1787 Federalist 40 · Founding Made Plain

11787 Federalist No. 40

2The Powers of the Convention

3to Form a Mixed Government

4Examined and Sustained

5From the New York Packet.

6Friday, January 18, 1788.

7MADISON

8To the People of the State of New York:

9THE SECOND point to be examined is,

10 whether the convention were authorized

11 to frame and propose this mixed Constitution.

12The powers of the convention ought, in strictness,

13 to be determined by an inspection

14 of the commissions given to the members

15 by their respective constituents.

16As all of these, however, had reference,

17 either to the recommendation

18 from the meeting at Annapolis,

19 in September, 1786,

20 or to that from Congress, in February, 1787,

21 it will be sufficient to recur

22 to these particular acts.

23The act from Annapolis recommends the

24 "appointment of commissioners

25 to take into consideration

26 the situation of the United States;

27 to devise SUCH FURTHER PROVISIONS

28 as shall appear to them necessary

29 to render the Constitution

30 of the federal government

31 ADEQUATE TO THE EXIGENCIES OF THE UNION;

32 and to report such an act for that purpose,

33 to the United States in Congress assembled,

34 as when agreed to by them,

35 and afterwards confirmed

36 by the legislature of every State,

37 will effectually provide for the same."

38The recommendatory act of Congress

39 is in the words following:

40"WHEREAS, There is provision

41 in the articles of Confederation

42 and perpetual Union,

43 for making alterations therein,

44 by the assent of a Congress

45 of the United States,

46 and of the legislatures of the several States;

47 and whereas experience hath evinced,

48 that there are defects

49 in the present Confederation;

50 as a mean to remedy which,

51 several of the States,

52 and PARTICULARLY THE STATE OF NEW YORK,

53 by express instructions

54 to their delegates in Congress,

55 have suggested a convention

56 for the purposes expressed

57 in the following resolution;

58 and such convention appearing to be

59 the most probable mean

60 of establishing in these States

61 A FIRM NATIONAL GOVERNMENT:

62"Resolved, That in the opinion of Congress

63 it is expedient,

64 that on the second Monday of May next

65 a convention of delegates,

66 who shall have been appointed

67 by the several States,

68 be held at Philadelphia,

69 for the sole and express purpose

70 OF REVISING THE ARTICLES OF CONFEDERATION,

71 and reporting to Congress

72 and the several legislatures

73 such ALTERATIONS AND PROVISIONS THEREIN,

74 as shall, when agreed to in Congress,

75 and confirmed by the States,

76 render the federal Constitution

77 ADEQUATE TO THE EXIGENCIES OF GOVERNMENT

78 AND THE PRESERVATION OF THE UNION."

79From these two acts, it appears,

80 1st, that the object of the convention

81 was to establish, in these States,

82 A FIRM NATIONAL GOVERNMENT;

83 2d, that this government was to be such

84 as would be ADEQUATE TO THE EXIGENCIES

85 OF GOVERNMENT and THE PRESERVATION OF THE UNION;

86 3d, that these purposes were to be effected

87 by ALTERATIONS AND PROVISIONS

88 IN THE ARTICLES OF CONFEDERATION,

89 as it is expressed in the act of Congress,

90 or by SUCH FURTHER PROVISIONS

91 AS SHOULD APPEAR NECESSARY,

92 as it stands in the recommendatory act

93 from Annapolis;

94 4th, that the alterations and provisions

95 were to be reported to Congress, and to the States,

96 in order to be agreed to by the former

97 and confirmed by the latter.

98From a comparison and fair construction

99 of these several modes of expression,

100 is to be deduced the authority

101 under which the convention acted.

102They were to frame a NATIONAL GOVERNMENT,

103 adequate to the EXIGENCIES OF GOVERNMENT,

104 and OF THE UNION;

105 and to reduce the articles of Confederation

106 into such form as to accomplish these purposes.

107There are two rules of construction,

108 dictated by plain reason,

109 as well as founded on legal axioms.

110The one is, that every part of the expression

111 ought, if possible, to be allowed some meaning,

112 and be made to conspire to some common end.

113The other is,

114 that where the several parts

115 cannot be made to coincide,

116 the less important should give way

117 to the more important part;

118 the means should be sacrificed to the end,

119 rather than the end to the means.

120Suppose, then, that the expressions

121 defining the authority of the convention

122 were irreconcilably at variance with each other;

123 that a NATIONAL and ADEQUATE GOVERNMENT

124 could not possibly,

125 in the judgment of the convention,

126 be affected by ALTERATIONS and PROVISIONS

127 in the ARTICLES OF CONFEDERATION;

128 which part of the definition

129 ought to have been embraced,

130 and which rejected?

