THE Constitution proposed by the convention may be considered under
two general points of view. The FIRST relates to the sum or quantity
of power which it vests in the government, including the restraints
imposed on the States. The SECOND, to the particular structure of
the government, and the distribution of this power among its several
branches.
Under the first view of the subject, two important questions arise:
1. Whether any part of the powers transferred to the general
government be unnecessary or improper? 2. Whether the entire mass of
them be dangerous to the portion of jurisdiction left in the several
States?
Is the aggregate power of the general government greater than ought
to have been vested in it? This is the first question.
It cannot have escaped those who have attended with candor to the
arguments employed against the extensive powers of the government,
that the authors of them have very little considered how far these
powers were necessary means of attaining a necessary end. They have
chosen rather to dwell on the inconveniences which must be
unavoidably blended with all political advantages; and on the
possible abuses which must be incident to every power or trust, of
which a beneficial use can be made. This method of handling the
subject cannot impose on the good sense of the people of America. It
may display the subtlety of the writer; it may open a boundless
field for rhetoric and declamation; it may inflame the passions of
the unthinking, and may confirm the prejudices of the misthinking:
but cool and candid people will at once reflect, that the purest of
human blessings must have a portion of alloy in them; that the
choice must always be made, if not of the lesser evil, at least of
the GREATER, not the PERFECT, good; and that in every political
institution, a power to advance the public happiness involves a
discretion which may be misapplied and abused. They will see,
therefore, that in all cases where power is to be conferred, the
point first to be decided is, whether such a power be necessary to
the public good; as the next will be, in case of an affirmative
decision, to guard as effectually as possible against a perversion
of the power to the public detriment.
That we may form a correct judgment on this subject, it will be
proper to review the several powers conferred on the government of
the Union; and that this may be the more conveniently done they may
be reduced into different classes as they relate to the following
different objects: 1. Security against foreign danger; 2. Regulation
of the intercourse with foreign nations; 3. Maintenance of harmony
and proper intercourse among the States; 4. Certain miscellaneous
objects of general utility; 5. Restraint of the States from certain
injurious acts; 6. Provisions for giving due efficacy to all these
powers.
The powers falling within the first class are those of declaring war
and granting letters of marque; of providing armies and fleets; of
regulating and calling forth the militia; of levying and borrowing
money.
Security against foreign danger is one of the primitive objects of
civil society. It is an avowed and essential object of the American
Union. The powers requisite for attaining it must be effectually
confided to the federal councils.
Is the power of declaring war necessary? No man will answer this
question in the negative. It would be superfluous, therefore, to
enter into a proof of the affirmative. The existing Confederation
establishes this power in the most ample form.
Is the power of raising armies and equipping fleets necessary? This
is involved in the foregoing power. It is involved in the power of
self-defence.
But was it necessary to give an INDEFINITE POWER of raising TROOPS,
as well as providing fleets; and of maintaining both in PEACE, as
well as in war?
The answer to these questions has been too far anticipated in
another place to admit an extensive discussion of them in this
place. The answer indeed seems to be so obvious and conclusive as
scarcely to justify such a discussion in any place. With what color
of propriety could the force necessary for defence be limited by
those who cannot limit the force of offence? If a federal
Constitution could chain the ambition or set bounds to the exertions
of all other nations, then indeed might it prudently chain the
discretion of its own government, and set bounds to the exertions
for its own safety.
How could a readiness for war in time of peace of safely prohibited,
unless we could prohibit, in like manner, the preparations and
establishments of every hostile nation? The means of security can
only be regulated by the means and the danger of attack. They will,
in fact, be ever determined by these rules, and by no others. It is
in vain to oppose constitutional barriers to the impulse of
self-preservation. It is worse than in vain; because it plants in
the Constitution itself necessary usurpations of power, every
precedent of which is a germ of necessary and multiplied
repetitions. If one nation maintains constantly a disciplined army,
ready for the service of ambition or revenge, it obliges the most
pacific nations who may be within the reach of its enterprises to
take corresponding precautions. The fifteenth century was the
unhappy epoch of military establishments in the time of peace. They
were introduced by Charles VII. of France. All Europe has followed,
or been forced into, the example. Had the example not been followed
by other nations, all Europe must long ago have worn the chains of a
universal monarch. Were every nation except France now to disband
its peace establishments, the same event might follow. The veteran
legions of Rome were an overmatch for the undisciplined valor of all
other nations, and rendered her the mistress of the world.
