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Title: History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 - with notices of principle framers
Author: Curtis, George Ticknor
Language: English
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       *       *       *       *       *



                HISTORY

                 OF THE

     ORIGIN, FORMATION, AND ADOPTION

                 OF THE

   CONSTITUTION OF THE UNITED STATES;

                  WITH

    NOTICES OF ITS PRINCIPAL FRAMERS.


                   BY
         GEORGE TICKNOR CURTIS.


            IN TWO VOLUMES.

              VOLUME II.


               NEW YORK:
         HARPER AND BROTHERS,
           FRANKLIN SQUARE.
                 1858.



    Entered according to Act of Congress, in the year 1858, by

    GEORGE T. CURTIS,

    in the Clerk's Office of the District Court of the District
    of Massachusetts.



CONTENTS

OF

VOLUME SECOND.


BOOK IV.

     FORMATION OF THE CONSTITUTION.


CHAPTER I.

     PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE
     CONVENTION.--POSITION OF THE STATES.--RULE OF INVESTIGATION.

                                                                    Page

    Explanation of the Author's Plan                                3, 4

    Preservation of Republican Government                            5-7

    Nature of American Freedom                                       7-9

    Its Dependence upon the Union                                  9, 10

    Intention of the Framers of the Constitution                      11

    Hamilton's Purposes                                               11

    The Confederation officially condemned                        11, 12

    Purposes of the States                                            12

    The declared Objects of the Convention                            13

    Nature of the previous Union                                  14, 15

    General Purpose of the People                                     16

    Powers of the Convention                                          17

    Opposite Views of the Members                                     18

    Presence of Slavery in the States                             19, 20

    The Slaves in some Form to be considered                       20-22

    How they were regarded under the Confederation                    21

    Complex Relations of the Subject                                  22

    All the States but one represented in Convention                  23

    Absence of Rhode Island                                       24, 25

    Application of the Minority of Rhode Island                   25, 26

    Position of the States in Convention                          27, 28

    Reserved Authority of the People                              28, 29

    Present Importance of the Process of forming the
      Constitution                                                    29

    Cautions to be used in Interpretation                             30


CHAPTER II.

     CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION
     AND RULE OF SUFFRAGE.--POWERS OF LEGISLATION.

    Randolph's Outline of a Constitution                              32

    Referred to Committee of the Whole                                32

    Idea of a National Government                                  32-35

    Rule of Suffrage in the Legislature                               35

    First Parties in the Convention                                   36

    Representatives in one Branch to be chosen by the People          37

    Representation of the People                                   39-40

    States in some way to be represented                          40, 41

    State Legislatures to choose the Members of the other Branch      41

    Ratio of Representation as between the States                  42-44

    Basis of the Representative System                             44-49

    Rule of Suffrage in the Senate                                    48

    Consequences of Numerical Representation                      49, 50

    Powers to be conferred on the Legislature                         50

    Control of State Legislation                                   51-55

    Population of the States                                          55


CHAPTER III.

     CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.

    Of how many Persons the Executive to consist                      56

    Negative to be given to the Executive                             57

    Mode of choosing the Executive                                    59

    Purpose and Necessity of a Judiciary                              60

    To be made supreme                                                65

    Its Jurisdiction                                                  65

    Tenure of the Judicial Office                                     67

    Note on the Judicial Tenure                                       69


CHAPTER IV.

     ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN
     GOVERNMENT.--POWER OF AMENDMENT.--OATH TO SUPPORT THE NEW
     SYSTEM.--RATIFICATION.

    The Union destined to be enlarged                                 75

    Jefferson's Measure for the Admission of New States in 1784       76

    Want of Power in the Confederation                                77

    Power to be supplied in the Constitution                          78

    Guaranty of State Governments to be provided                      79

    Necessity and Utility of the Guaranty                          80-83

    A Mode of Amendment to be provided                                84

    Oath to support the Constitution                                  84

    Mode of Ratification                                           84-86

    Report of the Committee of the Whole                              86


CHAPTER V.

     ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY
     PLANS.--HAMILTON'S PROPOSITIONS.--MADISON'S VIEW OF THE NEW
     JERSEY PLAN.

    General Character of the Virginia Plan                            89

    Difficulties and Obstacles in its Way                             91

    The chief Cause of Opposition                                     92

    The counter Plan by the New Jersey Members                        92

    Referred to a Second Committee of the Whole                       92

    Argument of Patterson in its Support                              93

    Hamilton interposes                                               94

    The Nature of the Issue pending                                   95

    Hamilton's Leading Principles                                     95

    He states the Courses open to the Convention                      96

    Explains the Principles on which Government must be founded    96-98

    Objects to the New Jersey Plan                                98, 99

    Not satisfied with the Virginia Plan                              99

    His Views of what must be done                               99, 100

    Introduces his own Plan                                          101

    It must be judged by the Issue pending                       101-106

    Madison examines the New Jersey Plan                             106

    Explains its Effect on the smaller States                        107

    Declares the Representation to be the great Difficulty           108

    The States must be represented proportionally                    109

    The Virginia Plan again adhered to                               109

    Note on the Opinions of Hamilton                                 110


CHAPTER VI.

     CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION
     OF THE LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE
     STATES ON THE NATURE OF REPRESENTATION IN THE TWO
     BRANCHES.--THREATENED DISSOLUTION OF THE UNION.

    Different Magnitudes of the States                               116

    Inequalities in other Respects                                   117

    The Majority and Minority of States                         117, 118

    Views of New York                                            118-121

    Luther Martin's Opinions                                         121

    Position of Connecticut                                          122

    Nature of the Question between the Larger and the Smaller
      States                                                     122-125

    Advantages of a National System                                  127

    Difficulties attending it                                        128

    Dangers of adhering inflexibly to Theory                         129

    Division of the Legislature into Two Chambers                    130

    Origin of the Division in England                           130, 131

    Practical Advantages of the Separation                      131, 132

    Why resisted by the Minority                                     133

    Defect in the Virginia Plan                                      133

    Mode of electing the Members                                     134

    Rule of Suffrage for the House                                   135

    Madison's View of the Interest of the Small States               136

    Hamilton on the Consequences of Dissolution                 136, 137

    Evil Results of a perfect Theory                                 137

    Purpose of a Senate                                              138

    Necessity for a distinct Basis                               138-140

    Irreconcilable Differences                                       140

    Proposition of Compromise rejected                               141

    Disagreement on the Senate                                       141

    Consequences of a Failure to form a Constitution             142-144


CHAPTER VII.

     FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF
     THE STATES ADOPTED AS THE BASIS OF REPRESENTATION IN THE
     HOUSE.--RULE FOR COMPUTING THE SLAVES.--EQUALITY OF
     REPRESENTATION OF THE STATES ADOPTED FOR THE SENATE.

    Appointment of a Committee of Compromise                         145

    Representation adjusted by the Committee                         146

    Character of the Compromise                                      147

    How treated in the Convention                               147, 148

    Apportionment of Representatives re-arranged                148, 149

    Objections to the Plan                                      149, 150

    Representation of the Slaves                                     150

    Combined Rule of Numbers and Wealth                              151

    Test Question respecting the Slaves                              153

    Necessity for their Admission into the Basis of
      Representation                                             154-162

    The Difficulties only to be adjusted by Compromise               162

    Form of the Compromise                                      163, 164

    Equality of Vote adopted for the Senate                     165, 166

    Value of this Feature of the Constitution                   166, 167

    Population of the Slaveholding and Non-slaveholding States
      compared                                                       168


CHAPTER VIII.

     POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE
     EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW
     STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY
     OF REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE
     CONSTITUTION.--RATIFICATION.--NUMBER OF
     SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT.

    The General Interests of the Union to be provided for            170

    Constitution, Laws, and Treaties to be Supreme                   170

    Appointment and Powers of the Executive                          171

    Re-eligibility of the Executive                             172, 173

    Tenure of the Office                                             173

    Right of Suffrage in Choice of the Executive                     174

    Appointment by Electors                                          175

    Construction of the Judiciary                                    176

    Admission of New States                                          176

    Completion of the Engagements of Congress                        176

    Guaranty of Republican Governments                               177

    Future Amendments                                                177

    Oath to Support the Constitution                                 177

    Ratification                                                     177

    Objects of a Popular Ratification                            177-184

    Constitution to be submitted to the Congress                     185

    Number of Senators                                               186

    Qualifications for Office                                        186

    Property Qualification                                           187

    Seat of the National Government                                  189

    General Pinckney's Notice respecting Slaves and Exports          189

    Resolutions sent to Committee of Detail                          190


CHAPTER IX.

     REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE
     LEGISLATURE.--TIME AND PLACE OF ITS MEETING.

    Power confided to the Committee of Detail                        193

    Their Draft of a Constitution                                    194

    Right of Suffrage                                                194

    Foreign-born Inhabitants                                     195-196

    Immigration to be encouraged                                     197

    Qualifications for Voting                                    198-202

    Power of Naturalization                                          199

    Qualifications for Office                                    203-210

    Spirit of the Constitution                                       211

    Ratio of Representation                                      212-214

    Money Bills                                                  215-222

    Qualifications of Senators                                  223, 224

    Number of Senators                                           224-226

    Method of Voting in the Senate                               226-228

    Vacancies in the Senate and House                                229

    Powers of the Senate                                         229-240

    Senatorial Term                                              240-242

    Disqualifications of Members of both Branches          242 _et seq._

    Parliamentary Corruption                                     242-244

    Executive Influence                                          244-256

    Time and Place for Elections                                     257

    Pay of Members                                              258, 259

    Impeachments                                                 260-262

    Quorum of each House                                             262

    Separate Powers of each House                                262-263

    President of the Senate                                          263

    Enactment of Laws                                                264

    President's Negative                                         265-268

    Seat of Government                                           268-277

    Session of Congress                                         277, 278


CHAPTER X.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF
     CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION
     RESPECTING COMMERCE, EXPORTS, AND THE SLAVE-TRADE.

    General Principles of the Powers of Legislation             279, 280

    Limitations                                                      280

    Exports and the Slave-Trade                                      281

    Fitness and Unfitness of a Tax on Exports                        282

    Variety in the Exports of the United States                      283

    Impracticability of such a Tax                                   284

    The Slave-Trade Controversy                            285 _et seq._

    How adjusted                                           289 _et seq._

    Restrictions on the Revenue and Commercial Powers                289

    Regulation of Commerce                                 291 _et seq._

    Settlement of the Revenue and Commercial Powers        295 _et seq._

    Proposition of Compromise                                        301

    Arrangement of the Compromise                                    303

    Value of the Compromise                                          307

    Benefits of the Revenue and Commercial Powers                    309


CHAPTER XI.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING
     POWERS OF CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE
     STATES.

