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 authorized1 to frame and propose this mixed Constitution.
The powers of the convention ought, in strictness, to be determined2 by an inspection3 of the commissions given to the members by their respective constituents4. 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 recur5 to these particular acts.
The act from Annapolis recommends the "appointment of commissioners6 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 EXIGENCIES7 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 alterations8 therein, by the assent9 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 expedient10, 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 PRESERVATION11 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, dictated12 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 conspire13 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 irreconcilably14 at variance15 with each other; that a NATIONAL and ADEQUATE GOVERNMENT could not possibly, in the judgment16 of the convention, be affected17 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 scrupulous18 expositors of delegated powers; let the most inveterate19 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 insufficient20 means, to have been sacrificed.
But is it necessary to suppose that these expressions are absolutely irreconcilable21 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 infringed22, 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 usurped23 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 latitude24, if some SUBSTANTIAL reform had not been in contemplation. Will it be said that the FUNDAMENTAL PRINCIPLES of the Confederation were not within the purview25 of the convention, and ought not to have been varied26? 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 derive27 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 piracy29; 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 inflicted30 without the intervention31 of a jury, or even of a civil magistrate32; 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 levied33 without the intermediate agency of the States? The Confederation itself authorizes34 a direct tax, to a certain extent, on the post office. The power of coinage has been so construed35 by Congress as to levy36 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 immediate28 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 enjoyment37 of their sovereign and independent jurisdiction38.
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 justify39 all the charges of inefficiency40 which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation41 of the old.
In one particular it is admitted that the convention have departed from the tenor42 of their commission. Instead of reporting a plan requiring the confirmation43 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 worthy44 of remark that this objection, though the most plausible45, has been the least urged in the publications which have swarmed46 against the convention. The forbearance can only have proceeded from an irresistible47 conviction of the absurdity48 of subjecting the fate of twelve States to the perverseness49 or corruption50 of a thirteenth; from the example of inflexible51 opposition52 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 waived53 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 inquiries54 the powers of the convention have been analyzed55 and tried with the same rigor56, 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 recollect57 that the powers were merely advisory58 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 approbation59 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 propriety60 of the course taken by the convention.
Let us view the ground on which the convention stood. It may be collected from their proceedings61, 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 agitated62 the minds and bosoms64 of every external and internal foe65 to the liberty and prosperity of the United States. They had seen in the origin and progress of the experiment, the alacrity66 with which the PROPOSITION, made by a single State (Virginia), towards a partial amendment67 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, convened68 at Annapolis, of recommending a great and critical object, wholly foreign to their commission, not only justified69 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 infinitely70 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 rigid71 adherence72 in such cases to the former, would render nominal73 and nugatory74 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 patriotic75 and respectable citizen or number of citizens. They must have recollected76 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 scruples77, no zeal78 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 supreme79 authority would destroy it forever; its approbation blot80 out antecedent errors and irregularities. It might even have occurred to them, that where a disposition81 to cavil82 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 fully83 commensurate to the national exigencies.
Had the convention, under all these impressions, and in the midst of all these considerations, instead of exercising a manly84 confidence in their country, by whose confidence they had been so peculiarly distinguished85, and of pointing out a system capable, in their judgment, of securing its happiness, taken the cold and sullen86 resolution of disappointing its ardent87 hopes, of sacrificing substance to forms, of committing the dearest interests of their country to the uncertainties88 of delay and the hazard of events, let me ask the man who can raise his mind to one elevated conception, who can awaken89 in his bosom63 one patriotic emotion, what judgment ought to have been pronounced by the impartial90 world, by the friends of mankind, by every virtuous91 citizen, on the conduct and character of this assembly? Or if there be a man whose propensity92 to condemn93 is susceptible94 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 utterly95 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 disarmed96 of every pretext97, 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 precept98, it be lawful99 to accept good advice even from an enemy, shall we set the ignoble100 example of refusing such advice even when it is offered by our friends? The prudent101 inquiry102, 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 confidential103 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 investigation104.
