The Powers of the Convention to Form a Mixed Government Examined and

Sustained



From the New York Packet.



Friday, January 18, 1788.



MADISON





To the People of the State of New York:



The second point to be examined is, whether the convention were

authorized to frame and propose this mixed Constitution. The powers of

the convention ought, in strictness, to be determined by an inspection

of the commissions given to the members by their respective

constituents. As all of these, however, had reference, either to the

recommendation from the meeting at Annapolis, in September, 1786, or to

that from Congress, in February, 1787, it will be sufficient to recur

to these particular acts. The act from Annapolis recommends the

“appointment of commissioners to take into consideration the situation

of the United States; to devise SUCH FURTHER PROVISIONS as shall appear

to them necessary to render the Constitution of the federal government

ADEQUATE TO THE EXIGENCIES OF THE UNION; and to report such an act for

that purpose, to the United States in Congress assembled, as when

agreed to by them, and afterwards confirmed by the legislature of every

State, will effectually provide for the same. “The recommendatory act

of Congress is in the words following: “WHEREAS, There is provision in

the articles of Confederation and perpetual Union, for making

alterations therein, by the assent of a Congress of the United States,

and of the legislatures of the several States; and whereas experience

hath evinced, that there are defects in the present Confederation; as a

mean to remedy which, several of the States, and PARTICULARLY THE STATE

OF NEW YORK, by express instructions to their delegates in Congress,

have suggested a convention for the purposes expressed in the following

resolution; and such convention appearing to be the most probable mean

of establishing in these States A FIRM NATIONAL GOVERNMENT: “Resolved,

That in the opinion of Congress it is expedient, that on the second

Monday of May next a convention of delegates, who shall have been

appointed by the several States, be held at Philadelphia, for the sole

and express purpose OF REVISING THE ARTICLES OF CONFEDERATION, and

reporting to Congress and the several legislatures such ALTERATIONS AND

PROVISIONS THEREIN, as shall, when agreed to in Congress, and confirmed

by the States, render the federal Constitution ADEQUATE TO THE

EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION. “From these

two acts, it appears, 1st, that the object of the convention was to

establish, in these States, A FIRM NATIONAL GOVERNMENT; 2d, that this

government was to be such as would be ADEQUATE TO THE EXIGENCIES OF

GOVERNMENT and THE PRESERVATION OF THE UNION; 3d, that these purposes

were to be effected by ALTERATIONS AND PROVISIONS IN THE ARTICLES OF

CONFEDERATION, as it is expressed in the act of Congress, or by SUCH

FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it stands in the

recommendatory act from Annapolis; 4th, that the alterations and

provisions were to be reported to Congress, and to the States, in order

to be agreed to by the former and confirmed by the latter. From a

comparison and fair construction of these several modes of expression,

is to be deduced the authority under which the convention acted. They

were to frame a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF

GOVERNMENT, and OF THE UNION; and to reduce the articles of

Confederation into such form as to accomplish these purposes.



There are two rules of construction, dictated by plain reason, as well

as founded on legal axioms. The one is, that every part of the

expression ought, if possible, to be allowed some meaning, and be made

to conspire to some common end. The other is, that where the several

parts cannot be made to coincide, the less important should give way to

the more important part; the means should be sacrificed to the end,

rather than the end to the means. Suppose, then, that the expressions

defining the authority of the convention were irreconcilably at

variance with each other; that a NATIONAL and ADEQUATE GOVERNMENT could

not possibly, in the judgment of the convention, be affected by

ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION; which part

of the definition ought to have been embraced, and which rejected?

Which was the more important, which the less important part? Which the

end; which the means? Let the most scrupulous expositors of delegated

powers; let the most inveterate objectors against those exercised by

the convention, answer these questions. Let them declare, whether it

was of most importance to the happiness of the people of America, that

the articles of Confederation should be disregarded, and an adequate

government be provided, and the Union preserved; or that an adequate

government should be omitted, and the articles of Confederation

preserved. Let them declare, whether the preservation of these articles

was the end, for securing which a reform of the government was to be

introduced as the means; or whether the establishment of a government,

adequate to the national happiness, was the end at which these articles

themselves originally aimed, and to which they ought, as insufficient

means, to have been sacrificed. But is it necessary to suppose that

these expressions are absolutely irreconcilable to each other; that no

ALTERATIONS or PROVISIONS in THE ARTICLES OF THE CONFEDERATION could

possibly mould them into a national and adequate government; into such

a government as has been proposed by the convention? No stress, it is

presumed, will, in this case, be laid on the TITLE; a change of that

could never be deemed an exercise of ungranted power. ALTERATIONS in

the body of the instrument are expressly authorized. NEW PROVISIONS

therein are also expressly authorized. Here then is a power to change

the title; to insert new articles; to alter old ones. Must it of

necessity be admitted that this power is infringed, so long as a part

of the old articles remain? Those who maintain the affirmative ought at

least to mark the boundary between authorized and usurped innovations;