131Which was the more important,

132 which the less important part?

133Which the end; which the means?

134Let the most scrupulous expositors of delegated powers;

135 let the most inveterate objectors

136 against those exercised by the convention,

137 answer these questions.

138Let them declare,

139 whether it was of most importance

140 to the happiness of the people of America,

141 that the articles of Confederation

142 should be disregarded,

143 and an adequate government be provided,

144 and the Union preserved;

145 or that an adequate government should be omitted,

146 and the articles of Confederation preserved.

147Let them declare,

148 whether the preservation of these articles

149 was the end,

150 for securing which a reform of the government

151 was to be introduced as the means;

152 or whether the establishment of a government,

153 adequate to the national happiness,

154 was the end at which these articles themselves

155 originally aimed,

156 and to which they ought, as insufficient means,

157 to have been sacrificed.

158But is it necessary to suppose

159 that these expressions are absolutely irreconcilable

160 to each other;

161 that no ALTERATIONS or PROVISIONS

162 in THE ARTICLES OF THE CONFEDERATION

163 could possibly mould them

164 into a national and adequate government;

165 into such a government

166 as has been proposed by the convention?

167No stress, it is presumed, will, in this case,

168 be laid on the TITLE;

169 a change of that could never be deemed

170 an exercise of ungranted power.

171ALTERATIONS in the body of the instrument

172 are expressly authorized.

173NEW PROVISIONS therein are also expressly authorized.

174Here then is a power to change the title;

175 to insert new articles; to alter old ones.

176Must it of necessity be admitted

177 that this power is infringed,

178 so long as a part of the old articles remain?

179Those who maintain the affirmative

180 ought at least to mark the boundary

181 between authorized and usurped innovations;

182 between that degree of change

183 which lies within the compass

184 of ALTERATIONS AND FURTHER PROVISIONS,

185 and that which amounts

186 to a TRANSMUTATION of the government.

187Will it be said

188 that the alterations ought not to have touched

189 the substance of the Confederation?

190The States would never have appointed a convention

191 with so much solemnity,

192 nor described its objects with so much latitude,

193 if some SUBSTANTIAL reform

194 had not been in contemplation.

195Will it be said

196 that the FUNDAMENTAL PRINCIPLES of the Confederation

197 were not within the purview of the convention,

198 and ought not to have been varied?

199I ask, What are these principles?

200Do they require that, in the establishment

201 of the Constitution,

202 the States should be regarded

203 as distinct and independent sovereigns?

204They are so regarded by the Constitution proposed.

205Do they require

206 that the members of the government

207 should derive their appointment

208 from the legislatures,

209 not from the people of the States?

210One branch of the new government

211 is to be appointed by these legislatures;

212 and under the Confederation,

213 the delegates to Congress MAY ALL

214 be appointed immediately by the people,

215 and in two States[1] are actually so appointed.

216Do they require

217 that the powers of the government should act

218 on the States, and not immediately on individuals?

219In some instances, as has been shown,

220 the powers of the new government will act

221 on the States in their collective characters.

222In some instances, also,

223 those of the existing government

224 act immediately on individuals.

225In cases of capture; of piracy; of the post office;

226 of coins, weights, and measures;

227 of trade with the Indians;

228 of claims under grants of land by different States;

229 and, above all,

230 in the case of trials by courts-marshal

231 in the army and navy,

232 by which death may be inflicted

233 without the intervention of a jury,

234 or even of a civil magistrate;

235 in all these cases the powers of the Confederation

236 operate immediately

237 on the persons and interests

238 of individual citizens.

239Do these fundamental principles require, particularly,

240 that no tax should be levied

241 without the intermediate agency of the States?

242The Confederation itself authorizes a direct tax,

243 to a certain extent, on the post office.

244The power of coinage has been so construed by Congress

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

246But pretermitting these instances,

247 was it not an acknowledged object of the convention

248 and the universal expectation of the people,

249 that the regulation of trade

250 should be submitted to the general government

251 in such a form as would render it

252 an immediate source of general revenue?

253Had not Congress repeatedly recommended this measure

254 as not inconsistent with the fundamental principles

255 of the Confederation?

256Had not every State but one;

257 had not New York herself,

258 so far complied with the plan of Congress

259 as to recognize the PRINCIPLE of the innovation?

