THE FEDERALIST.

NUMBER XL.

NEW YORK, JANUARY 18, 1788.

MADISON.

THE SAME OBJECTION FURTHER EXAMINED.

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 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 2d Monday in 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 goveTRment; 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 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 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 Dower. 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* 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

*Connecticut and Rhode Island.

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.

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