between that degree of change which lies within the compass of

ALTERATIONS AND FURTHER PROVISIONS, and that which amounts to a

TRANSMUTATION of the government. Will it be said that the alterations

ought not to have touched the substance of the Confederation? The

States would never have appointed a convention with so much solemnity,

nor described its objects with so much latitude, if some SUBSTANTIAL

reform had not been in contemplation. Will it be said that the

FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview

of the convention, and ought not to have been varied? I ask, What are

these principles? Do they require that, in the establishment of the

Constitution, the States should be regarded as distinct and independent

sovereigns? They are so regarded by the Constitution proposed. Do they

require that the members of the government should derive their

appointment from the legislatures, not from the people of the States?

One branch of the new government is to be appointed by these

legislatures; and under the Confederation, the delegates to Congress

MAY ALL be appointed immediately by the people, and in two States[1]

are actually so appointed. Do they require that the powers of the

government should act on the States, and not immediately on

individuals? In some instances, as has been shown, the powers of the

new government will act on the States in their collective characters.

In some instances, also, those of the existing government act

immediately on individuals. In cases of capture; of piracy; of the post

office; of coins, weights, and measures; of trade with the Indians; of

claims under grants of land by different States; and, above all, in the

case of trials by courts-marshal in the army and navy, by which death

may be inflicted without the intervention of a jury, or even of a civil

magistrate; in all these cases the powers of the Confederation operate

immediately on the persons and interests of individual citizens. Do

these fundamental principles require, particularly, that no tax should

be levied without the intermediate agency of the States? The

Confederation itself authorizes a direct tax, to a certain extent, on

the post office. The power of coinage has been so construed by Congress

as to levy a tribute immediately from that source also. But

pretermitting these instances, was it not an acknowledged object of the

convention and the universal expectation of the people, that the

regulation of trade should be submitted to the general government in

such a form as would render it an immediate source of general revenue?

Had not Congress repeatedly recommended this measure as not

inconsistent with the fundamental principles of the Confederation? Had

not every State but one; had not New York herself, so far complied with

the plan of Congress as to recognize the PRINCIPLE of the innovation?

Do these principles, in fine, require that the powers of the general

government should be limited, and that, beyond this limit, the States

should be left in possession of their sovereignty and independence? We

have seen that in the new government, as in the old, the general powers

are limited; and that the States, in all unenumerated cases, are left

in the enjoyment of their sovereign and independent jurisdiction. The

truth is, that the great principles of the Constitution proposed by the

convention may be considered less as absolutely new, than as the

expansion of principles which are found in the articles of

Confederation. The misfortune under the latter system has been, that

these principles are so feeble and confined as to justify all the

charges of inefficiency which have been urged against it, and to

require a degree of enlargement which gives to the new system the

aspect of an entire transformation of the old. In one particular it is

admitted that the convention have departed from the tenor of their

commission. Instead of reporting a plan requiring the confirmation OF

THE LEGISLATURES OF ALL THE STATES, they have reported a plan which is

to be confirmed by the PEOPLE, and may be carried into effect by NINE

STATES ONLY. It is worthy of remark that this objection, though the

most plausible, has been the least urged in the publications which have

swarmed against the convention. The forbearance can only have proceeded

from an irresistible conviction of the absurdity of subjecting the fate

of twelve States to the perverseness or corruption of a thirteenth;

