is supposed to consist in this, that in the former, the pow. ers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the Nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the National, not the Federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the National countenance of the Government on this side seems to be disfigured by a few Foederal features. But this blemish is perhaps unavoidable in any plan; and the operation of the Government on the People, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a National Government.

But if the Government be National with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a National Government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a People consolidated into one Nation, this supremacy is completely vested in the National Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within

its own sphere. In this relation, then, the proposed Government cannot be deemed a National one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true, that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the General Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the General, rather than under the local Governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation, to the authority by which amendments are to be made, we find it neither wholly National, nor wholly Fœderal. Were it wholly National, the supreme and ultimate authority would reside in the majority of the People of the Union; and this authority would be competent at all times, like that of a majority of every National society, to alter or abolish its established Government. Were it wholly Fœderal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the Plan of the Convention is not founded on either of these principles. In requiring more than a majority, and particularly, in computing the proportion by States, not by citizens, it departs from the National, and advances towards the Federal character: in rendering the concurrence of less than the whole

number of States sufficient, it loses again the Federal and partakes of the National character.

The proposed Constitution, therefore, is, in strictness, neither a National nor a Fœderal Constitution, but a composition of both. In its foundation it is Fœderal, not National: in the sources from which the ordinary powers of the Government are drawn, it is partly Fœderal, and partly National: in the operation of these powers, it is National, not Federal: in the extent of them, again, it is Fœderal, not National: and, finally, in the authoritative mode of introducing amendments, it is neither wholly Fœderal nor wholly National.

PUBLIUS.

[From the New York Packet, Friday, January 18, 1788.]

THE FEDERALIST.

No. XXXIX.

TO THE PEOPLE OF THE STATE OF NEW YORK :

THE

HE 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 "appoint"ment 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 effect"ually 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 par"ticularly the State of New York, by express instructions "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 Federal Constitution "adequate to the exigencies of Government and the pres"ervation 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 effected 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