and to render them by
different modes of election and different principles of action,
as little connected with each other, as the nature
of their common functions and their common
dependence on the society will admit.
It may even be necessary to guard against dangerous
encroachments by still further precautions.
As the weight of the legislative authority requires that
it should be thus divided, the weakness of the executive
may require, on the other hand, that it should be fortified.
An absolute negative on the legislature
appears at first view to be the natural defense
with which the executive magistrate should be armed.
But perhaps it would be neither altogether safe,
nor alone sufficient.
On ordinary occasions it might not be exerted with
the requisite firmness, and on extraordinary occasions
it might be perfidiously abused.
May not this defect of an absolute negative be supplied by
some qualified connection between this weaker department,
and the weaker branch of the stronger department,
by which the latter may be led to support the
constitutional rights of the former without being too
much detached from the rights of its own department?
If the principles on which these observations are founded
be just, as I persuade myself they are, and they be applied
as a criterion to the several state constitutions
and to the federal constitution, it will be found, that
if the latter does not perfectly correspond with them,
the former are infinitely less able to bear such a test.
There are moreover two considerations particularly
applicable to the federal system of America, which
place that system in a very interesting point of view.
First. In a single republic all the power surrendered
by the people is submitted to the administration
of a single government; and the usurpations are
guarded against by a division of the government
into distinct and separate departments.
In the compound republic of America the power
surrendered by the people is first divided between two
distinct governments, and then the portion allotted to each,
subdivided among distinct and separate departments.
Hence a double security arises to the rights of the people.
The different governments will control each other;
at the same time that each will be controlled by itself.
Second. It is of great importance in a republic,
not only to guard the society against the
oppression of its rulers, but to guard one part
of the society against the injustice of the other part.
Different interests necessarily exist
in different classes of citizens.
If a majority be united by a common interest,
the rights of the minority will be insecure.
There are but two methods of providing against this evil:
The one by creating a will in the community
independent of the majority, that is of the society itself;
the other by comprehending in the society so many
separate descriptions of citizens, as will render
an unjust combination of a majority of the whole
very improbable, if not impracticable.
The first method prevails in all governments
possessing a hereditary or self-appointed authority.
This at best is but a precarious security;
because a power independent of the society
may as well espouse the unjust views of the major,
as the rightful interests of the minor party,
and may possibly be turned against both parties.
The second method will be exemplified
in the federal republic of the United States.
While all authority in it will be derived from and
dependent on the society, the society itself will be
broken into so many parts, interests and classes of citizens,
that the rights of individuals or of the minority will be in
little danger from interested combinations of the majority.
In a free government the security for civil rights
must be the same as that for religious rights.
It consists in the one case in the multiplicity of interests,
and in the other, in the multiplicity of sects.
The degree of security in both cases will depend on
the number of interests and sects; and this may be
presumed to depend on the extent of country and number
of people comprehended under the same government.
This view of the subject must particularly recommend
a proper federal system to all the sincere and
considerate friends of republican government:
Since it shows that in exact proportion as the territory
of the union may be formed into more circumscribed
confederacies or states, oppressive combinations of a
majority will be facilitated, the best security under the
republican form for the rights of every class of citizens
will be diminished; and consequently, the stability and
independence of some member of the government,
the only other security must be proportionally increased.
Justice is the end of government.
It is the end of civil society.
It ever has been and ever will be pursued until
it be obtained or until liberty be lost in the pursuit.
In a society under the forms of which the stronger faction
can readily unite and oppress the weaker,
anarchy may as truly be said to reign
as in a state of nature where the weaker individual
is not secured against the violence of the stronger:
And as in the latter state even the stronger individuals
are prompted by the uncertainty of their condition,
to submit to a government which may protect
the weak as well as themselves:
So in the former state will the more powerful factions
or parties be gradually induced by a like motive,
to wish for a government which will protect all parties,
the weaker as well as the more powerful.
It can be little doubted that if the state of Rhode Island
was separated from the confederacy and left to itself,
the insecurity of rights under the popular form of
government within such narrow limits would be
displayed by such reiterated oppressions of factious
majorities, that some power altogether independent of
the people would soon be called for by the voice of the
very factions whose misrule had proved the necessity of it.
In the extended republic of the United States
and among the great variety of interests, parties
and sects which it embraces, a coalition of a majority of
the whole society could seldom take place upon any other
principles than those of justice and the general good.
While there being thus less danger to a minor from the
will of the major party, there must be less pretext also,
to provide for the security of the former by introducing
into the government a will not dependent on the latter;
or in other words, a will independent of the society itself.
It is no less certain than it is important, notwithstanding
the contrary opinions which have been entertained,
that the larger the society, provided it lie within a practicable
sphere, the more duly capable it will be of self-government.
And happily for the republican cause, the practicable sphere
may be carried to a very great extent by a judicious
modification and mixture of the federal principle.7
Notes
1. The Federalist Papers ed. Clinton Rossiter, p. 71-79.
2. Ibid., p. 94-100.
3. Ibid., p. 220-227.
4. Ibid., p. 236-243.
5. Ibid., p. 250-251.
6. Ibid., p. 262-265.
7. Ibid., p. 317-322.