    Purpose of the Revenue Power                                 318-322

    Preference of Ports prohibited                              323, 324

    Duties, &c. to be equal                                          325

    Commerce with the Indian Tribes                              325-328

    Uniform Rule of Naturalization                                   328

    Coining and Regulating Value of Money                            328

    Standard of Weights and Measures                                 328

    Post-Offices and Post-Roads                                      328

    Power to borrow Money                                        328-330

    Tribunals inferior to the Supreme Court                          330

    Rules as to Captures                                             330

    Offences against the Law of Nations                              331

    Counterfeiting                                                   332

    War Power                                                        332

    Raising and supporting Armies                                    333

    Navy                                                             334

    Power over the Militia                                       334-338

    Necessary and proper Laws to execute the Specific Powers         338

    Patents and Copyrights                                           339

    Power over Territories                                       341-358

    Admission of New States                                          358

    Restraints upon Congress                                         359

    Suspension of the _habeas corpus_                                359

    Bills of Attainder                                               360

    _Ex post facto_ Laws                                   360 _et seq._

    Titles of Nobility                                               362

    Gifts and Emoluments from foreign Princes                        362

    Restraints upon the States                             362 _et seq._

    Obligation of Contracts                                          365

    State Imposts                                                    369

    Tonnage Duties                                                   370

    Other Restraints                                                 371


CHAPTER XII.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF
     THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF
     TREASON.

    Principles of the National Supremacy                             372

    Preamble of the Constitution                                     373

    Supremacy effected through the Judicial Power                    374

    Ratification                                                     375

    Meaning and Operation of the Supremacy                       376-381

    Its Effect on the Growth of the Country                      381-384

    Definition and Punishment of Treason                         384-387


CHAPTER XIII.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND
     POWERS OF THE PRESIDENT.

    Election of the President, why not made directly by the People   388

    Origin of the Plan of Electors                                   389

    Choice of President and Vice-President                       390-395

    Succession of the Vice-President to the Presidency           395-398

    Mode of filling the Vacancy when there is no Vice-President      398

    Mode of choosing the Electors                               398, 399

    Opening of the Votes of the Electors                        399, 400

    Modifications of the Mode of Election made by the
      Amendment                                                 400, 401

    Contingency, for which no Provision is made                  401-403

    Qualifications for the Presidency                                404

    Salary of the President                                      404-407

    Question of a Cabinet, or a Council                          407-409

    Powers of the President                                409 _et seq._

    Executive Power                                             412, 413

    Pardoning Power                                             413, 414

    Treaty-making Power                                          414-417

    Appointing Power                                            417, 418

    To give Information on the State of the Union                    419

    Power to convene Congress                                        419


CHAPTER XIV.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF
     THE JUDICIAL POWER.

    Scope of the Judicial Power                                  421-431

    Its Purposes                                                 431-445


CHAPTER XV.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF
     RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND
     FROM SERVICE.

    Intimacy of the Relations between the People of the States       447

    Difference between the Confederation and the Constitution   447, 448

    Privileges of Citizenship in all the States                      448

    Effect of Records                                                449

    Fugitives from Justice                                      449, 450

    Fugitives from Service                                       450-467


CHAPTER XVI.

     REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--GUARANTY OF
     REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO
     SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION
     AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS
     OF THE CONVENTION.

    Purpose of the Guaranty of Republican Government                 468

    Meaning of the Guaranty                                          469

    American Sense of a "Republican" Government                      471

    Amendment a Conservative Element                                 473

    Distinction between Amendment and Revolution                 473-474

    Settlement of the Mode of Amending the Constitution          474-477

    Restrictions on the Power of Amendment                      477, 478

    Oath to support the Constitution                                 478

    Establishment of the Constitution provided for               479-485

    Signatures of the Delegates                                  485-487

    The Issue presented                                              487



BOOK V.

     ADOPTION OF THE CONSTITUTION.


CHAPTER I.

     GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION
     WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING
     IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA,
     MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR
     CONVENTIONS.

    Public Anxiety                                                   491

    Rumors about the Bishop of Osnaburg                              492

    Scheme of the Tories                                        493, 494

    Publication of the Constitution                                  495

    Its Friends and Opponents                                   495, 496

    Position of the People                                      497, 498

    Reception of the Instrument in Congress                          499

    Action upon it                                                   500

    Reception in Massachusetts                                       501

    Reception in New York                                        502-504

    Reception in Virginia                                       505, 506

    Jefferson's Opinion                                         506, 507

    Course recommended by Jefferson                                  508

    Washington's Exertions                                           509

    Patrick Henry's Course in the Legislature                        510

    Debate in the Legislature of South Carolina                      511

    Action of the Legislature of Maryland                            512

    Luther Martin's Address                                      512-514

    State of Opinion in New Hampshire                                514

    The real Crisis anticipated                                      515

    Chances for the Constitution                                     516

    Uncertainty of the Result                                        517


CHAPTER II.

     RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA,
     AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR
     1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF
     MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF
     AMENDMENT.--RATIFICATION OF MARYLAND WITHOUT OBJECTION.--SOUTH
     CAROLINA, THE EIGHTH STATE, ADOPTS, AND ADOPTS, AND PROPOSES
     AMENDMENTS.

    Delaware ratifies unanimously                                    518

    _Prestige_ of Philadelphia                                       519

    James Wilson in the Convention of Pennsylvania                   520

    His Defence of the Constitution                              521-524

    Ratification of Pennsylvania                                     524

    Position of New Jersey                                      524, 525

    Ratifies the Constitution                                        526

    Position of Georgia                                              526

    Ratifies the Constitution                                        527

    Convention of Connecticut                                   527, 528

    Her Adoption                                                     529

    New Aspect of the Subject                                   529, 530

    Convention of Massachusetts assembles                            530

    Nature of her Opposition                                         531

    Value of her State Constitution                                  532

    Parties in her Convention                                   532, 533

    Samuel Adams and the Opposition                             533, 534

    The Federal Leaders                                              534

    They recognize the Necessity for Amendments                      535

    Dangers of this Admission                                   535, 536

    Hancock proposes the Amendments                                  537

    Ratification procured by them                                    538

    Conduct of the Minority                                          539

    Nature of the Amendments                                    539, 540

    The People of Boston rejoice                                     540

    Influence of Massachusetts on New Hampshire                      541

    Critical Position of Maryland                                    542

    Her Ratification                                                 543

    Rejoicings in Baltimore                                          543

    Good News from South Carolina                                    544

    Liberal Conduct of her People                               544, 545

    Defence of the Constitution by her Delegates                     546

    The Convention admits the Justice of the Commercial Power        547

    Efforts of the Opposition                                        548

    Charleston celebrates the Constitution                           548


CHAPTER III.

     RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH
     PROPOSED AMENDMENTS.

    New Hampshire, Virginia, and New York are to act in the
      same Month                                                     549

    Hamilton's Expresses arranged                                    550

    Virginia Convention meets                                        551

    Patrick Henry leads the Opposition                               552

    His peculiar Tendencies                                          553

    Character of his Politics                                        554

    Edmund Randolph's Position                                       555

    Unexpectedly supports the Constitution                           556

    George Mason on the Power of Direct Taxation                     557

    Henry denounces the Constitution                                 558

    Madison defends it                                               559

    He denies the Dangers imputed to it                              560

    Henry vouches the Advice of Jefferson                            561

    Jefferson's Advice misconstrued                                  562

    Henry persists in pressing his View of it                        563

    It strengthens the Opposition                                    564

    They employ the Mississippi Question                             565

    True Aspect of that Question                                     566

    Madison's Answer to the Opposition                               567

    Negotiations opened with the Anti-Federalists of New York and
      Pennsylvania                                                   568

    The Convention of New York assembles                             568

    Hamilton at the Intersection of his Expresses                    569

    His Critical and Responsible Position                       569, 570

    Nature of his Ambition                                      570, 571

    His Opinion of the Purposes of the Opposition                    571

    His Answer to their Plans                                        572

    He receives News of the Ratification by New Hampshire            573

    Chancellor Livingston announces the Ratification of the Ninth
      State                                                          574

    The Opposition not subdued                                       574

    Hamilton's Conduct at this Crisis                            575-578

    He despatches a Courier to Richmond                              578

    But the Constitution is ratified before the Courier arrives      578

    How its Ratification was obtained                            579-581

    Henry's magnanimous Submission                                   581

    The News from Virginia received at Philadelphia                  582

    Elaborate Procession in Honor of the Constitution                583

    Hamilton receives the News from Virginia                         584

    He consults his Friends                                          585

    They force the Opposition to an Issue                            586

    Hamilton advises with Madison                                    587

    An Unconditional Ratification carried                            588

    The Federalists unite in a Call for a Second General Convention  588

    Their Justification for so doing                             589-592

    The City of New York celebrates the Adoption of the
      Constitution                                                   592

    Honors paid to Hamilton by the People                        592-595


CHAPTER IV.

     ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION.

    Convention of North Carolina assembles                           596

    Refuses to ratify the Constitution                               597

    Elements of the Opposition in Rhode Island                       598

    Local Parties in the State                                       599

    Town and Country divided                                         600

    Spirit of a Majority of the People                          600, 601

    They reject the Constitution                                     602

    Embarrassing Position of the Union                               603

    Conclusion                                                       604


APPENDIX.

    Constitution of the United States of America                     607

    Articles in Addition to, and Amendment of, the Constitution of
      the United States of America                                   619


  INDEX                                                              633



BOOK IV.

FORMATION OF THE CONSTITUTION.



CHAPTER I.

PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION
OF THE STATES.--RULE OF INVESTIGATION.


After long wanderings through the struggles, the errors, and the
disappointments of the earlier years of our constitutional history, I
now come to consider that memorable assembly to which they ultimately
led, in order to describe the character of an era that offered the
promise of a more vigorous nationality, and presented the alternative
of final dissolution. How the people of the United States were enabled
to seize the happy choice of one of these results, and to escape the
disasters of the other, is to be learned by examining the mode in
which the Constitution of the United States was framed.

In approaching this interesting topic, I am naturally anxious to place
myself at once on a right understanding with the reader,--to apprise
him of the purpose of the discussions to which he is invited, and to
guard against expectations which might be entertained, but which will
not be fulfilled.

In a work designed for general and--as I venture to hope it may
prove--for popular use, it would be out of place, as it certainly
would be impracticable within the limits of a single volume, to
undertake the explanation and discussion of all those particular
questions of construction that must constantly arise under almost
every clause and feature of such an instrument as the Constitution of
the United States, and which, as our whole experience has taught us,
are fruitful both of extensive debate and of wide as well as honest
diversities of opinion. I shall consider questions of construction
only so far as may be necessary to elucidate my subject; for I
propose, in writing the history of the formation of the Constitution,
to describe rather those great modifications in the principles and
structure of the Union that took place in the period at which we have
now arrived in the course of this work; to state the essential
features of the new government; and to trace the process by which they
were evolved from the elements to which the framers of that government
resorted.

