FEDERALIST No. 40

The Powers of the Convention to Form a Mixed Government Examined

and Sustained

From the New York Packet.

Friday, January 18, 1788.

MADISON

To the People of the State of New York:

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 notthe 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 States1 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. PUBLIUS.

Connecticut and Rhode Island. Declaration of Independence.