IT IS not a little remarkable that in every case reported by ancient
history, in which government has been established with deliberation
and consent, the task, of framing it has not been committed to an
assembly of men, but has been performed by some individual citizen
of preeminent wisdom and approved integrity.
Minos, we learn, was the primitive founder of the government of
Crete, as Zaleucus was of that of the Locrians. Theseus first, and
after him Draco and Solon, instituted the government of Athens.
Lycurgus was the lawgiver of Sparta. The foundation of the original
government of rome was laid by Romulus, and the work completed by
two of his elective successors, Numa and Tullius Hostilius. On the
abolition of royalty the consular administration was substituted by
Brutus, who stepped forward with a project for such a reform, which,
he alleged, had been prepared by Tullius Hostilius, and to which his
address obtained the assent and ratification of the senate and
people. This remark is applicable to confederate governments also.
Amphictyon, we are told, was the author of that which bore his name.
The Achaean league received its first birth from Achaeus, and its
second from Aratus.
What degree of agency these reputed lawgivers might have in their
respective establishments, or how far they might be clothed with the
legitimate authority of the people, cannot in every instance be
ascertained. In some, however, the proceeding was strictly regular.
Draco appears to have been intrusted by the people of Athens with
indefinite powers to reform its government and laws. And Solon,
according to Plutarch, was in a manner compelled, by the universal
suffrage of his fellow-citizens, to take upon him the sole and
absolute power of new modelling the constitution. The proceedings
under Lycurgus were less regular; but as far as the advocates for a
regular reform could prevail, they all turned their eyes towards the
single efforts of that celebrated patriot and sage, instead of
seeking to bring about a revolution by the intervention of a
deliberative body of citizens.
Whence could it have proceeded that a people, jealous as the Greeks
were of their liberty, should so far abandon the rules of caution as
to place their destiny in the hands of a single citizen? Whence
could it have proceeded, that the Athenians, a people who would not
suffer an army to be commanded by fewer than ten generals, and who
required no other proof of danger to their liberties than the
illustrious merit of a fellow-citizen, should consider one
illustrious citizen as a more eligible depositary of the fortunes of
themselves and their posterity, than a select body of citizens, from
whose common deliberations more wisdom, as well as more safety,
might have been expected? These questions cannot be fully answered,
without supposing that the fears of discord and disunion among a
number of counsellors exceed the apprehension of treachery or
incapacity in a single individual. History informs us, likewise, of
the difficulties with which these celebrated reformers had to
contend, as well at the expedients which they were obliged to employ
in order to carry their reforms into effect. Solon, who seems to
have indulged a more temporizing policy, confessed that he had not
given to his countrymen the government best suited to their
happiness, but most tolerable to their prejudices. And Lycurgus,
more true to his object, was under the necessity of mixing a portion
of violence with the authority of superstition, and of securing his
final success by a voluntary renunciation, first of his country, and
then of his life. If these lessons teach us, on one hand, to admire
the improvement made by America on the ancient mode of preparing and
establishing regular plans of government, they serve not less, on
the other, to admonish us of the hazards and difficulties incident
to such experiments, and of the great imprudence of unnecessarily
multiplying them.
Is it an unreasonable conjecture, that the errors which may be
contained in the plan of the convention are such as have resulted
rather from the defect of antecedent experience on this complicated
and difficult subject, than from a want of accuracy or care in the
investigation of it; and, consequently, such as will not be
ascertained until an actual trial shall have pointed them out? This
conjecture is rendered probable, not only by many considerations of
a general nature, but by the particular case of the Articles of
Confederation. It is observable that among the numerous objections
and amendments suggested by the several States, when these articles
were submitted for their ratification, not one is found which
alludes to the great and radical error which on actual trial has
discovered itself. And if we except the observations which New
Jersey was led to make, rather by her local situation, than by her
peculiar foresight, it may be questioned whether a single suggestion
was of sufficient moment to justify a revision of the system. There
is abundant reason, nevertheless, to suppose that immaterial as
these objections were, they would have been adhered to with a very
dangerous inflexibility, in some States, had not a zeal for their
opinions and supposed interests been stifled by the more powerful
sentiment of self-preservation. One State, we may remember,
persisted for several years in refusing her concurrence, although
the enemy remained the whole period at our gates, or rather in the
very bowels of our country. Nor was her pliancy in the end effected
by a less motive, than the fear of being chargeable with protracting
the public calamities, and endangering the event of the contest.
Every candid reader will make the proper reflections on these
important facts.
