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Thus a very important difficulty arose from comparing the extent of the country to be governed, with the kind of government which it would be proper to establish in it. It has been an opinion, countenanced by high authority, “ that the natural property of small states is to be governed as a republic; of middling ones, to be subject to a monarch ; and of large empires, to be swayed by a despotic prince ; and that the consequence is, that, in order to preserve the principles of the established government, the state must be supported in the extent it has acquired ; and that the spirit of the state will alter in proportion as it extends or contracts its limits *.” This opinion seems to be supported rather than contradicted, by the history of the governments in the old world. Here then the difficulty appeared in full view. On one hand, the United States containing an immenfe extent of territory, according to the foregoing opinion, a despotic government was best adapted to that extent. On the other hand, it was well known, that, however the citizens of the United States might, with pleasure, submit to the legitimate restraints of a republican constitution, they would reject, with indignation, the fetters of despotism. What then was to be done ? The idea of a confederate republic prefented itself. A kind of constitution which has been thought to have “ all the internal advantages of a republican, together with the external force of a monarchical government."
Its description is, “a convention, by which feveral states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of encreasing by means of farther affociation t." The expanding quality of such a government is peculiarly fitted for the United States, the greatest part of whose territory is yet uncultivated.
But while this form of government enabled them to súrmount the difficulty laft mentioned, it conducted them to another. It left them almost without precedent or guide ; and consequently, without the benefit of that instruction, which, in many cases, may be derived from the conftitution, history and experience of other nations. Several affociations have frequently been called by the name of confederate states, which have not, in propriety of language, deserved it. The Swiss Cantons are connected only by alliances. The United Netherlands are indeed an arsemblage of societies; but this assemblage constitutes no new one ; and therefore, it does not correspond with the full definition of a confederate republic. The Germanic body is composed of such disproportioned and
* Montesquieu, b. 8. c. 20.
discordant materials, and its structure is so intricate and complex, that little useful knowledge could be drawn from it. Ancient history difcloses, and barely discloses to our view, some confederate republics—the Achaean league - the Lycian confederacy, and the Amphyctyonic council. But the facts recorded concerning their constitutions are so few and general, and their histories are so unmarked and defective, that no satisfactory information can be collected from them concerning many particular circumstances ; from an accurate discernment and comparison of which alone, legitimate and practical inferences can be made from one conftitution to another. Besides, the situation and dimensions of thofe confederacies, and the state of society, manners and habits in them, were fo different from those of the United States, that the most correct descriptions could have supplied but a very small fund of applicable remarks. Thus, in forming this system, they were deprived of many advantages, which the history and experience of other ages and other countries would, in other cases, have afforded them.
We may add, in this place, that the science of government itself, seems yet to be almost in its state of infancy. Governments, in general, have been the result of force, of frand, and of accident. After a period of fix thousand years has elapsed, since the creation, the United States exhibit to the world, the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, as. sembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government, under which they would wish that they and their pofterity should live. The ancients, so enlightened on other fubjects, were very uninformed with regard to this. They seem scarcely to have had any idea of any other kind of governments, than the three fimple forms, designed by the epithets, monarchial, aristocratical and democratical. Much and pleasing ingenuity has been exerted, in modern times, in drawing entertaining parallels between some of the an. cient conftitutions and some of the mixed governments that have since existed in Europe. But on strict examination, the instances of relemblance will be found to be few and weak; to be fuggested by the improvements, which, in subsequent ages, have been made in government, and not to be drawn immediately from the ancient constitutions themfelves, as they were intended and understood by those who framed them. One thing is very certain, that the doctrine of representation in government was altogether unknown to the ancients. The knowledge and practice of which, is essential to every system, that can possess the quali. ties of freedom, wisdom and energy. '
Representation is the chain of communication between the people, and those, to whom they have committed the exercise of the powers of government. This chain may consist of one or more links; but in all cases it should be fufficiently strong and discernable.
To bé left withcut guide or precedent was not the only difficulty, in which the convention were involved, by proposing to their constituents a plan of a confederate republic. They found themselves embarrassed with another, of peculiar delicacy and importance; I mean that of drawing a proper line between the national government, and the governments of the several states. It was easy to discover a proper and satisfactory principle on the subject. Whatever object of government is confined in its operation and effects within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States; but though this principle is found and satisfactory, its application to particular cases would be accompanied with much difficulty ; because in its application, room must be allowed for great discretionary latitude of construction of the principle. In order to lefsen, or remove the difficulty, arising from discretionary construction on this subject, an enumeration of particular instances, in which the application of the principle ought to take place, has been attempted, with much industry and care. It is only in mathematical science that a line can be described with mathematical precision. But upon the strictest investigation, the enumeration will be found to be safe and unexceptionable ; and accurate too in as great a degree as accuracy can be expected, in a subject of this nature.
