fp38.txt

IT IS not a little remarkable that in every case reported by ancient 
        history, in which government has been established with deliberation and 
        consent, the task of framing it has not been committed to an assembly 
        of men, but has been performed by some individual citizen of preeminent 
        wisdom and approved integrity. Minos, we learn, was the primitive founder of the government of Crete, 
        as Zaleucus was of that of the Locrians. Theseus first, and after him 
        Draco and Solon, instituted the government of Athens. Lycurgus was the 
        lawgiver of Sparta. The foundation of the original government of Rome 
        was laid by Romulus, and the work completed by two of his elective successors, 
        Numa and Tullius Hostilius. On the abolition of royalty the consular administration 
        was substituted by Brutus, who stepped forward with a project for such 
        a reform, which, he alleged, had been prepared by Tullius Hostilius, and 
        to which his address obtained the assent and ratification of the senate 
        and people. This remark is applicable to confederate governments also. 
        Amphictyon, we are told, was the author of that which bore his name. The 
        Achaean league received its first birth from Achaeus, and its second from 
        Aratus. What degree of agency these reputed lawgivers might have in their respective 
        establishments, or how far they might be clothed with the legitimate authority 
        of the people, cannot in every instance be ascertained. In some, however, 
        the proceeding was strictly regular. Draco appears to have been intrusted 
        by the people of Athens with indefinite powers to reform its government 
        and laws. And Solon, according to Plutarch, was in a manner compelled, 
        by the universal suffrage of his fellow-citizens, to take upon him the 
        sole and absolute power of new-modeling the constitution. The proceedings 
        under Lycurgus were less regular; but as far as the advocates for a regular 
        reform could prevail, they all turned their eyes towards the single efforts 
        of that celebrated patriot and sage, instead of seeking to bring about 
        a revolution by the intervention of a deliberative body of citizens. Whence could it have proceeded, that a people, jealous as the Greeks 
        were of their liberty, should so far abandon the rules of caution as to 
        place their destiny in the hands of a single citizen? Whence could it 
        have proceeded, that the Athenians, a people who would not suffer an army 
        to be commanded by fewer than ten generals, and who required no other 
        proof of danger to their liberties than the illustrious merit of a fellow-citizen, 
        should consider one illustrious citizen as a more eligible depositary 
        of the fortunes of themselves and their posterity, than a select body 
        of citizens, from whose common deliberations more wisdom, as well as more 
        safety, might have been expected? These questions cannot be fully answered, 
        without supposing that the fears of discord and disunion among a number 
        of counsellors exceeded the apprehension of treachery or incapacity in 
        a single individual. History informs us, likewise, of the difficulties 
        with which these celebrated reformers had to contend, as well as the expedients 
        which they were obliged to employ in order to carry their reforms into 
        effect. Solon, who seems to have indulged a more temporizing policy, confessed 
        that he had not given to his countrymen the government best suited to 
        their happiness, but most tolerable to their prejudices. And Lycurgus, 
        more true to his object, was under the necessity of mixing a portion of 
        violence with the authority of superstition, and of securing his final 
        success by a voluntary renunciation, first of his country, and then of 
        his life. If these lessons teach us, on one hand, to admire the improvement 
        made by America on the ancient mode of preparing and establishing regular 
        plans of government, they serve not less, on the other, to admonish us 
        of the hazards and difficulties incident to such experiments, and of the 
        great imprudence of unnecessarily multiplying them. Is it an unreasonable conjecture, that the errors which may be contained 
        in the plan of the convention are such as have resulted rather from the 
        defect of antecedent experience on this complicated and difficult subject, 
        than from a want of accuracy or care in the investigation of it; and, 
        consequently such as will not be ascertained until an actual trial shall 
        have pointed them out? This conjecture is rendered probable, not only 
        by many considerations of a general nature, but by the particular case 
        of the Articles of Confederation. It is observable that among the numerous 
        objections and amendments suggested by the several States, when these 
        articles were submitted for their ratification, not one is found which 
        alludes to the great and radical error which on actual trial has discovered 
        itself. And if we except the observations which New Jersey was led to 
        make, rather by her local situation, than by her peculiar foresight, it 
        may be questioned whether a single suggestion was of sufficient moment 
        to justify a revision of the system. There is abundant reason, nevertheless, 
        to suppose that immaterial as these objections were, they would have been 
        adhered to with a very dangerous inflexibility, in some States, had not 
        a zeal for their opinions and supposed interests been stifled by the more 
        powerful sentiment of selfpreservation. One State, we may remember, persisted 
        for several years in refusing her concurrence, although the enemy remained 
        the whole period at our gates, or rather in the very bowels of our country. 
