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; 2nd, that this government was to be such as would be
adequate to the exigencies of government and the preservation of the
Union; 3rd, 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 effected 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 was 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 absolute
irreconcilable to each other; that no alterations or provisions in
the articles of the Confederation could possibly mound them into a
national and adequate government; into such a government as had 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
the authorized and usurped innovations; between the 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 it 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 (footnote 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-martial 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 admired 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 has 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," (footnote 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,1 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 his assembly? Or if there be a man who 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 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.
Signed "PUBLIUS"
Footnotes Explained:
Footnote Number 1. Connecticut and Rhode Island.
Footnote Number 2. Declaration of Independence.
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