After all, it was necessary, that, on a subject fo peculiarly delicate as this, much prudence, much candour, much moderation and much liberality, should be exercised and displayed, both by the federal government and by the governments of the several states. And it is to be hoped, that these virtues will continue to be exercised and displayed, when we consider, that the powers of the federal government and those of the state governments are drawn from sources equally pure. If a difference can be discovered between them, it is in favor of the federal government, because that government is founded on a representation of the whole union; whereas the government of any particular state is founded only on the representation of a part, inconsiderable when compared with the whole. Is it not more reasonable to suppose, that the counsels of the whole will embrace the interest of every part, than that the counsels of any part will embrace the interests of the whole ?
Having enumerated some of the difficulties, which the convention were obliged to encounter in the course of their proceedings, let as view the end, which they proposed to accomplish.
In forming this system, it was proper to give minute attention to the interest of all the parts; but there was a duty of fill higher importto feel and to thew a predominating regard to the superior interests of the whole. If this great principle had not prevailed, the plan before us would never have made its appearance.
The aim of the convention, was to form a system of good and effici. ent government on the more extensive scale of the United States. In this, and in every other instance, the work should be judged with the fame spirit, with which it was performed. A principle of duty as well as candour demands this.
It has been remarked, that civil government is necessary to the perfection of society: We remark that civil liberty is necessary to the perfection of civil government. Civil liberty is natural liberty itself, divested only of that part, which, placed in the government, produces more good and happiness to the community, than if it had remained in the individual. Hence it follows, that civil liberty, while it refigns a part of natural liberty, retains the free and generous exercise of all the human faculties, so far as it is compatible with the public welfare.
In considering and developing the nature and end of the fyftem before us, it is necessary to mention another kind of liberty, which may be distinguished by the appellation of federal liberty. When a single government is instituted, the individuals, of which it is composed, surrender to it a part of their natural independence, which they before enjoyed as men. When a confederate republic is inftituted, the communities, of which it is composed, surrender to it a part of their political independence, which they before enjoyed as states. The principles, which directed, in the former case, what part of the natural liberty of the man ought to be given up, and what part ought to be retained, will give similar directions in the latter case. The states should resign, to the national government, that part, and that part only, of their political liberty, which placed in that government, will prodúce more good to the whole, than if it had remained in the several ftates. While they resign this part of their political liberty, they retain the free and generous exercise of all their other faculties as ftates, so far as it is compatible with the welfare of the general and Superintending confederacy.
Since siates as well as citizens are represented in the conftitution before us, and form the objects on which that constitution is proposed to operate, it was necessary to notice and define federal as well as civil liberty.
We now see the great end which they proposed to accomplish. It was to frame, for their constituents, one federal and national constitution-a constitution, that would produce the advantages of good, and prevent the inconveniencies of bad government—a constitution, whose beneficence and energy would pervade the whole union; and bind and embrace the interests of every part-a constitution, that would ensure peace, freedom and happiness, to the states and people of America.
We are now naturally led to examine the means, by which they proposed to accomplish this end. But previously to our entering upon it, it will not be improper to state fome general and leading principles of government, which will receive particular application in the course of our investigations.
There necessarily exists in every government, a power from which there is no appeal ; and which, for that reason, may be termed fupreme, absolute and uncontrollable. Where does this power reside? To this question, writers on different governments will give different answers. According to Blackstone, in this country, this power is lodged in the British parliament, and the parliament may alter the form of government; and its power is absolute without control. The idea of, a conftitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in this kingdom. There are, at least no traces of practice, conformable to such a principle.
To control the power and conduct of the legislature by an over-ruling constitution, was an improvement in the science and practice of government, reserved to the American ftates
Perhaps some politician, who has not considered, with sufficient accu- . racy, their political systems, would answer, that in their governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth; but does not reach it. The truth is, that, in the American governments, the supreme, absolute and uncontrollable power remains in the people. As their conftitutions are superior to their legislatures; so the people are superior to their constitutions. Indeed the superiority, in this last instance, is much greater; for the people possess, over their constitutions, control in act, as well as in right.
The consequence is, that the people may change the constitutions, whenever, and however they please. This is a right, of which no positive institution can ever deprive them.
These important truths, are far from being merely speculative: To their operation, we are to ascribe the scene, hitherto unparallelled, which