Not the less true is it, that the liberties of Rome proved the final
victim to her military triumphs; and that the liberties of Europe,
as far as they every existed, have, with few exceptions, been the
price of her military establishments. A standing force, therefore,
is a dangerous, at the same time that it may be a necessary,
provision. On the smallest scale it has its inconveniences. On an
extensive scale its consequences may be fatal. On any scale it is an
object of laudable circumspection and precautions. A wise nation
will combine all these considerations; and, whilst it does not
rashly preclude itself from any resource which may become essential
to its safety, will exert all its prudence in diminishing both the
necessity and the danger of resorting to one which may be
inauspicious to its liberties.
The clearest marks of this prudence are stamped on the proposed
Constitution. The Union itself, which it cements and secures,
destroys every pretext for a military establishment which could be
dangerous. America united, with a handful of troops, or without a
single soldier, exhibits a more forbidding posture to foreign
ambition than American disunited, with a hundred thousand veterans
ready for combat. It was remarked, on a former occasion, that the
want of this pretext had saved the liberties of one nation in
Europe. Being rendered by her insular situation and her maritime
resources impregnable to the armies of her neighbors, the rulers of
Great Britain have never been able, by real or artificial dangers,
to cheat the public into an extensive peace establishment. The
distance of the United States from the powerful nations of the world
gives them the same happy security.
A dangerous establishment can never be necessary or plausible, so
long as they continue a united people. But let it never, for a
moment, be forgotten that they are indebted for this advantage to
the Union alone. The moment of its dissolution will be the date of a
new order of things. The fears of the weaker, or the ambition of the
stronger States, or Confederacies, will set the same example in the
New, as Charles VII. did in the Old World. The example will be
followed here from the same motives which produced universal
imitation there. Instead of deriving from our situation the precious
advantage which Great Britain has derived from hers, the face of
America will be but a copy of that of the continent of Europe. It
will present liberty everywhere crushed between standing armies and
perpetual taxes. The fortunes of disunited America will be even more
disastrous than those of Europe. The sources of evil in the latter
are confined to her own limits. No superior powers of another
quarter of the globe intrigue among her rival nations, inflame their
mutual animosities, and render them the instruments of foreign
ambition, jealousy, and revenge. In America the miseries springing
from her internal jealousies, contentions, and wars, would form a
part only of her lot. A plentiful addition of evils would have their
source in that relation in which Europe stands to this quarter of
the earth, and which no other quarter of the earth bears to Europe.
This picture of the consequences of disunion cannot be too highly
colored, or too often exhibited. Every man who loves peace, every
man who loves his country, every man who loves liberty, ought to
have it ever before his eyes, that he may cherish in his heart a due
attachment to the Union of America, and be able to set a due value
on the means of preserving it.
Next to the effectual establishment of the Union, the best possible
precaution against danger from standing armies is a limitation of
the term for which revenue may be appropriated to their support.
This precaution the Constitution has prudently added. I will not
repeat here the observations which I flatter myself have placed this
subject in a just and satisfactory light. But it may not be improper
to take notice of an argument against this part of the Constitution,
which has been drawn from the policy and practice of Great Britain.
It is said that the continuance of an army in that kingdom requires
an annual vote of the legislature; whereas the American Constitution
has lengthened this critical period to two years. This is the form
in which the comparison is usually stated to the public: but is it a
just form? Is it a fair comparison? Does the British Constitution
restrain the parliamentary discretion to one year? Does the American
impose on the Congress appropriations for two years? On the
contrary, it cannot be unknown to the authors of the fallacy
themselves, that the British Constitution fixes no limit whatever to
the discretion of the legislature, and that the American ties down
the legislature to two years, as the longest admissible term.