Happily for us, the materials for such a description are ample. The
whole civil change which transformed the character of our Union, and
established for it a national government, took place peacefully and
quietly, within a single twelvemonth. It was attended with
circumstances which enable us to ascertain its character with a high
degree of certainty. The leading purposes that were entertained and
carried out were not left to the conjecture of posterity, but were
recorded by deliberative assemblies, whose acts of themselves
expressed and ascertained the objects and intentions of the national
will. First framed by an assembly in which the States participating in
the change were fully represented, and subsequently debated and
ratified in conventions of the people in the separate States, the
general nature and design of the Constitution may be traced and
understood without serious difficulty.

But to the right understanding of its nature and objects, a careful
examination of the proceedings of the national Convention is, in the
first place, essential. Before we enter, however, upon this
examination, there are certain preliminary facts that explain the
circumstances in which the Convention was assembled, and which will
enable us to appreciate the results at which it arrived. To these,
therefore, the reader is now desired to turn.

First of all, then, it is to be remembered that the national
Convention of 1787 was assembled with the great object of framing a
system of government for the united interests of the thirteen States,
by which the forms and spirit of republican liberty could be
preserved. The warnings and teachings of the ten preceding years,
which I have attempted to describe in a previous volume, had presented
to the people of these States the serious question, whether their
system of conducting their common affairs then rested upon principles
that could secure their permanent prosperity and happiness. That the
States had national interests; that each of them stood in relations to
the others, and to the rest of the world, which its separate and
unaided power was unable to manage with success; and that even its
own internal peace and prosperity required some external
protection,--had been brought home to the convictions of the people by
an experience that commenced with the day on which they declared
themselves independent, and had now forced upon them its last stern
and sorrowful lesson in the general despondency of the national heart.
As they turned anxiously and fearfully to the near and dear interests
involved in their separate and internal concerns, they saw that
self-government was a necessity of their existence. They saw that
equality before the law for the whole people; the right and the power
to appoint their own rulers; the right and the power to mould and form
and modify every law and institution at their own sovereign will,--to
lay restraints upon their own power, or not to lay them,--to limit
themselves by public compact to a particular mode of action, or to
remain free to choose other modes,--were the essential conditions of
American society. In a word, they beheld that republican and
constitutional liberty, which, with all that it comprehends and all
that it bestows, was not only altogether lovely in their eyes, but
without which there could be no peace, no social order, no
tranquillity, and no safety for them and their posterity.

This liberty they knew must be preserved. They loved it with
passionate devotion. They had been trained for it by the whole course
of their political and social history. They had fought for it through
a long and exhausting war. Their habits of thought and action, their
cherished principles, their hopes, their life as a people, were all
bound up in it; and they knew that, if they suffered it to be lost,
there would remain for them nothing but a heritage of shame, and ages
of confusion, strife, and sorrow.

Great as was their devotion to this republican liberty, and ardent as
was their love of it, they did not value it too highly. The doctrine
that all power resides originally in the people; that they are the
source of all law; that their will is to be pronounced by a majority of
their numbers, and can know no interruption,--was not first discovered
in America. But to this principle of a democracy the people of the
American States had added two real and important discoveries of their
own. They had ascertained that their own power might be limited by
compacts which would regulate and define the modes in which it shall be
exercised. Their written constitutions had taken the place of the royal
charters which formerly embraced the fundamental conditions of their
political existence, but with this essential difference,--that whereas
the charter emanated from a foreign sovereign to those who claimed no
original authority for themselves, the constitution proceeded from the
people, who claimed all authority to be resident in themselves alone.
While the charter embraced a compact between the foreign sovereign and
his subjects who lived under it, the constitution, framed by the people
for their own guidance in exercising their sovereign power, became a
compact between themselves and every one of their number. In this
substitution of one supreme authority for another, some limitation of
the mode in which the sovereign power was to act became the necessary
consequence of the change; for as soon as the people had declared and
established their own sovereignty, some declaration of the nature of
that sovereignty, and some prescribed rules for its exercise, became
immediately necessary, and that declaration and those rules became at
once a limitation of power, extending to every citizen the protection
of every principle involved in them, until the same authority which had
established should change them.

Against the evils, too, that might arise from the unrestricted control
of a majority of the people over the fundamental law,--against the
abuse of their power by frequent and passionate changes of the rules
which limit its exercise for the time being,--they had discovered the
possibility of limiting the mode in which the organic law itself was
to be changed. By prescribing certain forms in which the change was to
be made, and especially by requiring the fact, that a change had been
decreed by those having a right to make it, to be clearly and
carefully ascertained by a particular evidence, they guarded the
fundamental law itself against usurpation and fraud, and greatly
diminished the influences of haste, prejudice, and passion.

Such was the nature of American republican liberty; not then fully
understood, not then fully developed in all the States, but yet
discovered,--a liberty more difficult of attainment, more elaborate in
its structure, and therefore more needful of defence, than any of the
other forms of constitutional freedom under which civilized man had
hitherto been found.

Now, the fate of republican liberty in America, at that day, depended
directly upon the preservation of some union of the States, and not
simply upon the existing State institutions, or upon the desires of
the people of each separate State. It is true, that their previous
training and history, and their own intelligent choice, had made the
States, in all their forms and principles, republican governments; and
almost all of them had, at this period, written constitutions, in
which the American ideal of such governments was aimed at, and more or
less nearly reached. But how long were these constitutions, these
republican forms, to exist? What was to secure them? Who was to stand
as their guarantor and protector, and to vindicate the right of the
majority to govern and alter and modify? Who was to enforce the rules
which the people of a State had prescribed for their own action, when
threatened by an insurgent and powerful minority? Who was to protect
them against foreign invasion or domestic violence? There was no
common sovereign, or supreme arbiter, to whom they could all alike
appeal. There was no power upon this broad continent to whom the
States could intrust the duty of preserving their institutions
inviolate, except the people of the United States in some united and
sovereign capacity. No single State, however great its territory or
its population, could have discharged these duties for itself by its
unaided power; for no one of them could have repelled a foreign
invasion alone, and the government of one of the most respectable and
oldest of them, whose people had exhibited as much energy as any other
community in America, had almost succumbed to the first internal
disorder which it had been forced to encounter.

The preservation of the Union of the States was, therefore, essential
to the continuance of their independence, and to the continuance of
republican constitutional liberty,--of that liberty which resides in
law duly ascertained to be the authentic will of a majority. With this
vastly important object before them, the people of the States of
course could give to the Union no form that would not reflect the same
spirit, and harmonize with the nature of their existing institutions.
To have left their State governments resting upon the broad basis of
popular freedom acting through republican forms, and to have framed,
or to have attempted to frame, national institutions on any other
model, would have been an act of political suicide. To enable the
Union to preserve and uphold the authority of the people within the
respective States, it must itself be founded on the same authority,
must embody the same principles, spring from the same source, and act
through similar institutions.

Accordingly, the student of this portion of our history will find
everywhere the clearest evidence that, so far as the purpose of
forming a national government of a new character was entertained at
the period when the Convention was assembled, a republican form for
that government was a foregone conclusion. Not only did no State
entertain any purpose but this, but no member of the Convention
entered that body with any expectation of a different result. There is
but one of the statesmen composing that assembly to whom a purpose of
creating what has been called a monarchical government has ever been
distinctly imputed; and with regard to him, as much as to every other
person in the Convention, I shall show that the imputation is unjust.
Hamilton,--for it is to him of course that I now allude,--together
with many others, believed that a failure, at that crisis, to
establish a government of sufficient energy to pervade the whole Union
with the necessary control, would bring on at once a state of things
that must end in military despotism. Hence his efforts to give to the
republican form, which he acknowledged to be the only one suited to
the circumstances and condition of the country, the highest degree of
vigor, stability, and power that could be attained.

Another very important fact, which the reader is to carry along with
him into the examination of the proceedings of the Convention, is,
that by the judgment of the old Congress, and of every State in the
Union save one,[1] the Confederation had been declared defective and
inadequate to the exigencies of government, and the preservation of
the Union. That this declaration was expressly intended to embrace the
principle of the Union, or looked to the substitution of a system of
representative government, to which the people of the States should be
the immediate parties, in the place of their State governments, does
not appear from the proceedings which authorized and constituted the
Convention. In substance, those proceedings ascertained that there
were great defects in the existing Confederation; that there were
important purposes of the federal Union which it had failed to secure;
and that a Convention of all the States, for the purpose of revising
and amending the Articles of Confederation, was the most probable
means of establishing a firm general government, and was therefore to
be held. But what were the original purposes of the Union, or what
purposes had come to be regarded as essential to the public welfare,
was not indicated in most of the acts constituting the Convention.
Virginia, whose declaration preceded that of Congress and of the other
States, and on whose recommendation they all acted, had made the
commercial interests of the United States the leading object of the
proposed assembly; but she had also declared the necessity of
extending the revision of the federal system to all its defects, and
had advised further concessions and provisions, in order to secure the
great objects for which that system was originally instituted. These
general and somewhat indefinite purposes were declared by the other
States, without any material variation from the terms employed by
Virginia.[2]

Hence it is that the previous history of the Union becomes important
to be examined before we can appreciate the great general purposes of
its original formation, as they were understood at the time of these
proceedings, or can appreciate the further purposes that were intended
to be engrafted upon it. The declarations made by the Congress and the
States seem obviously to embrace two classes of objects; the one is
what, in the language of Virginia, they conceived to have been "the
great objects for which the federal government was instituted"; the
other is the "exigencies of the Union," for peace as well as for war,
as they had been displayed and developed by the defects of the
Confederation, and by its failures to secure the general welfare. The
first of these classes of objects could be ascertained by reference to
the terms and provisions of the Articles of Confederation; the second
could only be ascertained by resorting to the history of the
confederacy, and by regarding its recorded failures to promote the
general prosperity as proofs of what the exigencies of the Union
demanded in a general government.[3]

In the first volume of this work we have examined the nature and
operation of the previous Union, in both of its aspects, and we must
carry the results of that examination along with us in studying the
formation of the new system. We have seen the character of the Union
which was formed by the assembling of the Revolutionary Congress, to
enable the States to secure their independence of the crown of Great
Britain. We have seen that, from the jealousies of the States, even
this Congress never assumed the whole revolutionary authority which
its situation and office would have entitled it to exercise. We have
seen also, that, from the want of a properly defined system, and from
the absence of all proper machinery of government, it was unable to
keep an adequate army in the field, until, in a moment of extreme
emergency, it conferred upon the Commander-in-chief the powers of a
dictator. We have witnessed the establishment of the Confederation,--a
government which bore within itself the seeds of its own destruction;
for it relied entirely, for all the sinews of war, upon requisitions
on the States, with which the States perpetually refused or neglected
to comply. We have thus seen the war lingering and languishing until
foreign aid could be procured, and until loans of foreign money
supplied the means of keeping it alive long enough for the admirable
courage, perseverance, and energy of Washington to bring it to a
close, against all obstacles and all defects of the civil power. When
the war was at length ended, and the duty of paying the debts thus
incurred to the meritorious and generous foreign creditor, and the
more than meritorious and generous domestic creditor, pressed upon the
conscience of the country, we have seen that there was no power in the
Union to command the means of paying even the interest on its
obligations. We have seen that the treaty of peace could not be
executed; that the Confederation could do nothing to secure the
republican governments of the States; that the commerce of the country
could not be protected against the policy of foreign governments,
constantly watching for advantages which the clashing interests of the
different States at all times held out to them; and that, with the
rule which required the assent of nine States to every important
measure, it was possible for the Congress to refuse or neglect to do
what it was of the last importance to the people of the United States
they should do. Finally, we have seen that what now kept the existing
Union from dissolution, as it had been one immediate inducement to its
formation, was the cession of the vast Northwestern territory to the
United States; and that over this territory new States were forming,
to take their places in the band of American republics, while the
Confederation possessed no sufficient power to legislate for their
condition, or to secure their progress toward the great ends of civil
liberty and prosperity.

