FEDERALIST No. 40



On the Powers of the Convention to Form a Mixed Government Examined

and Sustained

For 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 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.



PUBLIUS



1. Connecticut and Rhode Island.



2. Declaration of Independence.