" to their delegates in Congress, have suggested a Con-
" vention 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 of May next a
" Convention of delegates, who shall have been ap-
" pointed 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 con-
" firmed by the States, render the Foederal Constitution
" adequate to the exigencies of Government and the pres-
" ervalion of the Union."
From these two Acts, it appears, 1st, that the object
of the Convention was to establish, in these States, a
%m National Government; 2d, that this Government
was to be such as would be adequate to the exigencies
268 The Faederalist.
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 Con-
gress, 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 im-
portant 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 au-
thority of the Convention were irreconcilably at vari-
ance 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 defi-
nition ought to have been embraced, and which reject-
ed ? Which was the more important^ which the less
important part ? "Which the end ; which the means ?
Let the most scrupulous expositors of delegated pow-
ers; let the most inveterate objectors against those
The Fasderalist. 269
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 pre-
served ; 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 alter-
ations ot provisions in the Articles of the Confederation,
could possibly mould them into a National and ade-
quate 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 pro-
visions 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 alteratioris 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 Confed-
eration ? The States would never have appointed a
270 The Fcederalist
Convention with so much solemnity, nor described its
objects with so ranch 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 princi-
ples ? 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 appoint-
ment 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 Confed-
eration, the delegates to Congress may all be appoint-
ed immediately by the People, and in two States * are
actually so appointed. Do they require, that the pow-
ers 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 Govern-
ment will act on the States in their collective charac-
ters. In some instances, also, those of the existing Gov-
ernment 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 and
navy, by which death may be inflicted without the in-
tervention 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, par-
ticularly, that no tax should be levied, without the inter-
mediate agency of the States? The Confederation
itself authorizes a direct tax, to a certain extent, on the
* Connecticut and Rhode Island. — Publius.
The FoBderalist. 271
post-office. The power of coinage has been so con- .
strued by Congress as to levy a tribute immediately
from that source also. But pretermitting these in-
stances, was it not an acknowledged object of the Con-
vention, 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 Con-
federation ? 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 innova-
tion? 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 Constitu-
tion 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. In-
stead of reporting a plan requiring the confirmation q/
he Leg-islatures of all the States, they have reported a
plan, which is to be confirmed by the People, and may
272 The Fopderalist.
be carried into effect by nine States only. It is worthy
of remark, that this objection, though the most plausi-
ble, has been the least urged in the publications which
have swarmed against the Convention. The forbear-
ance can only have proceeded from an irresistible con-
viction 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 criti-
cised the powers of the Convention, I dismiss it without
further observation.
The third point to be inquired into is, how far consid-
erations of duty arising out of the case itself could have
supplied any defect of regular authority.
In the preceding inquuies, the powers of the Conven-
tion 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 Con-
stitution, 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 diflerent, and will enable us to judge with
propriety of the course taken by the Convention.
The Feeder alist. 273
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 delibera-
tions. They had every reason to believe, that the con-
trary sentiments agitated the minds and bosoms of
every external and internal foe to the liberty and pros-
perity 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, (Vir-
ginia,) towards a partial amendment of the Confedera-
tion, had been attended to and promoted. They had
seen the liberty assumed by a very few deputies, from a
very feiu States, convened at Annapolis, of recommend-
ing 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, as-
sumptions by Congress, not only of recommendatory
but of operative powers, warranted in the public esti-
mation, 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 v/ay to
substance ; that a rigid adherence in such cases to the
former, would render nominal and nugatory the tran-
scendent and precious right of the People to " abolish or
VOL. I. 18
274 The Fcederalist.
" alter their Governments as to them shall seem most
" likely to affect their safety and happiness," * since it is
impossible for the People spontaneously and universally
to move in concert towards their object ; and it is there-
fore 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 threat-
ened 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 scru-
ples, no zeal for adhering to ordinary forms, were any-
where 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 sub-
mitted to the People themselves^ the disapprobation of
this supreme authority would destroy it forever : its
approbation blot out all antecedent errors and irregular-
ities. 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 war-
ranted by their commission, would not less excite ani-
madversion, than a recommendation at once of a meas-
ure fully commensurate to the National exigencies.
Had the Convention, under all these impressions, and
in the midst of all these considerations, instead of exer-
cising a manly confidence in their country, by whose
* Declaration of Independence. — Publlus.
The Fcederalist. 275
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 res-
olution 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 un-
known to their Constitutions ; for Congress, who recom-
mended the appointment of this body, equally unknown
to the Confederation ; and for the State of New York,
in particular, who first urged and then complied with
this unauthorized interposition ?
But that the objectors may be disarmed of every pre-
text, it shall be granted for a moment, that the Conven-
tion were neither authorized by their commission, nor jus-
tified 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
fiiends ? The prudent inquiry, in all cases, ought surely
to be, not so much from whom the advice comes, as
whether the advice be g-ood.
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
276 The Foederalist.
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 coun-
try, by the circumstances in which they were placed,
to exercise the liberty which they assumed ; and that
finally, if they had violated both their powers and their
obligations, in proposing a Constitution, this ought nev-
ertheless to be embraced, if it be calculated to accom-
plish the views and happiness of the People of America.
How far this character is due to the Constitution, is the
subject under investigation.
PUBLIUS.
For the Independent Journal.
THE FCEDEHALIST. No. XL.
To THE People of the State of New York :
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 re-
straints imposed on the States. The second, to the
particular structure of the Government, and the distri-
bution 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 sev-
eral States?
Is the aggregate power of the General Government
The Federalist 277
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 Httle 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 advan-
tages; and on the possible abuses which must be inci-
dent 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 declama-
tion; 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. w*hich
may be misapplied and abused. They will see, there-
fore, 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. Regula-
278 The Fcederalist.
tion of the intercourse with foreign nations ; 3. Main-
tenance of harmony and proper intercourse among the
States ; 4. Certain miscellaneous objects of general util-
ity ; 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 pro-
viding armies and fleets; of regulating and calling forth
the militia ; of levying and borrowing money.
Security against foreign danger is one of the prim-
itive 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 Foederal councils.
Is the power of declaring war necessary ? No man
will answer this question in the negative. It would
be superflaous, therefore, to enter into a proof of the af-
firmative. 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 an-
ticipated in another place, to admit an extensive discus-
sion 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 lim-
ited by those who cannot limit the force of offence ?
If a Foederal 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
Tlie Foederalist. 279
own Government, and set bounds to the exertions for
its own safety.
How could a readiness for war in time of peace be
safely prohibited, unless we could prohibit, in like man-
ner, 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 oth
ers. 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 neces-
sary usurpations of power, every precedent of which is a
geriri of unnecessary 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 coiTCsponding precautions. The
fifteenth century was the unhappy epoch of military
establishments in 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 ever existed,
have, with few exceptions, been the price of her military
establishments. A standing force, therefore, is a danger-
ous, at the same time that it may be a necessary provi-
sion. On the smallest scale, it has its inconveniences. On
an extensive scale, its consequences may be fatal. On
280 The Fcederalist.
any scale, it is an object of laudable circumspection and
precaution, A wise nation will combine all these con-
siderations ; 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 mili-
tary establishment which could be dangerous. America
united, with a handful of troops, or without a single