A retrospection, therefore, of the previous history of the
Confederacy, while it reveals to us the public appreciation of the
national wants and the national failures, displays the general
purposes contemplated by the States when they undertook effectually to
provide for "the exigencies of the Union." But what the nature of the
proposed changes was to be, and in what mode they were to be reached,
was, as we have seen, left undetermined by the constituent States when
they assembled the Convention; and we are now, therefore, brought to
the third preliminary fact, necessary to be regarded in our future
inquiries, namely, the condition of the actual powers of that
assembly.

The Confederation has already been described as a league, or federal
alliance between independent and sovereign States, for certain
purposes of mutual aid. So far as it could properly be called a
government, it was a government for the States in their corporate
capacities, with no power to reach individuals; so that, if its
requirements were disregarded, compulsion could only be directed--if
against anybody--against the delinquent member of the association, the
State itself.

At the time when the Convention was assembled, the general purpose
entertained throughout the Union appears to have been, by a revision
and amendment of the Articles of Confederation, to give to the
Congress power over certain subjects, of which that instrument did not
admit of its taking cognizance, and to add such provisions as would
render its power efficient. But it was not at all understood by the
country at large, that, while the nominal powers of the Confederation
might be increased at the pleasure of the States, those powers could
not be made effectual without a change in the principle of the
government. Hence, the idea of abolishing the Confederation, and of
erecting in its place a government of a totally different character,
was not entertained by the States, or, if entertained at all, was not
expressed in the public acts of the States by which the Convention was
called. This idea, however, was perhaps not necessarily excluded by
the terms employed by the States in the instruction of their
delegates: and we may therefore expect to find the members of that
assembly, in construing or defining the powers conferred upon it,
taking a broader or narrower view of those powers, according to the
character of their own minds, the nature of their previous public
experience, and the real or supposed interests of their particular
States.

Many of the persons who had been clothed with this somewhat vague and
indeterminate authority to "revise" the existing federal system, and
to agree upon and propose such amendments and further provisions as
might effectually provide for the "exigencies of the Union," were
statesmen who had passed the active period of their previous lives in
vain endeavors to secure efficient action for the powers possessed by
the Congress, both under the revolutionary government and under the
Confederation. They were selected by their States on account of this
very experience, and in order that their counsels might be made
available to the country.[4] They saw that the mere grant of further
powers, or the mere consent that the Congress should have jurisdiction
over certain new subjects, would be of no avail while the government
continued to rest upon the vicious principle of a naked federal
league, leaving the question constantly to recur, whether the compact
was not virtually dissolved by the refusal of individual States to
discharge their federal obligations. These persons, consequently, came
to the Convention feeling strongly the necessity for a radical change
in the principles and structure of the national Union; but feeling
also great embarrassment as to the mode in which that change was to be
effected.

On the other hand, there were other members of the Convention who came
with a disposition to adhere to the more literal meaning of their
instructions, and who did not concur in the alleged necessity for a
radical change of the principle of the government. Fearing that the
power and consequence of their own States would be diminished by the
introduction of numbers as a basis of representation, they adhered to
the system of representation by States, and insisted that nothing was
needed to cure the evils that pressed upon the country, but to enlarge
the jurisdiction of the Congress under that system. They were
naturally, therefore, the first  to suggest and the last to surrender
the objection, that the Convention had received no authority, either
from the States or from the Congress, to do anything more than revise
the Articles of Confederation, and recommend such further powers as
might be engrafted upon the present system of the Union.

That the construction of their powers by the latter class of the
members of the Convention comported with the mere terms of the acts of
the States, and with the general expectation, I have more than once
intimated; but we shall see, as the experiment of framing the new
system proceeded, that the views of the other class were equally
correct; that the addition of further powers to the existing system of
the Union would have left it as weak and inefficient as it had been
before; and that what were universally regarded as the "exigencies of
the Union"--which was but another name for the wants of the
States--could only be provided for by the creation of a different
basis for the government.

Another fact which we are to remember is the presence, in five of the
States represented in the Convention, of large numbers of a distinct
race, held in the condition of slaves. Whatever mode of constituting a
national system might be adopted, if it was to be a representative
government, the existence of these persons must be recognized and
provided for in some way. Whatever ratio of representation might be
established,--whether the States were to be represented according to
the numbers of their inhabitants, or according to their wealth,--this
part of the population of the slave-holding States presented one of
the great difficulties to be encountered. A change of their condition
was not now, and never had been, one of the powers which those States
proposed to confide to the Union. In no previous form of the
confederacy had any State proposed to surrender its own control over
the condition of persons within its limits, or its power to determine
what persons should share in the political rights of that community;
and no State that now took part in the new effort to amend the present
system of the Union proposed to surrender this control over its own
inhabitants, or sought to acquire any control over the condition of
persons within any of the other States.

The deliberations of the Convention were therefore begun with the
necessary concession of the fact, that slavery existed in some of the
States, and that the existence and continuance of that condition of
large masses of its population was a matter exclusively belonging to
the authority of each State in which they were found. Not only was
this concession implied in the terms upon which the States had met for
the revision of the national system, but the further concession of the
right to have the slave populations included in the ratio of
representation became equally unavoidable. They must be regarded
either as persons or as chattels. If they were persons, and the basis
of the new government was to be a representation of the inhabitants of
the States according to their numbers,--the only mode of
representation consistent with republican government,--their precise
condition, their possession or want of political rights, could not
affect the propriety of including them in some form in the census,
unless the basis of the government should be composed exclusively of
those inhabitants of the States who were acknowledged by the laws of
the States as free. The large numbers of the slaves in some of the
States would have made a government so constructed entirely unequal in
its operation, and would have placed those States, if they had been
willing to enter it,--as they never could have been,--in a position of
inferiority which their wealth and importance would have rendered
unjustifiable. On the other hand, if the wealth of the States was to
be the measure of their representation in the new government, the
slaves must be included in that wealth, or they must be treated simply
as persons. The slaves might or might not be persons, in the view of
the law, where they were found; but they were certainly in one sense
property under that law, and as such they were a very important part
of the wealth of the State. The Confederation had already been obliged
to regard them, in considering a rule by which the States should
contribute to the national expenses. They had found it to be just,
that a State should be required to include its slaves among its
population, in a certain ratio, when it was called upon to sustain the
national burdens in proportion to its numbers; and they had
recommended the adoption of this fundamental rule as an amendment of
the federal Articles.[5] Either in one capacity, therefore, or in the
other, or in both,--either as persons or as property, or as both,--the
Union had already found it to be necessary to consider the slaves. In
framing the new Union, it was equally necessary, as soon as the
equality of representation by States should give place to a
proportional and unequal representation, to regard these inhabitants
in one or the other capacity, or in both capacities, or to leave the
States in which they were found, and to which their position was a
matter of grave importance, out of the Union.

This difficulty should be rightly appreciated and fairly stated by the
historian who attempts to describe its adjustment, and it should be
carefully regarded by the reader. What reflections may arise upon the
facts that we have to consider,--what should be the judgment of an
enlightened benevolence upon the whole matter of slavery, as it was
dealt with or affected by the Constitution of the United States,--may
perhaps find an appropriate place in some future discussion.

Here, however, the reader must approach the threshold of the subject
with the expectation of finding it surrounded by many and complex
relations. History should undoubtedly concern itself with the
interests of man. But it is bound, as it makes up the record of events
which involve the destinies and welfare of different races, to look at
the aggregate of human happiness. It is not to rest, for its final
conclusions, in seeming or in real inconsistencies; in real or
apparent conflicts between opposite principles; or in the mere letter
of those adjustments by which such conflicts have been avoided, or
reconciled, or acknowledged. It is to arrive at results. It is to draw
the wide deduction which will show whether human nature has lost or
gained by the conditions and forms of national existence which it
undertakes to describe. As the question should always be, in such
inquiries, whether any different and better result was attainable
under all the circumstances of the case,--a question to which a calm
and dispassionate examination will generally find an answer,--the
amount of positive good that has been gained for all, or of positive
evil that has been averted from all, is the true justification of
existing institutions.

The Convention, when fully organized, embraced a representation from
all the States, with the single exception of Rhode Island.

Connecticut, which had steadily opposed the measure of a
Convention,[6] came into it at a late period, and did not send a
delegation until a fortnight after the time appointed for its
session.[7] It had always been the inclination of that State to retain
in her own hands the regulation of commerce; she had taxed imports
from some of her neighbors, and this advantage, as it was considered,
had made her reluctant to enlarge the powers of the Union. Her
delegation appeared on the 28th of May.

That of New Hampshire was not appointed until the latter part of
June,[8] and did not appear until the 23d of July.[9]

Rhode Island, small in territory and in numbers, but favorably
situated for the pursuits of commerce, had strenuously resisted every
effort to enlarge the powers of the Union. Ever since the Declaration
of Independence, the people of that State had clung to the
opportunity, afforded by their situation, of taxing the contiguous
States, through their consumption of commodities brought into its
numerous and convenient ports. For this object they had refused their
assent to the revenue system of 1783; and as the failure of that
system had prevented an exhibition of some of the benefits to be
derived from uniform fiscal regulations, the local government of Rhode
Island adhered, in 1786-7, to what they had always regarded as the
true interest of their State. They did, it is true, appoint delegates
to the commercial convention at Annapolis, but the persons appointed
did not attend; and when the resolve which sanctioned the Convention
of 1787 was adopted in Congress, Rhode Island was not represented in
that body.