from the example of inflexible opposition given by a MAJORITY of one

sixtieth of the people of America to a measure approved and called for

by the voice of twelve States, comprising fifty-nine sixtieths of the

people an example still fresh in the memory and indignation of every

citizen who has felt for the wounded honor and prosperity of his

country. As this objection, therefore, has been in a manner waived by

those who have criticised the powers of the convention, I dismiss it

without further observation. The THIRD point to be inquired into is,

how far considerations of duty arising out of the case itself could

have supplied any defect of regular authority. In the preceding

inquiries the powers of the convention have been analyzed and tried

with the same rigor, and by the same rules, as if they had been real

and final powers for the establishment of a Constitution for the United

States. We have seen in what manner they have borne the trial even on

that supposition. It is time now to recollect that the powers were

merely advisory and recommendatory; that they were so meant by the

States, and so understood by the convention; and that the latter have

accordingly planned and proposed a Constitution which is to be of no

more consequence than the paper on which it is written, unless it be

stamped with the approbation of those to whom it is addressed. This

reflection places the subject in a point of view altogether different,

and will enable us to judge with propriety of the course taken by the

convention. Let us view the ground on which the convention stood. It

may be collected from their proceedings, that they were deeply and

unanimously impressed with the crisis, which had led their country

almost with one voice to make so singular and solemn an experiment for

correcting the errors of a system by which this crisis had been

produced; that they were no less deeply and unanimously convinced that

such a reform as they have proposed was absolutely necessary to effect

the purposes of their appointment. It could not be unknown to them that

the hopes and expectations of the great body of citizens, throughout

this great empire, were turned with the keenest anxiety to the event of

their deliberations. They had every reason to believe that the contrary

sentiments agitated the minds and bosoms of every external and internal

foe to the liberty and prosperity of the United States. They had seen

in the origin and progress of the experiment, the alacrity with which

the PROPOSITION, made by a single State (Virginia), towards a partial

amendment of the Confederation, had been attended to and promoted. They

had seen the LIBERTY ASSUMED by a VERY FEW deputies from a VERY FEW

States, convened at Annapolis, of recommending a great and critical

object, wholly foreign to their commission, not only justified by the

public opinion, but actually carried into effect by twelve out of the

thirteen States. They had seen, in a variety of instances, assumptions

by Congress, not only of recommendatory, but of operative, powers,

warranted, in the public estimation, by occasions and objects

infinitely less urgent than those by which their conduct was to be

governed. They must have reflected, that in all great changes of

established governments, forms ought to give way to substance; that a

rigid adherence in such cases to the former, would render nominal and

nugatory the transcendent and precious right of the people to “abolish

or alter their governments as to them shall seem most likely to effect

their safety and happiness,”[2] since it is impossible for the people

spontaneously and universally to move in concert towards their object;

and it is therefore essential that such changes be instituted by some

INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and

respectable citizen or number of citizens. They must have recollected

that it was by this irregular and assumed privilege of proposing to the

people plans for their safety and happiness, that the States were first

united against the danger with which they were threatened by their

ancient government; that committees and congresses were formed for

concentrating their efforts and defending their rights; and that

CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the

constitutions under which they are now governed; nor could it have been

forgotten that no little ill-timed scruples, no zeal for adhering to

ordinary forms, were anywhere seen, except in those who wished to

indulge, under these masks, their secret enmity to the substance

contended for. They must have borne in mind, that as the plan to be

framed and proposed was to be submitted TO THE PEOPLE THEMSELVES, the

disapprobation of this supreme authority would destroy it forever; its

approbation blot out antecedent errors and irregularities. It might

even have occurred to them, that where a disposition to cavil

prevailed, their neglect to execute the degree of power vested in them,

and still more their recommendation of any measure whatever, not

warranted by their commission, would not less excite animadversion,

than a recommendation at once of a measure fully commensurate to the

national exigencies. Had the convention, under all these impressions,

and in the midst of all these considerations, instead of exercising a

manly confidence in their country, by whose confidence they had been so

peculiarly distinguished, and of pointing out a system capable, in

their judgment, of securing its happiness, taken the cold and sullen

resolution of disappointing its ardent hopes, of sacrificing substance

to forms, of committing the dearest interests of their country to the

uncertainties of delay and the hazard of events, let me ask the man who

can raise his mind to one elevated conception, who can awaken in his

bosom one patriotic emotion, what judgment ought to have been

pronounced by the impartial world, by the friends of mankind, by every

virtuous citizen, on the conduct and character of this assembly? Or if

there be a man whose propensity to condemn is susceptible of no

control, let me then ask what sentence he has in reserve for the twelve

States who USURPED THE POWER of sending deputies to the convention, a

body utterly unknown to their constitutions; for Congress, who

recommended the appointment of this body, equally unknown to the

Confederation; and for the State of New York, in particular, which

first urged and then complied with this unauthorized interposition? 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 inquiry, 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 assume; 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.



PUBLIUS.



 [1] Connecticut and Rhode Island.



 [2] Declaration of Independence.









THE FEDERALIST.