A patient who finds his disorder daily growing worse, and that an
efficacious remedy can no longer be delayed without extreme danger,
after coolly revolving his situation, and the characters of
different physicians, selects and calls in such of them as he judges
most capable of administering relief, and best entitled to his
confidence. The physicians attend; the case of the patient is
carefully examined; a consultation is held; they are unanimously
agreed that the symptoms are critical, but that the case, with
proper and timely relief, so far from being desperate, that it may
be made to issue in an improvement of his constitution. They are
equally unanimous in prescribing the remedy, by which this happy
effect is to be produced. The prescription is no sooner made known,
however, than a number of persons interpose, and, without denying
the reality or danger of the disorder, assure the patient that the
prescription will be poison to his constitution, and forbid him,
under pain of certain death, to make use of it. Might not the
patient reasonably demand, before he ventured to follow this advice,
that the authors of it should at least agree among themselves on
some other remedy to be substituted? And if he found them differing
as much from one another as from his first counsellors, would he not
act prudently in trying the experiment unanimously recommended by
the latter, rather than be hearkening to those who could neither
deny the necessity of a speedy remedy, nor agree in proposing one?
Such a patient and in such a situation is America at this moment.
She has been sensible of her malady. She has obtained a regular and
unanimous advice from men of her own deliberate choice. And she is
warned by others against following this advice under pain of the
most fatal consequences. Do the monitors deny the reality of her
danger? No. Do they deny the necessity of some speedy and powerful
remedy? No. Are they agreed, are any two of them agreed, in their
objections to the remedy proposed, or in the proper one to be
substituted? Let them speak for themselves. This one tells us that
the proposed Constitution ought to be rejected, because it is not a
confederation of the States, but a government over individuals.
Another admits that it ought to be a government over individuals to
a certain extent, but by no means to the extent proposed. A third
does not object to the government over individuals, or to the extent
proposed, but to the want of a bill of rights. A fourth concurs in
the absolute necessity of a bill of rights, but contends that it
ought to be declaratory, not of the personal rights of individuals,
but of the rights reserved to the States in their political
capacity. A fifth is of opinion that a bill of rights of any sort
would be superfluous and misplaced, and that the plan would be
unexceptionable but for the fatal power of regulating the times and
places of election. An objector in a large State exclaims loudly
against the unreasonable equality of representation in the Senate.
An objector in a small State is equally loud against the dangerous
inequality in the House of Representatives. From this quarter, we
are alarmed with the amazing expense, from the number of persons who
are to administer the new government. From another quarter, and
sometimes from the same quarter, on another occasion, the cry is
that the Congress will be but a shadow of a representation, and that
the government would be far less objectionable if the number and the
expense were doubled. A patriot in a State that does not import or
export, discerns insuperable objections against the power of direct
taxation. The patriotic adversary in a State of great exports and
imports, is not less dissatisfied that the whole burden of taxes may
be thrown on consumption. This politician discovers in the
Constitution a direct and irresistible tendency to monarchy; that is
equally sure it will end in aristocracy. Another is puzzled to say
which of these shapes it will ultimately assume, but see clearly it
must be one or other of them; whilst a fourth is not wanting, who
with no less confidence affirms that the Constitution is so far from
having a bias towards either of these dangers, that the weight on
that side will not be sufficient to keep it upright and firm against
its opposite propensities. With another class of adversaries to the
Constitution the language is that the legislative, executive, and
judiciary departments are intermixed in such a manner as to
contradict all the ideas of regular government and all the requisite
precautions in favor of liberty. Whilst this objection circulates in
vague and general expressions, there are but a few who lend their
sanction to it.
Let each one come forward with his particular explanation, and
scarce any two are exactly agreed upon the subject. In the eyes of
one the junction of the Senate with the President in the responsible
function of appointing to offices, instead of vesting this executive
power in the Executive alone, is the vicious part of the
organization. To another, the exclusion of the House of
Representatives, whose numbers alone could be a due security against
corruption and partiality in the exercise of such a power, is
equally obnoxious. With another, the admission of the President into
any share of a power which must ever be a dangerous engine in the
hands of the executive magistrate, is an unpardonable violation of
the maxims of republican jealousy. No part of the arrangement,
according to some, is more inadmissible than the trial of
impeachments by the Senate, which is alternately a member both of
the legislative and executive departments, when this power so
evidently belonged to the judiciary department. "We concur fully,"
reply others, "in the objection to this part of the plan, but we can
never agree that a reference of impeachments to the judiciary
authority would be an amendment of the error. Our principal dislike
to the organization arises from the extensive powers already lodged
in that department." Even among the zealous patrons of a council of
state the most irreconcilable variance is discovered concerning the
mode in which it ought to be constituted. The demand of one
gentleman is, that the council should consist of a small number to
be appointed by the most numerous branch of the legislature. Another
would prefer a larger number, and considers it as a fundamental
condition that the appointment should be made by the President
himself.
As it can give no umbrage to the writers against the plan of the
federal Constitution, let us suppose, that as they are the most
zealous, so they are also the most sagacious, of those who think the
late convention were unequal to the task assigned them, and that a
wiser and better plan might and ought to be substituted. Let us
further suppose that their country should concur, both in this
favorable opinion of their merits, and in their unfavorable opinion
of the convention; and should accordingly proceed to form them into
a second convention, with full powers, and for the express purpose
of revising and remoulding the work of the first. Were the
experiment to be seriously made, though it required some effort to
view it seriously even in fiction, I leave it to be decided by the
sample of opinions just exhibited, whether, with all their enmity to
their predecessors, they would, in any one point, depart so widely
from their example, as in the discord and ferment that would mark
their own deliberations; and whether the Constitution, now before
the public, would not stand as fair a chance for immortality, as
Lycurgus gave to that of Sparta, by making its change to depend on
his own return from exile and death, if it were to be immediately
adopted, and were to continue in force, not until a BETTER, but
until ANOTHER should be agreed upon by this new assembly of
lawgivers.