PUBLIUS
1. Connecticut and Rhode Island.
2. Declaration of Independence.
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1
authorized
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| a.委任的，许可的 | |
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determined
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| adj.坚定的；有决心的 | |
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inspection
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| n.检查，审查，检阅 | |
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constituents
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| n.选民( constituent的名词复数 )；成分；构成部分；要素 | |
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recur
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| vi.复发，重现，再发生 | |
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commissioners
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| n.专员( commissioner的名词复数 )；长官；委员；政府部门的长官 | |
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exigencies
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| n.急切需要 | |
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alterations
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| n.改动( alteration的名词复数 )；更改；变化；改变 | |
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assent
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| v.批准，认可；n.批准，认可 | |
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expedient
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| adj.有用的，有利的；n.紧急的办法，权宜之计 | |
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preservation
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| n.保护，维护，保存，保留，保持 | |
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dictated
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| v.大声讲或读( dictate的过去式和过去分词 )；口授；支配；摆布 | |
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conspire
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| v.密谋，（事件等）巧合，共同导致 | |
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irreconcilably
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| （观点、目标或争议）不可调和的，不相容的 | |
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variance
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| n.矛盾，不同 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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affected
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| adj.不自然的，假装的 | |
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scrupulous
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| adj.审慎的，小心翼翼的，完全的，纯粹的 | |
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inveterate
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| adj.积习已深的，根深蒂固的 | |
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insufficient
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| adj.(for，of)不足的，不够的 | |
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irreconcilable
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| adj.（指人）难和解的，势不两立的 | |
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infringed
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| v.违反（规章等）( infringe的过去式和过去分词 )；侵犯（某人的权利）；侵害（某人的自由、权益等） | |
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usurped
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| 篡夺，霸占( usurp的过去式和过去分词 )； 盗用； 篡夺，篡权 | |
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latitude
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| n.纬度，行动或言论的自由(范围)，(pl.)地区 | |
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purview
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| n.范围；眼界 | |
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varied
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| adj.多样的，多变化的 | |
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derive
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| v.取得；导出；引申；来自；源自；出自 | |
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immediate
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| adj.立即的；直接的，最接近的；紧靠的 | |
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piracy
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| n.海盗行为，剽窃，著作权侵害 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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intervention
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| n.介入，干涉，干预 | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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levied
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| 征（兵）( levy的过去式和过去分词 )； 索取； 发动（战争）； 征税 | |
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authorizes
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| 授权，批准，委托( authorize的名词复数 ) | |
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construed
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| v.解释（陈述、行为等）( construe的过去式和过去分词 )；翻译，作句法分析 | |
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levy
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| n.征收税或其他款项，征收额 | |
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enjoyment
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| n.乐趣；享有；享用 | |
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jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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justify
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| vt.证明…正当(或有理)，为…辩护 | |
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inefficiency
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| n.无效率，无能；无效率事例 | |
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transformation
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| n.变化；改造；转变 | |
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tenor
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| n.男高音（歌手），次中音（乐器），要旨，大意 | |
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confirmation
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| n.证实，确认，批准 | |
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worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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plausible
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| adj.似真实的，似乎有理的，似乎可信的 | |
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swarmed
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| 密集( swarm的过去式和过去分词 )； 云集； 成群地移动； 蜜蜂或其他飞行昆虫成群地飞来飞去 | |
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irresistible
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| adj.非常诱人的，无法拒绝的，无法抗拒的 | |
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absurdity
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| n.荒谬，愚蠢；谬论 | |
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perverseness
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| n. 乖张, 倔强, 顽固 | |
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corruption
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| n.腐败，堕落，贪污 | |
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inflexible
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| adj.不可改变的，不受影响的，不屈服的 | |
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opposition
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| n.反对，敌对 | |