When the recommendation of the Congress came before the legislature
of the State, there appears to have been a strong party in favor of
making an appointment of delegates to the Convention. The mercantile
part of the population had come to entertain more liberal and
far-seeing notions of their true interests; and the views of some of
the more intelligent of the farmers and mechanics had been much
modified. But by far the larger portion of the people--wedded to a
system of paper money, which furnished almost their sole currency, and
vaguely apprehending that a new government for the Union would destroy
it, seeking the abolition of debts, public and private, and jealous of
all influence from without--were in a condition to be ruled by their
demagogues, rather than to be enlightened and aided by their
statesmen. In May, the legislature rejected a proposition to appoint
delegates to the Federal Convention; and in June, although the upper
house, or Governor and Council, embraced the measure, it was again
negatived in the House of Assembly by a large majority. The minority
then formed an organization, which never lost sight of the national
relations of the State, and which finally succeeded in bringing her
into the Union under the new Constitution, in 1790.

Immediately after the first rejection of the proposal to unite with
the other States in reforming the Confederation, a body of commercial
persons in Providence addressed a letter to the Convention, expressing
the opinion that full power for the regulation of the commerce of the
United States, both foreign and domestic, ought to be vested in the
national council, and that effectual arrangements should also be made
for giving operation to the existing powers of Congress in their
requisitions for national purposes. Their object in this communication
was to prevent an impression among the other States, unfavorable to
the commercial interests of Rhode Island, from growing out of the
circumstance of their being unrepresented in the Convention.
Expressing the hope that the result of its deliberations would be to
"strengthen the Union, promote the commerce, increase the power, and
establish the credit of the United States," they pledged their
influence and best exertions to secure the adoption of that result by
the State of Rhode Island. The signers of this letter formed the
nucleus of that party which afterwards fulfilled the pledge thus given
to the Convention.

The absence of Rhode Island did not occasion a serious embarrassment.
The resolve of Congress recommending the Convention did not expressly
require the presence of all the States; and the commissions given by
each of the States which adopted the recommendation clearly implied
that their delegates were to meet and act with the delegations of such
other States as might see fit to be represented. The communication of
the minority party in Rhode Island was received and read, and the
interests of that State were attended to throughout the proceedings.

We are now carefully to observe the position of the States when thus
assembled in Convention. Their meeting was purely voluntary; they met
as equals; and they were sovereign political communities, whom no
power could rightfully coerce into a change of their condition, and
with whom such a change must be the result of their own free and
intelligent choice, governed by no other than the force of
circumstances. That they were independent of foreign control was
ascertained by the Declaration of Independence, by the war, and by the
Treaty of Peace. That they were independent of each other, except so
far as they had made certain mutual stipulations in the Articles of
Confederation, was the necessary result of the events which had made
the people of each State its rightful and exclusive sovereigns. We
must recur, therefore, to the Articles of Confederation for the
purpose of determining the nature of the position in which the States
now stood.

When the States, in 1781, entered into the confederacy then
established, they reserved their freedom, sovereignty, and
independence, and every jurisdiction, power, and right not expressly
delegated to the United States. By the provisions of the federal
compact, these separate and sovereign communities committed to a
general council the management of certain interests common to them
all; in that council they were represented equally, each State having
one vote; but as neither the powers conferred upon that body, nor the
restraints imposed by the States upon themselves, were to be enforced
by any agreed sanctions, the parties to the compact were left to a
voluntary performance of their stipulations. Still, there were certain
powers which the States agreed should be exercised by the United
States in Congress assembled, and certain duties towards the
confederacy which they agreed to discharge; and therefore, so far as
authority and jurisdiction had been conferred upon the United States,
so far they had been surrendered by the States. The peculiarity of the
case was, that the powers surrendered were ineffectual for the want of
appropriate means of coercion.

These powers the States did not propose to recall. The Union was
unbroken, though feeble, and trembling on the verge of dissolution.
The purpose of all was to strengthen and secure its powers, to add
somewhat to their number, and to render the whole efficient and
operative by providing some form of direct and compulsory authority.
For this end, as members of an existing confederacy, in possession of
all the powers not previously delegated to the Union, the States had
assembled upon the same equality, and under the same form of
representation, with which they had always acted in the Congress.

As the States had conferred certain powers upon the Confederation, so
it was equally competent to them to enlarge and add to those powers.
They had formed State governments, and established written
constitutions. But the people of the States, and not their
governments, held the supreme, absolute, and uncontrollable power.
They had created, and they could modify or destroy; they could
withdraw the powers conferred upon one class of agents, and bestow
them upon another class. What was wanted was the discovery of some
mode of proceeding, which, by involving the consent of the State
governments, would avoid the appearance and the reality of revolution,
and make the contemplated changes consist with the American idea of
constitutional action.

Here also it seems proper to state the reasons why the process of
framing the Constitution is so important as to demand a careful
exhibition of the proceedings of those to whom this great undertaking
was intrusted.

The Convention had confessedly no power to enact or establish
anything. It was a representative body, clothed with authority to
agree upon a system of government to be recommended to the adoption of
their constituents. The constituents were twelve of the thirteen
States of the confederacy, each having an equal voice and vote in the
proceedings; but neither the assent nor the dissent of a State, in the
Convention, to the whole system, or to any part of it, bound the
people of that State to receive or to reject it when it should come
before them. Still, the results of the various determinations of a
majority of the States in this body; the purposes of particular
provisions which those results clearly disclose; the relations which
they evince between the different parts of the system,--are all of
the utmost importance in determining the sense in which the whole
ultimately came before the enacting authority for approval or
rejection. If, for example, a majority of the States came to a very
early determination that the principle of the government should no
longer be that of an exclusive representation of States, but should
include a representation of the people of the different States in some
fair and equitable ratio; if they adhered to this throughout their
deliberations, and adjusted everything with reference to it; and if,
when they finally provided for a mode of establishing the new system,
they submitted it directly to the people of each State to declare
whether they would be so represented,--it is manifest that these
results of their action have much to do with the inquiry, What is the
true nature of the present government of the United States?

Every student of the proceedings and discussions in the national
Convention should, however, be careful not to extend this principle of
general interpretation to the views, opinions, or arguments expressed
or employed by individuals in that assembly. The line of argument or
illustration adopted by different members may be more or less
important, as tending to explain the scope or purpose of a particular
decision arrived at by a vote of the Convention; and occasionally, as
will be seen in reference to the arrangements which were finally
entered into as mutual concessions or compromises between different
interests, the discussions will be found to be of great significance
and importance. But it is, after all, to the results themselves, and
to the principles involved in the various decisions of the Convention,
as indicated by the votes taken, that we are to look for the landmarks
that are to guide our inquiries into the fundamental changes,
improvements, and additions proposed by the Convention to the country,
and afterwards adopted by the people of the States.

FOOTNOTES:

[1] Rhode Island.

[2] New Jersey specifically contemplated a regulation of commerce. See
the proceedings of Congress, and those of the States, _ante_, Vol. I.
pp. 361, 367, notes.

[3] Thus, for example, the regulation of commerce was not one of the
original purposes for which the Union was formed in 1775 or in 1781.
But it became one of the exigencies of the Union, by becoming a
national want, and by the revealed incompetency of most of the States
to deal with the subject so as to promote their own welfare, or to
avoid injury to their confederates. So of a great many other things,
for which we must resort, as the framers of the Constitution resorted,
to the history of the times.

[4] See the preamble to the act of Virginia, _ante_, Vol. I. p. 367,
note.

[5] See the Resolve of Congress, passed April 18, 1783, proposing to
amend the Articles of Confederation. This Resolve was the origin of
the proportion of three fifths, in counting the slaves. See _post_,
Chapter II. p. 48; _ante_, Vol. I. p. 213, note 2.

[6] Madison, Elliot, V. 96.

[7] Ibid. 124.

[8] Elliot, I. 126.

[9] Ibid. 351.



CHAPTER II.

CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION, AND
RULE OF SUFFRAGE.--POWERS OF LEGISLATION.


The Convention having been organized, Governor Randolph of
Virginia[10] submitted a series of resolutions, embracing the
principal changes that ought to be proposed in the structure of the
federal system.

Mr. Charles Pinckney of South Carolina also submitted a plan of
government, which, with Governor Randolph's resolutions, was referred
to a committee of the whole. It is not necessary here to state the
details of these several systems; for although that introduced by
Randolph gave a direction to the deliberations of the committee, the
results arrived at were in some respects materially different.

The first distinct departure that was made from the principles of the
Confederation was involved in one of the propositions brought forward
by Governor Randolph, "that a NATIONAL government ought to be
established, consisting of a supreme legislative, executive, and
judiciary"; and as this proposition was affirmed in the committee by
a vote of six States, it is important to understand the sense in which
it was understood by them.[11]

Most of the framers of the Constitution seem to have considered that a
compact between sovereign States, which rested for its efficacy on the
good faith of the parties, and had no other compulsory operation than
a resort to arms against a delinquent member, was a "federal"
government. This was the principle of the Confederation. At this early
stage of their deliberations, the idea which was intended by those who
favored a change of that principle, when they spoke of a "national"
government, was one that would be a supreme power with respect to
certain national objects committed to it, and that would have some
kind of direct compulsory action upon individuals. This distinction
was understood by all to be real and important. It led directly to the
question of the powers of the Convention, and formed the early line of
division between those who desired to adhere to the existing system,
and those who aimed at a radical change. The former admitted the
necessity for a more effective government, and supposed that the
Confederation could be made so by distributing its powers into the
three great departments of a legislative, executive, and judiciary;
but they did not suggest any mode by which those powers could be made
supreme over the authority of the separate States. The latter
contended, that there could be no such thing as government unless it
were a supreme power, and that there could be but one supreme power
over the same subjects in the same community; that supreme power could
not from the nature of things act on the States collectively, in the
usual and peaceful mode in which the operations of government ought to
be conducted, but that it must be able to reach individuals; and that,
as the Confederation could not operate in this way, the distribution
of its powers into distinct departments would be no improvement upon
the present condition of things.

But when the distinction between a national and a federal government
had been so far developed, the subject was still left in a great
degree vague and indeterminate. What was to mark this distinction as
real, and give it practical effect? By what means was the government,
which was now, as all admitted, a mere federal league between
sovereign States, to become, in any just sense, national? The idea of
a nation implies the existence of a people united in their political
rights, and possessed of the same political interests. A national
government must be one that exercises the political rights, and
protects the political interests, of such a people. But, hitherto, the
people of the United States had been divided into distinct
sovereignties; and although by the Articles of Confederation some
portion of the sovereign power of each of the separate States had
been vested in a general government, that government had been found
inefficient, and incapable of resisting the great power that had been
reserved to the respective States, and was constantly exerted by them.
The difficulty was, that the constituent parties to the federal union
were themselves political governments and sovereigns; the people of
the States had no direct representation, and no direct suffrage, in
the general legislature; and as in a republican government the
representation and the suffrage must determine its character, it
became obvious that, in order to establish a national government that
would embrace the political rights and interests of the people
inhabiting the States, the basis of representation and the rule of
suffrage must be changed.