260Do these principles, in fine, require

261 that the powers of the general government

262 should be limited,

263 and that, beyond this limit,

264 the States should be left in possession

265 of their sovereignty and independence?

266We have seen that in the new government,

267 as in the old, the general powers are limited;

268 and that the States, in all unenumerated cases,

269 are left in the enjoyment

270 of their sovereign and independent jurisdiction.

271The truth is,

272 that the great principles of the Constitution

273 proposed by the convention

274 may be considered less as absolutely new,

275 than as the expansion of principles

276 which are found in the articles of Confederation.

277The misfortune under the latter system has been,

278 that these principles are so feeble and confined

279 as to justify all the charges of inefficiency

280 which have been urged against it,

281 and to require a degree of enlargement

282 which gives to the new system

283 the aspect of an entire transformation of the old.

284In one particular it is admitted

285 that the convention have departed

286 from the tenor of their commission.

287Instead of reporting a plan

288 requiring the confirmation

289 OF THE LEGISLATURES OF ALL THE STATES,

290 they have reported a plan

291 which is to be confirmed by the PEOPLE,

292 and may be carried into effect

293 by NINE STATES ONLY.

294It is worthy of remark

295 that this objection, though the most plausible,

296 has been the least urged in the publications

297 which have swarmed against the convention.

298The forbearance can only have proceeded

299 from an irresistible conviction of the absurdity

300 of subjecting the fate of twelve States

301 to the perverseness or corruption of a thirteenth;

302 from the example of inflexible opposition

303 given by a MAJORITY of one sixtieth

304 of the people of America

305 to a measure approved and called for

306 by the voice of twelve States,

307 comprising fifty-nine sixtieths of the people

308 an example still fresh

309 in the memory and indignation of every citizen

310 who has felt for the wounded honor

311 and prosperity of his country.

312As this objection, therefore,

313 has been in a manner waived

314 by those who have criticised

315 the powers of the convention,

316 I dismiss it without further observation.

317The THIRD point to be inquired into is,

318 how far considerations of duty

319 arising out of the case itself

320 could have supplied any defect

321 of regular authority.

322In the preceding inquiries

323 the powers of the convention

324 have been analyzed and tried with the same rigor,

325 and by the same rules,

326 as if they had been real and final powers

327 for the establishment of a Constitution

328 for the United States.

329We have seen in what manner they have borne the trial

330 even on that supposition.

331It is time now to recollect

332 that the powers were merely advisory

333 and recommendatory;

334 that they were so meant by the States,

335 and so understood by the convention;

336 and that the latter have accordingly planned

337 and proposed a Constitution

338 which is to be of no more consequence

339 than the paper on which it is written,

340 unless it be stamped with the approbation

341 of those to whom it is addressed.

342This reflection places the subject

343 in a point of view altogether different,

344 and will enable us to judge with propriety

345 of the course taken by the convention.

346Let us view the ground on which the convention stood.

347It may be collected from their proceedings,

348 that they were deeply and unanimously impressed

349 with the crisis,

350 which had led their country almost with one voice

351 to make so singular and solemn an experiment

352 for correcting the errors of a system

353 by which this crisis had been produced;

354 that they were no less deeply and unanimously convinced

355 that such a reform as they have proposed

356 was absolutely necessary

357 to effect the purposes of their appointment.

358It could not be unknown to them

359 that the hopes and expectations

360 of the great body of citizens,

361 throughout this great empire,

362 were turned with the keenest anxiety

363 to the event of their deliberations.

364They had every reason to believe

365 that the contrary sentiments agitated

366 the minds and bosoms

367 of every external and internal foe

368 to the liberty and prosperity

369 of the United States.

370They had seen in the origin and progress

371 of the experiment,

372 the alacrity with which the PROPOSITION,

373 made by a single State (Virginia),

374 towards a partial amendment of the Confederation,

375 had been attended to and promoted.

376They had seen the LIBERTY ASSUMED

377 by a VERY FEW deputies from a VERY FEW States,

378 convened at Annapolis,

379 of recommending a great and critical object,

380 wholly foreign to their commission,

381 not only justified by the public opinion,

382 but actually carried into effect

383 by twelve out of the thirteen States.

384They had seen, in a variety of instances,

385 assumptions by Congress,

386 not only of recommendatory,

387 but of operative, powers,

388 warranted, in the public estimation,

389 by occasions and objects

390 infinitely less urgent

391 than those by which their conduct

392 was to be governed.

