fp37.txt

IN REVIEWING the defects of the existing Confederation, and showing that 
        they cannot be supplied by a government of less energy than that before 
        the public, several of the most important principles of the latter fell 
        of course under consideration. But as the ultimate object of these papers 
        is to determine clearly and fully the merits of this Constitution, and 
        the expediency of adopting it, our plan cannot be complete without taking 
        a more critical and thorough survey of the work of the convention, without 
        examining it on all its sides, comparing it in all its parts, and calculating 
        its probable effects. That this remaining task may be executed under impressions conducive 
        to a just and fair result, some reflections must in this place be indulged, 
        which candor previously suggests. It is a misfortune, inseparable from human affairs, that public measures 
        are rarely investigated with that spirit of moderation which is essential 
        to a just estimate of their real tendency to advance or obstruct the public 
        good; and that this spirit is more apt to be diminished than promoted, 
        by those occasions which require an unusual exercise of it. To those who 
        have been led by experience to attend to this consideration, it could 
        not appear surprising, that the act of the convention, which recommends 
        so many important changes and innovations, which may be viewed in so many 
        lights and relations, and which touches the springs of so many passions 
        and interests, should find or excite dispositions unfriendly, both on 
        one side and on the other, to a fair discussion and accurate judgment 
        of its merits. In some, it has been too evident from their own publications, 
        that they have scanned the proposed Constitution, not only with a predisposition 
        to censure, but with a predetermination to condemn; as the language held 
        by others betrays an opposite predetermination or bias, which must render 
        their opinions also of little moment in the question. In placing, however, 
        these different characters on a level, with respect to the weight of their 
        opinions, I wish not to insinuate that there may not be a material difference 
        in the purity of their intentions. It is but just to remark in favor of 
        the latter description, that as our situation is universally admitted 
        to be peculiarly critical, and to require indispensably that something 
        should be done for our relief, the predetermined patron of what has been 
        actually done may have taken his bias from the weight of these considerations, 
        as well as from considerations of a sinister nature. The predetermined 
        adversary, on the other hand, can have been governed by no venial motive 
        whatever. The intentions of the first may be upright, as they may on the 
        contrary be culpable. The views of the last cannot be upright, and must 
        be culpable. But the truth is, that these papers are not addressed to 
        persons falling under either of these characters. They solicit the attention 
        of those only, who add to a sincere zeal for the happiness of their country, 
        a temper favorable to a just estimate of the means of promoting it. Persons of this character will proceed to an examination of the plan 
        submitted by the convention, not only without a disposition to find or 
        to magnify faults; but will see the propriety of reflecting, that a faultless 
        plan was not to be expected. Nor will they barely make allowances for 
        the errors which may be chargeable on the fallibility to which the convention, 
        as a body of men, were liable; but will keep in mind, that they themselves 
        also are but men, and ought not to assume an infallibility in rejudging 
        the fallible opinions of others. With equal readiness will it be perceived, that besides these inducements 
        to candor, many allowances ought to be made for the difficulties inherent 
        in the very nature of the undertaking referred to the convention. The novelty of the undertaking immediately strikes us. It has been shown 
        in the course of these papers, that the existing Confederation is founded 
        on principles which are fallacious; that we must consequently change this 
        first foundation, and with it the superstructure resting upon it. It has 
        been shown, that the other confederacies which could be consulted as precedents 
        have been vitiated by the same erroneous principles, and can therefore 
        furnish no other light than that of beacons, which give warning of the 
        course to be shunned, without pointing out that which ought to be pursued. 
        The most that the convention could do in such a situation, was to avoid 
        the errors suggested by the past experience of other countries, as well 
        as of our own; and to provide a convenient mode of rectifying their own 
        errors, as future experiences may unfold them. Among the difficulties encountered by the convention, a very important 
        one must have lain in combining the requisite stability and energy in 
        government, with the inviolable attention due to liberty and to the republican 
        form. Without substantially accomplishing this part of their undertaking, 
        they would have very imperfectly fulfilled the object of their appointment, 
        or the expectation of the public; yet that it could not be easily accomplished, 
        will be denied by no one who is unwilling to betray his ignorance of the 
        subject. Energy in government is essential to that security against external 
        and internal danger, and to that prompt and salutary execution of the 
        laws which enter into the very definition of good government. Stability 
        in government is essential to national character and to the advantages 
        annexed to it, as well as to that repose and confidence in the minds of 
        the people, which are among the chief blessings of civil society. An irregular 
        and mutable legislation is not more an evil in itself than it is odious 
        to the people; and it may be pronounced with assurance that the people 
        of this country, enlightened as they are with regard to the nature, and 
        interested, as the great body of them are, in the effects of good government, 
        will never be satisfied till some remedy be applied to the vicissitudes 
        and uncertainties which characterize the State administrations. On comparing, 
        however, these valuable ingredients with the vital principles of liberty, 
        we must perceive at once the difficulty of mingling them together in their 
        due proportions. The genius of republican liberty seems to demand on one 
        side, not only that all power should be derived from the people, but that 
        those intrusted with it should be kept in independence on the people, 
        by a short duration of their appointments; and that even during this short 
        period the trust should be placed not in a few, but a number of hands. 