It being assumed that the new government was to be divided into the
three departments of the legislative, executive, and judiciary,
several questions at once presented themselves with regard to the
constitution of the national legislature. Was it to consist of one or
of two houses? and if the latter, what was to be the representation
and the rule of suffrage in each?

The resolutions of Governor Randolph raised the question as to the
rule of suffrage, before the committee had determined on the division
of the legislative power into two branches. One of his propositions
was, "That the rights of suffrage in the national legislature ought to
be proportioned to the quotas of contribution, or to the number of
free inhabitants, as the one or the other rule may seem best in
different cases." This was no sooner propounded, than a difficulty was
suggested by the deputies of the State of Delaware, which threatened
to impede the whole action of the Convention. They declared that they
felt restrained by their commissions from assenting to any change of
the rule of suffrage, and announced their determination to retire from
the Convention if such a change were adopted. The firmness and address
of Madison and Gouverneur Morris surmounted this obstacle. They
declared that the proposed change was absolutely essential to the
formation of a national government; but they consented to postpone the
question, having ascertained that it would finally be carried.[12]

The committee thereupon immediately determined that the national
legislature should consist of two branches,[13] and proceeded to
consider the mode of representation and suffrage in both. As the
discussions proceeded, the members became divided into two parties
upon the general subject; the one was for a popular basis and a
proportionate representation in both branches; the other was in favor
of an equal representation by States in both. The first issue between
them was made upon the House, or what was termed the first branch of
the legislature. On the one side it was urged, that to give the
election of this branch to the people of the States would make the new
government too democratic; that the people were unsafe depositaries
of such a power, not because they wanted virtue, but because they were
liable to be misled; and that the State legislatures would be more
likely to appoint suitable persons. On the other hand, it was admitted
that an election of the more numerous branch of the national
legislature by the people would introduce a true democratic principle
into the government, and this, it was said, was necessary. It was
urged that this branch of the legislature ought to know and sympathize
with every part of the community, and ought therefore to be taken, not
only from different parts of the republic, but also from different
districts of the larger members of it. The broadest possible basis, it
was said, ought to be given to the new system; and as that system was
to be republican, a direct representation of the people was
indispensable. To increase the weight of the State legislatures, by
making them electors of the national legislature, would only
perpetuate some of the worst evils of the Confederation.

A decided majority of the States sustained the election of the first
branch of the national legislature by the people.[14] Great efforts
were, however, subsequently made to change this decision; and the
discussion which ensued on a motion that this branch should be elected
by the State legislatures, throws much light upon the nature of the
government which the friends of an election by the people were aiming
to establish. From that discussion it appears that the idea was
already entertained of forming a government that should have a
vigorous authority derived directly from the people of the
States,--one that should possess both the force and the sense of the
people at large. For the formation of such a government one of two
courses was necessary: either to abolish the State governments
altogether; or to leave them in existence, and to regard the people of
each State as competent to withdraw from their local governments such
portions of their political power as they might see fit to bestow upon
a national government. The latter plan was undoubtedly a novelty in
political science; for no system of government had yet been
constructed in which the individual stood in the relation of subject
to two distinct sovereignties, each possessed of a distinct sphere,
and each supreme in its own sphere. But if the American doctrine were
true, that all supreme power resides originally in the people, and
that all governments are constituted by them as the agents and
depositaries of that power, there could be no incompatibility in such
a system. The people who had deposited with a State government the
sovereign power of their community, could withdraw it at their
pleasure; and as they could withdraw the whole, they could withdraw a
part of it. If a part only were withdrawn, or rather, if the supreme
power in relation to particular objects were to be taken from the
State governments, and vested in another class of agents, leaving the
authority of the former undiminished except as to those particular
objects, the individual might owe a double allegiance, but there could
be no confusion of his duties, provided the powers withdrawn and
revested were clearly defined.

The advocates of a national government, besides and beyond the
intrusting of a particular jurisdiction to that government, wished to
make it certain that its legislative power, in each act of
legislation, should rest on the direct authority of the people. For
this purpose they desired to avoid all agency of the State governments
in the appointment of the members of the national legislature. They
held this to be necessary for two reasons. In the first place, they
said that in a national government the people must be represented; and
that in a republican system the real constituent should act directly,
and without any intermediate agency, in the appointment of the
representative. In the second place, they deduced from the objects of
a national government the necessity for excluding the agency of the
State governments in the appointment of those who were to exercise its
legislative power. Those objects, they contended, were not fully
stated by their opponents. The latter generally regarded the objects
of the Union as confined to defence against foreign danger and
internal disorder; the power to make binding treaties with foreign
countries; the regulation of commerce, and the power to derive
revenues therefrom.[15] The former insisted that another great object
must be, to provide more effectually for the security of private
rights, and the steady dispensation of justice. Mr. Madison declared
that republican liberty could not long exist under the abuses of it
which had been practised in some of the States, where the
uncontrollable power of a majority had enabled debtors to elude their
creditors, the holders of one species of property to oppress the
holders of another species, and where paper money had become a
stupendous fraud. These evils had made it manifest that the power of
the State governments, even in relation to some matters of internal
legislation, must be to some extent restrained; and in order
effectually to restrain it, the national government must, in the
construction of its departments, as well as in its powers, be derived
directly from the people.[16]

These views again prevailed as to the first branch, and Mr. Pinckney's
proposition for electing that branch by the State legislatures was
negatived by a vote of three States in the affirmative, and eight in
the negative.[17]

But as soon as the impracticability of abolishing the State
governments was seen and admitted,--and it was at once both seen and
admitted by some of the strongest advocates for a national
government,--it became apparent to a large part of the assembly, that
to exclude those governments from all agency in the election of both
branches of the national legislature would be inexpedient. It would
obviously have been theoretically correct to have given the election
of both the Senate and the House to the people of the States,
especially when it was intended to adhere to the principle of a
proportionate representation of the people of the States in both
branches.[18] But the necessity for providing some means by which the
States, as States, might defend themselves against encroachments of
the national government, made it apparent that they must become, in
the election, a constituent part of the system. No mode of doing this
presented itself, except to give the State legislatures the
appointment of the less numerous branch of the national
legislature,--a provision which was finally adopted in the committee
by the unanimous vote of the States.[19]

The results thus reached had settled for the present the very
important fact, that the people of the States were to be represented
in both branches of the legislature; that for the one they were to
elect their representatives directly, and for the other they were to
be elected by the legislature of the State.

But when it had been ascertained by whom the members of the two
branches were to be elected, there remained to be determined the
decisive question, which was to mark still more effectively the
distinction between a purely national and a purely federal government,
namely, the rule of suffrage, or the ratio of representation in the
national legislature.

The rule of suffrage adopted in the first Continental Congress was, as
we have seen, the result of necessity; for it was impossible to
ascertain the relative importance of each Colony; and, moreover, that
Congress was in fact an assembly of committees of the different
Colonies, called together to deliberate in what mode they could aid
each other in obtaining a redress of their several grievances from
Parliament and the Crown. But while, from the necessity of the case,
they assigned to each Colony one vote in the Congress, they looked
forward to the time when the relative wealth or population of the
Colonies must regulate their suffrage in any future system of
continental legislation.[20] The character of the government formed by
the Articles of Confederation had operated to postpone the arrival of
this period; because it was in the very nature of that system that
each State should have an equal voice with every other. This system
was the result of the formation of the State governments, each of
which had become the present depositary of the political powers of an
independent people.

But if this system were to be changed,--if the people of the States
were to be represented in each branch of the national legislature,--some
ratio of representation must be adopted, or the idea of connecting them
as a nation with the government that was to be instituted must be
abandoned. It was obviously for the interest of the larger States, such
as Virginia, Pennsylvania, and Massachusetts,--then the three leading
States in point of population,--to have a proportionate representation
of their whole inhabitants, without reference to age, sex, or condition.
On the other hand, it was for the interest of the smaller States to
insist on an equality of votes in the national legislature, or at least
on the adoption of a ratio that would exclude some portions of the
population of the great States. Some of the lesser States were
exceedingly strenuous in their efforts to accomplish these objects, and
more than once, in the course of the proceedings, declared their purpose
to form a union on no other basis.

In this posture of things the alternatives were, either to form no
union at all, or only to form one between the large States willing to
unite on the basis of proportionate representation; or to abolish the
State governments, and throw the whole into one mass; or to leave the
distinctions and boundaries between the different States, and adopt
some equitable ratio of suffrage, as between the people of the several
States, in the national legislature. The latter course was adopted in
the committee, as to the first branch, by a vote of seven States in
the affirmative, against three in the negative, one being
divided.[21]

The question was then to be determined, by what ratio the
representation of the different States should be regulated; and here
again any one of several expedients might be adopted. The basis of
representation might be made to consist of the whole number of voters,
or those on whom the States had conferred the elective franchise; or
it might be confined to the white inhabitants, excluding all other
races; or it might include all the free inhabitants of every race,
excluding only the slaves; or it might embrace the whole population of
each State. Some examination of each of these plans will illustrate
the difficulties which had to be encountered.

To have adopted the number of legal voters of the States as the ratio
of representation in the national legislature would have been to adopt
a system in which there were great existing inequalities. The elective
franchise had been conferred in the different States upon very
different principles; it was very broad in some of the States, and
much narrower in others, according to their peculiar policy and
manners. These inequalities could scarcely have been removed; for the
right of suffrage in some of the States was more or less connected
with their systems of descent and distribution of property, and those
systems could not readily be changed, so as to adapt the condition of
society to the new interest of representation and influence in the
general government. This plan was, therefore, out of the question.

It was nearly as impracticable, also, to confine the basis of
representation to the white inhabitants of the States. Some of the
States--such as Massachusetts, Connecticut, Rhode Island, New York,
and Pennsylvania, in which slavery was already, or was ultimately to
become, extinct, and Maryland, North Carolina, and Virginia, where
slavery was likely to remain--had large numbers of free blacks. These
inhabitants, who were regarded as citizens in some of the States, but
not in others, were in all a part of their populations, contributing
to swell the aggregate of the numbers and wealth of the State, and
thus to raise it in the scale of relative rank. Their personal
consequence, or social rank, was a thing too remote for special
inquiry. A State that contained five or ten thousand of these
inhabitants might well say, that, although of a distinct race, they
formed an aggregate portion of its free population, too large to be
omitted without opening the door to inquiries into the condition and
importance of other classes of its free inhabitants. This was the
situation of all the Northern States except New Hampshire, as well as
of all the Middle and Southern States; and it was especially true of
Virginia, which had nearly twice as many free colored persons as any
other State in the Union.

