fp40.txt

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; 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 affected 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 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 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 [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-marshal 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 admitted 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 have 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," 
        [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, 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 this assembly? Or if there be a man whose 
        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 assume; 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.