        Stability, on the contrary, requires that the hands in which power is 
        lodged should continue for a length of time the same. A frequent change 
        of men will result from a frequent return of elections; and a frequent 
        change of measures from a frequent change of men: whilst energy in government 
        requires not only a certain duration of power, but the execution of it 
        by a single hand. How far the convention may have succeeded in this part of their work, 
        will better appear on a more accurate view of it. From the cursory view 
        here taken, it must clearly appear to have been an arduous part. Not less arduous must have been the task of marking the proper line of 
        partition between the authority of the general and that of the State governments. 
        Every man will be sensible of this difficulty, in proportion as he has 
        been accustomed to contemplate and discriminate objects extensive and 
        complicated in their nature. The faculties of the mind itself have never 
        yet been distinguished and defined, with satisfactory precision, by all 
        the efforts of the most acute and metaphysical philosophers. Sense, perception, 
        judgment, desire, volition, memory, imagination, are found to be separated 
        by such delicate shades and minute gradations that their boundaries have 
        eluded the most subtle investigations, and remain a pregnant source of 
        ingenious disquisition and controversy. The boundaries between the great 
        kingdom of nature, and, still more, between the various provinces, and 
        lesser portions, into which they are subdivided, afford another illustration 
        of the same important truth. The most sagacious and laborious naturalists 
        have never yet succeeded in tracing with certainty the line which separates 
        the district of vegetable life from the neighboring region of unorganized 
        matter, or which marks the ermination of the former and the commencement 
        of the animal empire. A still greater obscurity lies in the distinctive 
        characters by which the objects in each of these great departments of 
        nature have been arranged and assorted. When we pass from the works of nature, in which all the delineations 
        are perfectly accurate, and appear to be otherwise only from the imperfection 
        of the eye which surveys them, to the institutions of man, in which the 
        obscurity arises as well from the object itself as from the organ by which 
        it is contemplated, we must perceive the necessity of moderating still 
        further our expectations and hopes from the efforts of human sagacity. 
        Experience has instructed us that no skill in the science of government 
        has yet been able to discriminate and define, with sufficient certainty, 
        its three great provinces the legislative, executive, and judiciary; or 
        even the privileges and powers of the different legislative branches. 
        Questions daily occur in the course of practice, which prove the obscurity 
        which reins in these subjects, and which puzzle the greatest adepts in 
        political science. The experience of ages, with the continued and combined labors of the 
        most enlightened legislatures and jurists, has been equally unsuccessful 
        in delineating the several objects and limits of different codes of laws 
        and different tribunals of justice. The precise extent of the common law, 
        and the statute law, the maritime law, the ecclesiastical law, the law 
        of corporations, and other local laws and customs, remains still to be 
        clearly and finally established in Great Britain, where accuracy in such 
        subjects has been more industriously pursued than in any other part of 
        the world. The jurisdiction of her several courts, general and local, 
        of law, of equity, of admiralty, etc., is not less a source of frequent 
        and intricate discussions, sufficiently denoting the indeterminate limits 
        by which they are respectively circumscribed. All new laws, though penned 
        with the greatest technical skill, and passed on the fullest and most 
        mature deliberation, are considered as more or less obscure and equivocal, 
        until their meaning be liquidated and ascertained by a series of particular 
        discussions and adjudications. Besides the obscurity arising from the 
        complexity of objects, and the imperfection of the human faculties, the 
        medium through which the conceptions of men are conveyed to each other 
        adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, 
        therefore, requires not only that the ideas should be distinctly formed, 
        but that they should be expressed by words distinctly and exclusively 
        appropriate to them. But no language is so copious as to supply words 
        and phrases for every complex idea, or so correct as not to include many 
        equivocally denoting different ideas. Hence it must happen that however 
        accurately objects may be discriminated in themselves, and however accurately 
        the discrimination may be considered, the definition of them may be rendered 
        inaccurate by the inaccuracy of the terms in which it is delivered. And 
        this unavoidable inaccuracy must be greater or less, according to the 
        complexity and novelty of the objects defined. When the Almighty himself 