        Nor was her pliancy in the end effected by a less motive, than the fear 
        of being chargeable with protracting the public calamities, and endangering 
        the event of the contest. Every candid reader will make the proper reflections 
        on these important facts. A patient who finds his disorder daily growing worse, and that an efficacious 
        remedy can no longer be delayed without extreme danger, after coolly revolving 
        his situation, and the characters of different physicians, selects and 
        calls in such of them as he judges most capable of administering relief, 
        and best entitled to his confidence. The physicians attend; the case of 
        the patient is carefully examined; a consultation is held; they are unanimously 
        agreed that the symptoms are critical, but that the case, with proper 
        and timely relief, is so far from being desperate, that it may be made 
        to issue in an improvement of his constitution. They are equally unanimous 
        in prescribing the remedy, by which this happy effect is to be produced. 
        The prescription is no sooner made known, however, than a number of persons 
        interpose, and, without denying the reality or danger of the disorder, 
        assure the patient that the prescription will be poison to his constitution, 
        and forbid him, under pain of certain death, to make use of it. Might 
        not the patient reasonably demand, before he ventured to follow this advice, 
        that the authors of it should at least agree among themselves on some 
        other remedy to be substituted? And if he found them differing as much 
        from one another as from his first counsellors, would he not act prudently 
        in trying the experiment unanimously recommended by the latter, rather 
        than be hearkening to those who could neither deny the necessity of a 
        speedy remedy, nor agree in proposing one? Such a patient and in such a situation is America at this moment. She 
        has been sensible of her malady. She has obtained a regular and unanimous 
        advice from men of her own deliberate choice. And she is warned by others 
        against following this advice under pain of the most fatal consequences. 
        Do the monitors deny the reality of her danger? No. Do they deny the necessity 
        of some speedy and powerful remedy? No. Are they agreed, are any two of 
        them agreed, in their objections to the remedy proposed, or in the proper 
        one to be substituted? Let them speak for themselves. This one tells us 
        that the proposed Constitution ought to be rejected, because it is not 
        a confederation of the States, but a government over individuals. Another 
        admits that it ought to be a government over individuals to a certain 
        extent, but by no means to the extent proposed. A third does not object 
        to the government over individuals, or to the extent proposed, but to 
        the want of a bill of rights. A fourth concurs in the absolute necessity 
        of a bill of rights, but contends that it ought to be declaratory, not 
        of the personal rights of individuals, but of the rights reserved to the 
        States in their political capacity. A fifth is of opinion that a bill 
        of rights of any sort would be superfluous and misplaced, and that the 
        plan would be unexceptionable but for the fatal power of regulating the 
        times and places of election. An objector in a large State exclaims loudly 
        against the unreasonable equality of representation in the Senate. An 
        objector in a small State is equally loud against the dangerous inequality 
        in the House of Representatives. From this quarter, we are alarmed with 
        the amazing expense, from the number of persons who are to administer 
        the new government. From another quarter, and sometimes from the same 
        quarter, on another occasion, the cry is that the Congress will be but 
        a shadow of a representation, and that the government would be far less 
        objectionable if the number and the expense were doubled. A patriot in 
        a State that does not import or export, discerns insuperable objections 
        against the power of direct taxation. The patriotic adversary in a State 
        of great exports and imports, is not less dissatisfied that the whole 
        burden of taxes may be thrown on consumption. This politician discovers 
        in the Constitution a direct and irresistible tendency to monarchy; that 
        is equally sure it will end in aristocracy. Another is puzzled to say 
        which of these shapes it will ultimately assume, but sees clearly it must 
        be one or other of them; whilst a fourth is not wanting, who with no less 
        confidence affirms that the Constitution is so far from having a bias 
        towards either of these dangers, that the weight on that side will not 
        be sufficient to keep it upright and firm against its opposite propensities. 