It was equally impracticable to form a national government in which
the basis of representation should be confined to the free inhabitants
of the States. The five States of Maryland, Virginia, North Carolina,
South Carolina, and Georgia, including their slaves, were found by the
first census, taken three years after the formation of the
Constitution, to contain a fraction less than one half of the whole
population of the Union.[22] In three of those States the slaves were
a little less than half, and in two of them they were more than half,
as numerous as the whites.[23] There was no good reason,
therefore,--except the theoretical one that a slave can have no actual
voice in government, and consequently does not need to be
represented,--why a class of States containing nearly half of the
whole population of the confederacy should consent to exclude such
large masses of their populations from the basis of representation,
and thereby give to the free inhabitants of each of the other eight
States a relatively larger share of legislative power than would fall
to the free inhabitants of the States thus situated. The objection
arising from the political and social condition of the slaves would
have had great weight, and indeed ought to have been decisive of the
question, if the object had been to efface the boundaries of the
States, and to form a purely consolidated republic. But this purpose,
if ever entertained at all, could not be followed by the framers of
the Constitution. They found it indispensable to leave the States
still in possession of their distinct political organizations, and of
all the sovereignty not necessary to be conferred on the central
power, which they were endeavoring to create by bringing the free
people of these several communities into some national relations with
each other. It became necessary, therefore, to regard the peculiar
social condition of each of the States, and to construct a system of
representation that would place the free inhabitants of each distinct
State upon as near a footing of political equality with the free
inhabitants of the other States as might, under such circumstances, be
practicable. This could only be done by treating the slaves as an
integral part of the population of the States in which they were
found, and by assuming the population of the States as the true basis
of their relative representation.

It was upon this idea of treating the slaves as inhabitants, and not
as chattels, or property, that the original decision was made in the
committee of the whole, by which it was at first determined to include
them.[24] Having decided that there ought to be an equitable ratio of
representation, the committee went on to declare that the basis of
representation ought to include the whole number of white and other
free citizens and inhabitants, of every age, sex, and condition,
including those bound to servitude for a term of years; and they then
added to the population thus described three fifths of all other
persons not comprehended in that description, except Indians not
paying taxes. The proportion of three fifths was borrowed from a rule
which had obtained the sanction of nine States in Congress, in the
year 1783, when it was proposed to change the basis of contribution by
the States to the expenses of the Union from property to
population.[25] At that time, the slaveholding States had consented
that three fifths of their slaves should be counted in the census
which was to fix the amount of their contributions; and they now asked
that, in the apportionment of representatives, these persons might
still be regarded as inhabitants of the State, in the same ratio. The
rule was adopted in the committee, with the dissent of only two
States, New Jersey and Delaware; but on the original question of
substituting an equitable ratio of representation for the equality of
suffrage that prevailed under the Confederation, New York united with
New Jersey and Delaware in the opposition, and the vote of Maryland
was divided.

The next step was to settle the rule of suffrage in the Senate; and
although it was earnestly contended that the smaller States would
never agree to any other principle than an equality of votes in that
body,[26] it was determined in the committee, by a vote of six States
against five, that the ratio of representation should be the same as
in the first branch.[27]

Thus it appears that originally a majority of the States were in favor
of a numerical representation in both branches. The three States of
Virginia, Pennsylvania, and Massachusetts, the leading States in
population, and with them North Carolina, South Carolina, and Georgia,
found it at present for their interest to adopt this basis for both
houses of the national legislature. It was a consequence of the
principle of numerical representation, that the slaves should be
included; and it does not appear that at this time any delegate from a
Northern State interposed any objection, except Mr. Gerry of
Massachusetts, who regarded the slaves as "property," and said that
the cattle and horses of the North might as well be included. But the
State which he represented was at this time pressing for the rights of
population, and for a system in which population should have its due
influence; and her vote, as well as that of Pennsylvania, was
accordingly given for the principle which involved an admission of the
slaves into the basis of representation, and for the proportion which
the slave States were willing to take.

These transactions in the committee of the whole are quite important,
because they show that the original line of division between the
States, on the subject of representation, was drawn between the States
having the preponderance of population and the States that were the
smallest in point of numbers. When, and under what circumstances, this
line of division changed, what combinations a nearer view of all the
consequences of numerical representation may have brought about, and
how the conflicting interests were finally reconciled, will be seen
hereafter. What we are here to record is the declaration of the
important principle, that the legislative branch of the government was
to be one in which the free people of the States were to be
represented, and to be represented according to the numbers of the
inhabitants which their respective States contained, counting those
held in servitude in a certain ratio only.

The general principles on which the powers of the national legislature
were to be regulated, were declared with a great degree of unanimity.
That it ought to be invested with all the legislative powers belonging
to the Congress of the Confederation was conceded by all. This was
followed by the nearly unanimous declaration of a principle, which was
intended as a general description of a class of powers that would
require subsequent enumeration, namely, that the legislative power
ought to embrace all cases to which the State legislatures were
incompetent, or in which the harmony of the United States would be
interrupted by the exercise of State legislation. But the committee
also went much farther, and without discussion or dissent declared
that there ought also to be a power to negative all laws passed by the
several States contravening, in the opinion of the national
legislature, the Articles of Union, or any treaties made under the
authority of the Union.[28]

The somewhat crude idea of making a negative on State legislation a
legislative power of the national government, shows that the admirable
discovery had not yet been made of exercising such a control through
the judicial department. Without such a control lodged somewhere, the
national prerogatives could not be defended, however extensive they
might be in theory. There had been, as Mr. Madison well remarked, a
constant tendency in the States to encroach on the federal authority,
to violate national treaties, to infringe the rights and interests of
each other, and to oppress the weaker party within their respective
jurisdictions. The expedient that seemed at first to be the proper
remedy, and, as was then supposed, the only one that could be employed
as a substitute for force, was to give the general government a power
similar to that which had been exercised over the legislation of the
Colonies by the crown of England, before the Revolution; and there
were some important members of the Convention who at this time thought
that this power ought to be universal.[29] They considered it
impracticable to draw a line between the cases proper and improper for
the exercise of such a negative, and they argued from the correctness
of the principle of such a power, that it ought to embrace all cases.

But here the complex nature of the government which they were obliged
to establish made it necessary to depart from the theoretical
correctness of a general principle. The sovereignty of the States
would be entirely inconsistent with a power in the general government
to control their whole legislation. As the direct authority of the
national legislature was to extend only to certain objects of national
concern, or to such as the States were incompetent to provide for, all
the political powers of the States, the surrender of which was not
involved in the grant of powers to the national head, must remain; and
if a general superintendence of State legislation were added to the
specific powers to be conferred on the central authority, there would
be in reality but one supreme power in all cases in which the general
government might see fit to exercise its prerogative. The just and
proper sphere of the national government must be the limit of its
power over the legislation of the States. In that sphere it must be
supreme, as the power of each State within its own sphere must also be
supreme. Neither of them should encroach upon the prerogatives of the
other; and while it was undoubtedly necessary to arm the national
government with some power to defend itself against such encroachments
on the part of the States, there could be no real necessity for making
this power extend beyond the exigencies of the case. Those exigencies
would be determined by the objects that might be committed to the
legislation of the central authority; and if a mode could be devised,
by which the States could be restrained from interfering with or
interrupting the just exercise of that authority, all that was
required would be accomplished.[30]

But to do this by means of a negative that was to be classed among the
legislative powers of the new government, was to commit the subject of
a supposed conflict between the rights and powers of the State and the
national governments to an unfit arbitration. Such a question is of a
judicial nature, and belongs properly to a department that has no
direct interest in maintaining or enlarging the prerogatives of the
government whose powers are involved in it.

But the framers of the Constitution had come fresh from the
inconveniences and injustice that had resulted from the unrestrained
legislative powers of the States. Some of them believed it, therefore,
to be necessary to make the authority of the United States paramount
over the authority of each separate State; and a negative upon State
legislation, to be exercised by the legislative branch of the
national government, seemed to be the readiest way of accomplishing
the object. Some of the suggestions of the mode in which this power
was to operate strike us, at the present day, as singularly strange.
No less a person than Mr. Madison, in answer to the objections arising
from the practical difficulties in subjecting all the legislation of
all the States to the revision of a central power, thought at this
time that something in the nature of a commission might be issued into
each State, in order to give a temporary assent to laws of urgent
necessity. He suggested also that the negative might be lodged in the
Senate, in order to dispense with constant sessions of the more
numerous branch.

But the radical objection to any plan of a negative on State
legislation, as a legislative power of the general government, was,
that it would not in fact dispense with the use of force against a
State in the last resort. If, after the exercise of the power, the
State whose obnoxious law had been prohibited should see fit to
persist in its course, force must be resorted to as the only ultimate
remedy. How different, how wise, was the expedient subsequently
devised, when the appropriate office of the judicial power was
discerned,--a power that waits calmly until the clashing authorities
of the State and the nation have led to a conflict of right or duty in
some individual case, and then peacefully adjudicates, in a case of
private interest, the great question, with which of the two
governments resides the power of prescribing the paramount rule of
conduct for the citizen! Disobedience on the part of the State may, it
is true, still follow after such an adjudication, and against an open
array of force on the one side nothing but force remains to be
employed on the other. But the great preventive of this dread
necessity is found in the fact, that there has been an adjudication by
a tribunal that commands the confidence of all, and in the moral
influence of judicial determinations over a people accustomed to
submit not only their interests, but their feelings even, to the
arbitrament of juridical discussion and decision.

       *       *       *       *       *

TABLE

EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE
CENSUS OF 1790.

N. B.--In this abstract Maine is not included in Massachusetts, nor
Kentucky and Tennessee in the States from which they were severed.

  +----------------+-----------+---------------+---------+-----------+
  |                |   Whites. | Free Colored. | Slaves. |    Total. |
  |                +-----------+---------------+---------+-----------+
  |New Hampshire,  |   141,111 |     630       |     158 |   141,899 |
  |Massachusetts,  |   373,254 |    5,463      |   ..... |   378,717 |
  |Rhode Island,   |    64,689 |    3,469      |     952 |    69,110 |
  |Connecticut,    |   232,581 |    2,801      |   2,759 |   238,141 |
  |New York,       |   314,142 |    4,654      |  21,324 |   340,120 |
  |New Jersey,     |   169,954 |    2,762      |  11,423 |   184,139 |
  |Pennsylvania,   |   424,099 |    6,537      |   3,737 |   434,373 |
  |Delaware,       |    46,310 |    3,899      |   8,887 |    59,096 |
  |Maryland,       |   208,649 |    8,043      | 103,036 |   319,728 |
  |Virginia,       |   442,115 |   12,765      | 293,427 |   748,307 |
  |North Carolina, |   288,204 |    4,975      | 100,572 |   393,751 |
  |South Carolina, |   140,178 |    1,801      | 107,094 |   249,073 |
  |Georgia,        |    52,886 |      398      |  29,264 |    82,548 |
  |                +-----------+---------------+---------+-----------+
  |    Aggregate,  | 2,898,172 |   58,197      | 682,633 | 3,639,002 |
  +----------------+-----------+---------------+---------+-----------+

Total population of the eight States in 1790, in which slavery had
been or has since been abolished, 1,845,595.