Had the argument from the British example been truly stated, it
would have stood thus: The term for which supplies may be
appropriated to the army establishment, though unlimited by the
British Constitution, has nevertheless, in practice, been limited by
parliamentary discretion to a single year. Now, if in Great Britain,
where the House of commons is elected for seven years; where so
great a proportion of the members are elected by so small a
proportion of the people; where the electors are so corrupted by the
representatives, and the representatives so corrupted by the Crown,
the representative body can possess a power to make appropriations
to the army for an indefinite term, without desiring, or without
daring, to extend the term beyond a single year, ought not suspicion
herself to blush, in pretending that the representatives of the
United States, elected FREELY by the WHOLE BODY of the people, every
SECOND YEAR, cannot be safely intrusted with the discretion over
such appropriations, expressly limited to the short period of TWO
YEARS?
A bad cause seldom fails to betray itself. Of this truth, the
management of the opposition to the federal government is an
unvaried exemplification. But among all the blunders which have been
committed, none is more striking than the attempt to enlist on that
side the prudent jealousy entertained by the people, of standing
armies. The attempt has awakened fully the public attention to that
important subject; and has led to investigations which must
terminate in a thorough and universal conviction, not only that the
Constitution has provided the most effectual guards against danger
from that quarter, but that nothing short of a Constitution fully
adequate to the national defence and the preservation of the Union,
can save America from as many standing armies as it may be split
into States or Confederacies, and from such a progressive
augmentation, of these establishments in each, as will render them
as burdensome to the properties and ominous to the liberties of the
people, as any establishment that can become necessary, under a
united and efficient government, must be tolerable to the former and
safe to the latter.
The palpable necessity of the power to provide and maintain a navy
has protected that part of the Constitution against a spirit of
censure, which has spared few other parts. It must, indeed, be
numbered among the greatest blessings of America, that as her Union
will be the only source of her maritime strength, so this will be a
principal source of her security against danger from abroad. In this
respect our situation bears another likeness to the insular
advantage of Great Britain. The batteries most capable of repelling
foreign enterprises on our safety, are happily such as can never be
turned by a perfidious government against our liberties.
The inhabitants of the Atlantic frontier are all of them deeply
interested in this provision for naval protection, and if they have
hitherto been suffered to sleep quietly in their beds; if their
property has remained safe against the predatory spirit of
licentious adventurers; if their maritime towns have not yet been
compelled to ransom themselves from the terrors of a conflagration,
by yielding to the exactions of daring and sudden invaders, these
instances of good fortune are not to be ascribed to the capacity of
the existing government for the protection of those from whom it
claims allegiance, but to causes that are fugitive and fallacious.
If we except perhaps Virginia and Maryland, which are peculiarly
vulnerable on their eastern frontiers, no part of the Union ought to
feel more anxiety on this subject than New York. Her sea-coast is
extensive. A very important district of the State is an island. The
State itself is penetrated by a large navigable river for more than
fifty leagues. The great emporium of its commerce, the great
reservoir of its wealth, lies every moment at the mercy of events,
and may almost be regarded as a hostage for ignominious compliances
with the dictates of a foreign enemy, or even with the rapacious
demands of pirates and barbarians. Should a war be the result of the
precarious situation of European affairs, and all the unruly
passions attending it be let loose on the ocean, our escape from
insults and depredations, not only on that element, but every part
of the other bordering on it, will be truly miraculous. In the
present condition of America, the States more immediately exposed to
these calamities have nothing to hope from the phantom of a general
government which now exists; and if their single resources were
equal to the task of fortifying themselves against the danger, the
object to be protected would be almost consumed by the means of
protecting them.
The power of regulating and calling forth the militia has been
already sufficiently vindicated and explained.