        With another class of adversaries to the Constitution the language is 
        that the legislative, executive, and judiciary departments are intermixed 
        in such a manner as to contradict all the ideas of regular government 
        and all the requisite precautions in favor of liberty. Whilst this objection 
        circulates in vague and general expressions, there are but a few who lend 
        their sanction to it. Let each one come forward with his particular explanation, 
        and scarce any two are exactly agreed upon the subject. In the eyes of 
        one the junction of the Senate with the President in the responsible function 
        of appointing to offices, instead of vesting this executive power in the 
        Executive alone, is the vicious part of the organization. To another, 
        the exclusion of the House of Representatives, whose numbers alone could 
        be a due security against corruption and partiality in the exercise of 
        such a power, is equally obnoxious. With another, the admission of the 
        President into any share of a power which ever must be a dangerous engine 
        in the hands of the executive magistrate, is an unpardonable violation 
        of the maxims of republican jealousy. No part of the arrangement, according 
        to some, is more inadmissible than the trial of impeachments by the Senate, 
        which is alternately a member both of the legislative and executive departments, 
        when this power so evidently belonged to the judiciary department. "We 
        concur fully," reply others, "in the objection to this part of the plan, 
        but we can never agree that a reference of impeachments to the judiciary 
        authority would be an amendment of the error. Our principal dislike to 
        the organization arises from the extensive powers already lodged in that 
        department." Even among the zealous patrons of a council of state the 
        most irreconcilable variance is discovered concerning the mode in which 
        it ought to be constituted. The demand of one gentleman is, that the council 
        should consist of a small number to be appointed by the most numerous 
        branch of the legislature. Another would prefer a larger number, and considers 
        it as a fundamental condition that the appointment should be made by the 
        President himself. As it can give no umbrage to the writers against the plan of the federal 
        Constitution, let us suppose, that as they are the most zealous, so they 
        are also the most sagacious, of those who think the late convention were 
        unequal to the task assigned them, and that a wiser and better plan might 
        and ought to be substituted. Let us further suppose that their country 
        should concur, both in this favorable opinion of their merits, and in 
        their unfavorable opinion of the convention; and should accordingly proceed 
        to form them into a second convention, with full powers, and for the express 
        purpose of revising and remoulding the work of the first. Were the experiment 
        to be seriously made, though it required some effort to view it seriously 
        even in fiction, I leave it to be decided by the sample of opinions just 
        exhibited, whether, with all their enmity to their predecessors, they 
        would, in any one point, depart so widely from their example, as in the 
        discord and ferment that would mark their own deliberations; and whether 
        the Constitution, now before the public, would not stand as fair a chance 
        for immortality, as Lycurgus gave to that of Sparta, by making its change 
        to depend on his own return from exile and death, if it were to be immediately 
        adopted, and were to continue in force, not until a BETTER, but until 
        ANOTHER should be agreed upon by this new assembly of lawgivers. It is a matter both of wonder and regret, that those who raise so many 
        objections against the new Constitution should never call to mind the 
        defects of that which is to be exchanged for it. It is not necessary that 
        the former should be perfect; it is sufficient that the latter is more 
        imperfect. No man would refuse to give brass for silver or gold, because 
        the latter had some alloy in it. No man would refuse to quit a shattered 
        and tottering habitation for a firm and commodious building, because the 
        latter had not a porch to it, or because some of the rooms might be a 
        little larger or smaller, or the ceilings a little higher or lower than 
        his fancy would have planned them. But waiving illustrations of this sort, 
        is it not manifest that most of the capital objections urged against the 
        new system lie with tenfold weight against the existing Confederation? 