393They must have reflected,

394 that in all great changes of established governments,

395 forms ought to give way to substance;

396 that a rigid adherence in such cases to the former,

397 would render nominal and nugatory

398 the transcendent and precious right of the people

399 to "abolish or alter their governments

400 as to them shall seem most likely

401 to effect their safety and happiness,"[2]

402 since it is impossible for the people

403 spontaneously and universally

404 to move in concert towards their object;

405 and it is therefore essential

406 that such changes be instituted

407 by some INFORMAL AND UNAUTHORIZED PROPOSITIONS,

408 made by some patriotic and respectable citizen

409 or number of citizens.

410They must have recollected

411 that it was by this irregular and assumed privilege

412 of proposing to the people

413 plans for their safety and happiness,

414 that the States were first united

415 against the danger

416 with which they were threatened

417 by their ancient government;

418 that committees and congresses were formed

419 for concentrating their efforts

420 and defending their rights;

421 and that CONVENTIONS were ELECTED

422 in THE SEVERAL STATES

423 for establishing the constitutions

424 under which they are now governed;

425 nor could it have been forgotten

426 that no little ill-timed scruples,

427 no zeal for adhering to ordinary forms,

428 were anywhere seen,

429 except in those who wished to indulge,

430 under these masks,

431 their secret enmity

432 to the substance contended for.

433They must have borne in mind,

434 that as the plan to be framed and proposed

435 was to be submitted TO THE PEOPLE THEMSELVES,

436 the disapprobation of this supreme authority

437 would destroy it forever;

438 its approbation blot out

439 antecedent errors and irregularities.

440It might even have occurred to them,

441 that where a disposition to cavil prevailed,

442 their neglect to execute the degree of power

443 vested in them,

444 and still more their recommendation

445 of any measure whatever,

446 not warranted by their commission,

447 would not less excite animadversion,

448 than a recommendation at once of a measure

449 fully commensurate to the national exigencies.

450Had the convention, under all these impressions,

451 and in the midst of all these considerations,

452 instead of exercising a manly confidence

453 in their country,

454 by whose confidence they had been

455 so peculiarly distinguished,

456 and of pointing out a system capable,

457 in their judgment, of securing its happiness,

458 taken the cold and sullen resolution

459 of disappointing its ardent hopes,

460 of sacrificing substance to forms,

461 of committing the dearest interests

462 of their country

463 to the uncertainties of delay

464 and the hazard of events,

465 let me ask the man

466 who can raise his mind

467 to one elevated conception,

468 who can awaken in his bosom

469 one patriotic emotion,

470 what judgment ought to have been pronounced

471 by the impartial world,

472 by the friends of mankind,

473 by every virtuous citizen,

474 on the conduct and character of this assembly?

475Or if there be a man

476 whose propensity to condemn

477 is susceptible of no control,

478 let me then ask what sentence he has in reserve

479 for the twelve States

480 who USURPED THE POWER

481 of sending deputies to the convention,

482 a body utterly unknown to their constitutions;

483 for Congress, who recommended the appointment

484 of this body, equally unknown

485 to the Confederation;

486 and for the State of New York, in particular,

487 which first urged and then complied

488 with this unauthorized interposition?

489But that the objectors may be disarmed

490 of every pretext,

491 it shall be granted for a moment

492 that the convention were neither authorized

493 by their commission,

494 nor justified by circumstances

495 in proposing a Constitution for their country:

496 does it follow that the Constitution ought,

497 for that reason alone, to be rejected?

498If, according to the noble precept,

499 it be lawful to accept good advice

500 even from an enemy,

501 shall we set the ignoble example

502 of refusing such advice

503 even when it is offered by our friends?

504The prudent inquiry, in all cases, ought surely to be,

505 not so much FROM WHOM the advice comes,

506 as whether the advice be GOOD.

507The sum of what has been here advanced and proved is,

508 that the charge against the convention

509 of exceeding their powers,

510 except in one instance little urged

511 by the objectors,

512 has no foundation to support it;

513 that if they had exceeded their powers,

514 they were not only warranted, but required,

515 as the confidential servants of their country,

516 by the circumstances in which they were placed,

517 to exercise the liberty which they assume;

518 and that finally,

519 if they had violated both their powers

520 and their obligations,

521 in proposing a Constitution,

522 this ought nevertheless to be embraced,

523 if it be calculated to accomplish

524 the views and happiness

525 of the people of America.

526How far this character is due to the Constitution,

527 is the subject under investigation.

528PUBLIUS.

529[1] In the commissions from Connecticut

530 and Rhode Island.

531[2] Declaration of Independence.