The power of levying and borrowing money, being the sinew of that
which is to be exerted in the national defence, is properly thrown
into the same class with it. This power, also, has been examined
already with much attention, and has, I trust, has been clearly
shown to be necessary, both in the extent and form given to it by
the Constitution. I will address one additional reflection only to
those who contend that the power ought to have been restrained to
external taxation--by which they mean, taxes on articles imported
from other countries. It cannot be doubted that this will always be
a valuable source of revenue; that for a considerable time it must
be a principal source; that at this moment it is an essential one.
But we may form very mistaken ideas on this subject, if we do not
call to mind in our calculations, that the extent of revenue drawn
from foreign commerce must vary with the variations, both in the
extent and the kind of imports; and that these variations do not
correspond with the progress of population, which must be the
general measure of the public wants. As long as agriculture
continues the sole field of labor, the importation of manufactures
must increase as the consumers multiply. As soon as domestic
manufactures are begun by the hands not called for by agriculture,
the imported manufactures will decrease as the numbers of people
increase. In a more remote stage, the imports may consist in a
considerable part of raw materials, which will be wrought into
articles for exportation, and will, therefore, require rather the
encouragement of bounties, than to be loaded with discouraging
duties. A system of government, meant for duration, ought to
contemplate these revolutions, and be able to accommodate itself to
them.
Some, who have not denied the necessity of the power of taxation,
have grounded a very fierce attack against the Constitution, on the
language in which it is defined. It has been urged and echoed, that
the power "to lay and collect taxes, duties, imposts, and excises,
to pay the debts, and provide for the common defence and general
welfare of the United States," amounts to an unlimited commission to
exercise every power which may be alleged to be necessary for the
common defence or general welfare. No stronger proof could be given
of the distress under which these writers labor for objections, than
their stooping to such a misconstruction.
Had no other enumeration or definition of the powers of the Congress
been found in the Constitution, than the general expressions just
cited, the authors of the objection might have had some color for
it; though it would have been difficult to find a reason for so
awkward a form of describing an authority to legislate in all
possible cases. A power to destroy the freedom of the press, the
trial by jury; or even to regulate the course of descents, or the
forms of conveyances, must be very singularly expressed by the terms
"to raise money for the general welfare."
But what color can the objection have, when a specification of the
objects alluded to by these general terms immediately follows, and
is not even separated by a longer pause than a semicolon? If the
different parts of the same instrument ought to be so expounded, as
to give meaning to every part which will bear it, shall one part of
the same sentence be excluded altogether from a share in the
meaning; and shall the more doubtful and indefinite terms be
retained in their full extent, and the clear and precise expressions
be denied by signification whatsoever? For what purpose could the
enumeration of particular powers be inserted, if these and all
others were meant to be included in the preceding general power?
Nothing is more natural nor common than first to use a general
phrase, and then to explain and qualify it by a recital of
particulars. But the idea of an enumeration of particulars which
neither explain nor qualify the general meaning, and can have no
other effect than to confound and mislead, is an absurdity, which,
as we are reduced to the dilemma of charging either on the authors
of the objection or on the authors of the Constitution, we must take
the liberty of supposing, had not its origin with the latter.
The objection here is the more extraordinary, as it appears that the
language used by the convention is a copy from the articles of
Confederation. The objects of the Union among the States, as
described in article third, are, "their common defence, security of
their liberties, and mutual and general welfare." The terms of
article eighth are still more identical: "All charges of war and all
other expenses that shall be incurred for the common defence or
general welfare, and allowed by the United States in Congress, shall
be defrayed out of a common treasury," etc. A similar language again
occurs in article ninth. Construe either of these articles by the
rules which would justify the construction put on the new
Constitution, and they vest in the existing Congress a power to
legislate in all cases whatsoever. But what would have been thought
of that assembly, if, attaching themselves to these general
expressions, and disregarding the specifications which ascertain and
limit their import, they had exercised an unlimited power of
providing for the common defence and general welfare? I appeal to
the objectors themselves, whether they would in that case have
employed the same reasoning in justification of Congress as they now
make use of against the convention. How difficult it is for error to
escape its own condemnation!
Signed "PUBLIUS"
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