        Is an indefinite power to raise money dangerous in the hands of the federal 
        government? The present Congress can make requisitions to any amount they 
        please, and the States are constitutionally bound to furnish them; they 
        can emit bills of credit as long as they will pay for the paper; they 
        can borrow, both abroad and at home, as long as a shilling will be lent. 
        Is an indefinite power to raise troops dangerous? The Confederation gives 
        to Congress that power also; and they have already begun to make use of 
        it. Is it improper and unsafe to intermix the different powers of government 
        in the same body of men? Congress, a single body of men, are the sole 
        depositary of all the federal powers. Is it particularly dangerous to 
        give the keys of the treasury, and the command of the army, into the same 
        hands? The Confederation places them both in the hands of Congress. Is 
        a bill of rights essential to liberty? The Confederation has no bill of 
        rights. Is it an objection against the new Constitution, that it empowers 
        the Senate, with the concurrence of the Executive, to make treaties which 
        are to be the laws of the land? The existing Congress, without any such 
        control, can make treaties which they themselves have declared, and most 
        of the States have recognized, to be the supreme law of the land. Is the 
        importation of slaves permitted by the new Constitution for twenty years? 
        By the old it is permitted forever. I shall be told, that however dangerous this mixture of powers may be 
        in theory, it is rendered harmless by the dependence of Congress on the 
        State for the means of carrying them into practice; that however large 
        the mass of powers may be, it is in fact a lifeless mass. Then, say I, 
        in the first place, that the Confederation is chargeable with the still 
        greater folly of declaring certain powers in the federal government to 
        be absolutely necessary, and at the same time rendering them absolutely 
        nugatory; and, in the next place, that if the Union is to continue, and 
        no better government be substituted, effective powers must either be granted 
        to, or assumed by, the existing Congress; in either of which events, the 
        contrast just stated will hold good. But this is not all. Out of this 
        lifeless mass has already grown an excrescent power, which tends to realize 
        all the dangers that can be apprehended from a defective construction 
        of the supreme government of the Union. It is now no longer a point of 
        speculation and hope, that the Western territory is a mine of vast wealth 
        to the United States; and although it is not of such a nature as to extricate 
        them from their present distresses, or for some time to come, to yield 
        any regular supplies for the public expenses, yet must it hereafter be 
        able, under proper management, both to effect a gradual discharge of the 
        domestic debt, and to furnish, for a certain period, liberal tributes 
        to the federal treasury. A very large proportion of this fund has been 
        already surrendered by individual States; and it may with reason be expected 
        that the remaining States will not persist in withholding similar proofs 
        of their equity and generosity. We may calculate, therefore, that a rich 
        and fertile country, of an area equal to the inhabited extent of the United 
        States, will soon become a national stock. Congress have assumed the administration 
        of this stock. They have begun to render it productive. Congress have 
        undertaken to do more: they have proceeded to form new States, to erect 
        temporary governments, to appoint officers for them, and to prescribe 
        the conditions on which such States shall be admitted into the Confederacy. 
        All this has been done; and done without the least color of constitutional 
        authority. Yet no blame has been whispered; no alarm has been sounded. 
        A GREAT and INDEPENDENT fund of revenue is passing into the hands of a 
        SINGLE BODY of men, who can RAISE TROOPS to an INDEFINITE NUMBER, and 
        appropriate money to their support for an INDEFINITE PERIOD OF TIME. And 
        yet there are men, who have not only been silent spectators of this prospect, 
        but who are advocates for the system which exhibits it; and, at the same 
        time, urge against the new system the objections which we have heard. 
        Would they not act with more consistency, in urging the establishment 
        of the latter, as no less necessary to guard the Union against the future 
        powers and resources of a body constructed like the existing Congress, 
        than to save it from the dangers threatened by the present impotency of 
        that Assembly? I mean not, by any thing here said, to throw censure on the measures 
        which have been pursued by Congress. I am sensible they could not have 
        done otherwise. The public interest, the necessity of the case, imposed 
        upon them the task of overleaping their constitutional limits. But is 
        not the fact an alarming proof of the danger resulting from a government 
        which does not possess regular powers commensurate to its objects? A dissolution 
        or usurpation is the dreadful dilemma to which it is continually exposed.