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53
waived
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| v.宣布放弃( waive的过去式和过去分词 )；搁置；推迟；放弃（权利、要求等） | |
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inquiries
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| n.调查( inquiry的名词复数 )；疑问；探究；打听 | |
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analyzed
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| v.分析( analyze的过去式和过去分词 )；分解；解释；对…进行心理分析 | |
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rigor
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| n.严酷，严格，严厉 | |
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recollect
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| v.回忆，想起，记起，忆起，记得 | |
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advisory
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| adj.劝告的，忠告的，顾问的，提供咨询 | |
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approbation
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| n.称赞；认可 | |
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propriety
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| n.正当行为；正当；适当 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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agitated
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| adj.被鼓动的，不安的 | |
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bosom
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| n.胸，胸部；胸怀；内心；adj.亲密的 | |
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bosoms
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| 胸部( bosom的名词复数 )； 胸怀； 女衣胸部（或胸襟）； 和爱护自己的人在一起的情形 | |
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foe
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| n.敌人，仇敌 | |
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alacrity
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| n.敏捷，轻快，乐意 | |
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amendment
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| n.改正，修正，改善，修正案 | |
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convened
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| 召开( convene的过去式 )； 召集； （为正式会议而）聚集； 集合 | |
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justified
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| a.正当的，有理的 | |
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infinitely
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| adv.无限地，无穷地 | |
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rigid
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| adj.严格的，死板的；刚硬的，僵硬的 | |
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adherence
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| n.信奉，依附，坚持，固着 | |
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nominal
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| adj.名义上的；(金额、租金)微不足道的 | |
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nugatory
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| adj.琐碎的，无价值的 | |
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patriotic
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| adj.爱国的，有爱国心的 | |
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recollected
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| adj.冷静的；镇定的；被回忆起的；沉思默想的v.记起，想起( recollect的过去式和过去分词 ) | |
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scruples
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| n.良心上的不安( scruple的名词复数 )；顾虑，顾忌v.感到于心不安，有顾忌( scruple的第三人称单数 ) | |
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zeal
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| n.热心，热情，热忱 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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blot
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| vt.弄脏（用吸墨纸）吸干；n.污点，污渍 | |
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disposition
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| n.性情，性格；意向，倾向；排列，部署 | |
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cavil
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| v.挑毛病，吹毛求疵 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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manly
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| adj.有男子气概的；adv.男子般地，果断地 | |
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distinguished
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| adj.卓越的，杰出的，著名的 | |
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sullen
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| adj.愠怒的，闷闷不乐的，(天气等)阴沉的 | |
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ardent
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| adj.热情的，热烈的，强烈的，烈性的 | |
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uncertainties
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| 无把握( uncertainty的名词复数 )； 不确定； 变化不定； 无把握、不确定的事物 | |
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awaken
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| vi.醒，觉醒；vt.唤醒，使觉醒，唤起，激起 | |
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impartial
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| adj.(in,to)公正的，无偏见的 | |
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virtuous
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| adj.有品德的，善良的，贞洁的，有效力的 | |
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propensity
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| n.倾向；习性 | |
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condemn
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| vt.谴责，指责；宣判(罪犯)，判刑 | |
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susceptible
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| adj.过敏的，敏感的；易动感情的，易受感动的 | |
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utterly
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| adv.完全地，绝对地 | |
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disarmed
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| v.裁军( disarm的过去式和过去分词 )；使息怒 | |
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pretext
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| n.借口，托词 | |
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precept
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| n.戒律；格言 | |
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lawful
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| adj.法律许可的，守法的，合法的 | |
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ignoble
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| adj.不光彩的，卑鄙的；可耻的 | |
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101
prudent
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| adj.谨慎的，有远见的，精打细算的 | |
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102
inquiry
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| n.打听，询问，调查，查问 | |
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103
confidential
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| adj.秘（机）密的，表示信任的，担任机密工作的 | |
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investigation
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| n.调查，调查研究 | |
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