It is a matter both of wonder and regret, that those who raise so
many objections against the new Constitution should never call to
mind the defects of that which is to be exchanged for it. It is not
necessary that the former should be perfect: it is sufficient that
the latter is more imperfect. No man would refuse to give brass for
silver or gold, because the latter had some alloy in it. No man
would refuse to quit a shattered and tottering habitation for a firm
and commodious building, because the latter had not a porch to it,
or because some of the rooms might be a little larger or smaller, or
the ceiling a little higher or lower than his fancy would have
planned them. But waiving illustrations of this sort, is it not
manifest that most of the capital objections urged against the new
system lie with tenfold weight against the existing Confederation?
Is an indefinite power to raise money dangerous in the hands of the
federal government? The present Congress can make requisitions to
any amount they please, and the States are constitutionally bound to
furnish them; they can emit bills of credit as long as they will pay
for the paper; they can borrow, both abroad and at home, as long as
a shilling will be lent. Is an indefinite power to raise troops
dangerous? The Confederation gives to Congress that power also; and
they have already begun to make use of it. Is it improper and unsafe
to intermix the different powers of government in the same body of
men? Congress, a single body of men, are the sole depositary of all
the federal powers. Is it particularly dangerous to give keys of the
treasury, and the command of the army, into the same hands? The
Confederation places them both in the hands of Congress. Is a bill
of rights essential to liberty? The Confederation has no bill of
rights. Is it an objection against the new Constitution, that it
empowers the Senate, with the concurrence of the Executive, to make
treaties which are to be the laws of the land? The existing
Congress, without any such control, can make treaties which they
themselves have declared, and most of the States have recognized, to
be the supreme law of the land. Is the importation of slaves
permitted by the new Constitution for twenty years? By the old it is
permitted forever.
I shall be told, that however dangerous this mixture of powers may
be in theory, it is rendered harmless by the dependence of Congress
on the States for the means of carrying them into practice; that
however large the mass of powers may be, it is in fact a lifeless
mass. Then, say I, in the first place, that the Confederation is
chargeable with the still greater folly of declaring certain powers
in the federal government to be absolutely necessary, and at the
same time rendering them absolutely nugatory; and, in the next
place, that if the Union is to continue, and no better government be
substituted, effective powers must either be granted to, or assumed
by, the existing Congress; in either of which events, the contrast
just stated will hold good. But this is not all. Out of this
lifeless mass has already grown an excrescent power, which tends to
realize all the dangers that can be apprehended from a defective
construction of the supreme government of the Union.
It is now no longer a point of speculation and hope, that the
Western territory is a mine of vast wealth to the United States; and
although it is not of such a nature as to extricate them from their
present distresses, or for some time to come, to yield any regular
supplies for the public expenses, yet must it hereafter be able,
under proper management, both to effect a gradual discharge of the
domestic debt, and to furnish, for a certain period, liberal
tributes to the federal treasury. A very large proportion of this
fund has been already surrendered by individual States; and it may
with reason be expected that the remaining States will not persist
in withholding similar proofs of their equity and generosity. We may
calculate, therefore, that a rich and fertile country, of an area
equal to the inhabited extent of the United States, will soon become
a national stock. Congress have assumed the administration of this
stock. They have begun to render it productive. Congress have
undertaken to do more: they have proceeded to form new States, to
erect temporary governments to appoint officers for them, and to
prescribe the conditions on which such States shall be admitted into
the Confederacy. All this has been done; and done without the least
color of constitutional authority. Yet no blame has been whispered;
no alarm has been sounded. A GREAT AND INDEPENDENT fund of revenue
is passing into the hands of a SINGLE BODY of men, who can RAISE
TROOPS to an INDEFINITE NUMBER, and appropriate money to their
support for an INDEFINITE PERIOD OF TIME. And yet there are men, who
have not only been silent spectators of this prospect, but who are
advocates for the system which exhibits it; and, at the same time,
urge against the new system the objections which we have heard.
Would they not act with more consistency, in urging the
establishment of the latter, as no less necessary to guard the Union
against the future powers and resources of a body constructed like
the existing Congress, than to save it from the dangers threatened
by the present impotency of that Assembly?
I mean not, by any thing here said, to throw censure on the measures
which have been pursued by Congress. I am sensible they could not
have done otherwise. The public interest, the necessity of the case,
imposed upon them the task of overleaping their constitutional
limits. But is not the fact an alarming proof of the danger
resulting from a government which does not possess regular powers
commensurate to its objects? A dissolution or usurpation is the
dreadful dilemma to which it is continually exposed.
Signed "PUBLIUS"
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