        condescends to address mankind in their own language, his meaning, luminous 
        as it must be, is rendered dim and doubtful by the cloudy medium through 
        which it is communicated. Here, then, are three sources of vague and incorrect definitions: indistinctness 
        of the object, imperfection of the organ of conception, inadequateness 
        of the vehicle of ideas. Any one of these must produce a certain degree 
        of obscurity. The convention, in delineating the boundary between the 
        federal and State jurisdictions, must have experienced the full effect 
        of them all. To the difficulties already mentioned may be added the interfering pretensions 
        of the larger and smaller States. We cannot err in supposing that the 
        former would contend for a participation in the government, fully proportioned 
        to their superior wealth and importance; and that the latter would not 
        be less tenacious of the equality at present enjoyed by them. We may well 
        suppose that neither side would entirely yield to the other, and consequently 
        that the struggle could be terminated only by compromise. It is extremely 
        probable, also, that after the ratio of representation had been adjusted, 
        this very compromise must have produced a fresh struggle between the same 
        parties, to give such a turn to the organization of the government, and 
        to the distribution of its powers, as would increase the importance of 
        the branches, in forming which they had respectively obtained the greatest 
        share of influence. There are features in the Constitution which warrant 
        each of these suppositions; and as far as either of them is well founded, 
        it shows that the convention must have been compelled to sacrifice theoretical 
        propriety to the force of extraneous considerations. Nor could it have been the large and small States only, which would marshal 
        themselves in opposition to each other on various points. Other combinations, 
        resulting from a difference of local position and policy, must have created 
        additional difficulties. As every State may be divided into different 
        districts, and its citizens into different classes, which give birth to 
        contending interests and local jealousies, so the different parts of the 
        United States are distinguished from each other by a variety of circumstances, 
        which produce a like effect on a larger scale. And although this variety 
        of interests, for reasons sufficiently explained in a former paper, may 
        have a salutary influence on the administration of the government when 
        formed, yet every one must be sensible of the contrary influence, which 
        must have been experienced in the task of forming it. Would it be wonderful if, under the pressure of all these difficulties, 
        the convention should have been forced into some deviations from that 
        artificial structure and regular symmetry which an abstract view of the 
        subject might lead an ingenious theorist to bestow on a Constitution planned 
        in his closet or in his imagination? The real wonder is that so many difficulties 
        should have been surmounted, and surmounted with a unanimity almost as 
        unprecedented as it must have been unexpected. It is impossible for any 
        man of candor to reflect on this circumstance without partaking of the 
        astonishment. It is impossible for the man of pious reflection not to 
        perceive in it a finger of that Almighty hand which has been so frequently 
        and signally extended to our relief in the critical stages of the revolution. We had occasion, in a former paper, to take notice of the repeated trials 
        which have been unsuccessfully made in the United Netherlands for reforming 
        the baneful and notorious vices of their constitution. The history of 
        almost all the great councils and consultations held among mankind for 
        reconciling their discordant opinions, assuaging their mutual jealousies, 
        and adjusting their respective interests, is a history of factions, contentions, 
        and disappointments, and may be classed among the most dark and degraded 
        pictures which display the infirmities and depravities of the human character. 
        If, in a few scattered instances, a brighter aspect is presented, they 
        serve only as exceptions to admonish us of the general truth; and by their 
        lustre to darken the gloom of the adverse prospect to which they are contrasted. 
        In revolving the causes from which these exceptions result, and applying 
        them to the particular instances before us, we are necessarily led to 
        two important conclusions. The first is, that the convention must have 
        enjoyed, in a very singular degree, an exemption from the pestilential 
        influence of party animosities the disease most incident to deliberative 
        bodies, and most apt to contaminate their proceedings. The second conclusion 
        is that all the deputations composing the convention were satisfactorily 
        accommodated by the final act, or were induced to accede to it by a deep 
        conviction of the necessity of sacrificing private opinions and partial 
        interests to the public good, and by a despair of seeing this necessity 
        diminished by delays or by new experiments.