Total population of the five States in 1790, in which slavery existed,
and still exists, 1,793,407.

FOOTNOTES:

[10] Edmund Randolph. See _ante_, Vol. I. p. 480.

[11] Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina,
South Carolina, _ay_, 6; Connecticut, _no_, 1; New York divided
(Colonel Hamilton _ay_, Mr. Yates _no_). Madison, Elliot, V. 132, 134.

[12] Madison, Elliot, V. 134, 135.

[13] Ibid. 135. The vote of Pennsylvania, in compliance with the
wishes of Dr. Franklin, was given for a single house.

[14] Massachusetts, New York, Pennsylvania, Virginia, North Carolina,
Georgia, _ay_, 6; New Jersey, South Carolina, _no_, 2; Connecticut and
Delaware divided.

[15] See Mr. Sherman's remarks, made in committee, June 6; Madison,
Elliot, V. 161.

[16] See Mr. Madison's views, as stated in his debates, Elliot, V.
161.

[17] Connecticut, New Jersey, South Carolina, _ay_, 3; Massachusetts,
New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
Georgia, _no_, 8.

[18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to
have favored it.

[19] Madison, Elliot, V. 170.

[20] _Ante_, Vol. I. Book I. ch. I. pp. 15-17.

[21] Massachusetts, Connecticut, Pennsylvania, Virginia, North
Carolina, South Carolina, Georgia, _ay,_ 7; New York, New Jersey,
Delaware, _no_, 3; Maryland, divided.

[22] They contained 1,793,407 inhabitants; the other eight States had
1,845,595 when the federal census of 1790 was taken.

[23] See the census of 1790, _post_, p. 55.

[24] The population of the States was adopted in the committee of the
whole, instead of their quotas of contribution, which, in one or
another form, was the alternative proposition. The slaves were
included, in a proportion accounted for in the text, as a part of the
aggregate _population_; and it was not until a subsequent stage of the
proceedings that this result was defended on the ground of their
forming part of the aggregate _wealth_ of the State.

[25] _Ante_, Vol. I. Book II. ch. III. p. 213, note 2, where the
origin of the proportion of three fifths is explained.

[26] By Mr. Sherman and Mr. Ellsworth.

[27] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey,
Delaware, Maryland, _no_, 5. Elliot, V. 182.

[28] Madison, Elliot, V. 139.

[29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the
other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler
strenuously opposed this plan.

[30] Accordingly, a proposition to extend the negative on State
legislation to all cases received the votes of three States only, viz.
Massachusetts, Pennsylvania, and Virginia.



CHAPTER III.

CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.


The construction of a national executive, although not surrounded by
so many inherent practical difficulties as the formation of the
legislative department, was likely to give rise to a great many
opposite theories. The questions, of how many persons the executive
ought to consist, in what mode the appointment should be made, and
what were to be its relations to the legislative power, were attended
with great diversities of opinion.

The question whether the executive should consist of one, or of more
than one person, was likely to be influenced by the nature of the
powers to be conferred upon the office. Foreseeing that it must
necessarily be an office of great power, some of the members of the
Convention thought that a single executive would approach too nearly
to the model of the British government. These persons considered that
the great requisites for an executive department--vigor, despatch, and
responsibility--could be found in three persons as well as in one.
Those, on the other hand, who favored the plan of a single magistrate,
maintained that the prerogatives of the British monarchy would not
necessarily furnish the model for the executive powers; and that unity
in the executive would be the best safeguard against tyranny.

But this point connected itself with the question, whether the
executive should be surrounded by a council, and the latter
proposition again involved the consideration of the precise relation
of the executive to the legislative power. That a negative of some
kind upon the acts of the legislature was essential to the
independence of the executive, was a truth in political science not
likely to escape the attention of many of the members of the
Convention. Whether it should be a qualified or an absolute negative
was the real, and almost the sole question; for although there were
some who held the opinion that no such power ought to be given, it was
evident from the first that its necessity was well understood by the
larger part of the assembly. In the first discussion of this subject,
the negative was generally regarded as a means of defence against
encroachments of the legislature on the rights and powers of the other
departments. It was supposed that, although the boundaries of the
legislative authority might be marked out in the Constitution, the
executive would need some check against unconstitutional interference
with its own prerogatives; and that, as the judicial department might
be exposed to the same dangers, the power of resisting these also
could be best exercised by the executive. But an absolute negative for
any purpose was favored by only a very few of the members, and the
proposition first adopted was to give the executive alone a
revisionary check upon legislation, which should not be absolute if it
were afterwards overruled by two thirds of each branch of the
legislature.[31]

But inasmuch as this provision would leave the precise purposes of the
check undetermined, and in order, as it would seem, to subject the
whole of the legislative acts to revision and control by the
executive, some of the members desired that the judiciary, or a
convenient number of the judges, might be added to the executive as a
council of revision. Among these persons were Mr. Madison and Mr.
Wilson. The former expressed a very decided opinion, that, whether the
object of a revisionary power was to restrain the encroachments of the
legislature on the other departments, or on the rights of the people
at large, or to prevent the passage of laws unwise in principle or
incorrect in form, there would be great utility in annexing the wisdom
and weight of the judiciary to the executive. But this proposition was
rejected by a large majority of the States, and the power was left by
the committee as it had been settled by their former decision. These
proceedings, however, do not furnish any decisive evidence of the
nature and purpose of the revisionary check.

But before this feature of the Constitution had been settled by the
committee, they had determined on a mode in which the executive should
be appointed. It is singular that the idea of an election of the
executive by the people, either mediately or immediately, found so
little favor at first, that on its first introduction it received the
votes of but two States. Since the executive was to be the agent of
the legislative will, it was argued by some members that it ought to
be wholly dependent, and ought therefore to be chosen by the
legislature. The experience of New York and of Massachusetts, on the
other hand,--where the election of the first magistrate by the people
had been successfully practised,--and the danger that the legislature
and the candidates might play into each other's hands, and thus give
rise to constant intrigues for the office, were the arguments employed
by others. Upon the introduction of a proposition that the States be
divided into districts, for the election by the people of electors of
the executive, two States only recorded their votes in its favor, and
eight States voted against it.[32] By the vote of eight States it was
then determined that the executive should be elected by the national
legislature for the term of seven years;[33] and subsequently it was
determined that the executive should be ineligible to a second term of
office, and should be removable on impeachment and conviction of
malpractice or neglect of duty. A single executive was agreed to by a
vote of seven States against three.[34] After the mode in which the
negative was to be exercised had been settled, an attempt was made to
change the appointment, and vest it in the executives of the States.
But this proposal was decisively rejected.[35]

The judiciary was the next department of the proposed plan of
government that remained to be provided. Like the executive, it was a
branch of sovereign power unknown to the Confederation. The most
palpable defect of that government, as I have more than once had
occasion to observe, was the entire want of sanction to its laws. It
had no judicial system of its own for decree and execution against
individuals. All its legislation, both in nature and form, prescribed
duties to States. The observance of these duties could only be
enforced against the parties on whom they rested, and this could be
done only by military power. But it was the peculiar and anomalous
situation of the American Confederacy, that the power to employ force
against its delinquent members had not been expressly delegated to it
by the Articles of Union; and that it could not be implied from the
general purposes and provisions of that instrument, without a seeming
infraction of the article by which the States had reserved to
themselves every power, jurisdiction, and right not "expressly"
delegated to the United States. If this objection was well
founded,--and it was universally held to be so,--we may well concur
in the remark of The Federalist, that "the United States presented the
extraordinary spectacle of a government destitute even of the shadow
of constitutional power to enforce the execution of its own laws."[36]

The Confederation, too, had found it to be entirely impracticable to
rely on the tribunals of the States for the execution of its laws.
Such a reliance in a confederated government presupposes that the
party guilty of an infraction of the laws or ordinances of the
confederacy will try, condemn, and punish itself. The whole history of
our Confederation evinces the futility of laws requiring the obedience
of States, and proceeding upon the expectation that they will enforce
that obedience upon themselves.

The necessity for a judicial department in the general government was,
therefore, one of the most prominent of those "exigencies of the
Union," for which it was the object of the present undertaking to
provide. The place which that department was to occupy in a national
system could be clearly deduced from the office of the judiciary in
all systems of constitutional government. That office is to apply to
the subjects of the government the penalties inflicted by the
legislative power for disobedience of the laws. Disobedience of the
lawful commands of a government may be punished or prevented in two
modes. It may be done by the application of military power, without
adjudication; or it may be done through the agency of a tribunal,
which adjudicates, ascertains the guilty parties, and applies to them
the coercion of the civil power. This last is the peculiar function of
a judiciary; and in order that it may be discharged effectually, the
judiciary that is to perform this office must be a part of the
government whose laws it is to enforce. It is essential to the
supremacy of a government, that it should adjudicate on its own
powers, and enforce its own laws; for if it devolves this prerogative
on another and subordinate authority, the final sanction of its laws
can only be by a resort to military power directed against those who
have refused to obey its lawful commands.

One of the leading objects in forming the Constitution was to obtain
for the United States the means of coercion, without a resort to force
against the people of the States collectively. Mr. Madison, at a very
early period in the deliberations of the Convention, declared that the
use of force against a State would be more like a declaration of war
than an infliction of punishment, and would probably be considered by
the party attacked as a dissolution of all previous compacts by which
it might be bound.[37] At his suggestion, a clause in Governor
Randolph's plan authorizing the use of force against a delinquent
member of the confederacy was laid aside, in order that a system
might be framed which would render it unnecessary. This could be done
only by making the authority of the government supreme in relation to
the rights and powers that might be committed to it; and it could be
made so only by applying its legislation to individuals through the
intervention of a judiciary. A confederacy whose legislative power
operates only upon States, or upon masses of people in a collective
capacity, can be supreme only so far as it can employ superior force;
and when the issue that is to determine the question of supremacy is
once made up in that form, there is an actual civil war.

The introduction, therefore, of a judicial department into the new
plan of government, of itself evinces an intention to clothe that
government with powers that could be executed peacefully, and without
the necessity of putting down the organized opposition of subordinate
communities. By their resort to this great instrumentality, we may
perceive how much, in this particular, the framers of the Constitution
were aided by the spirit and forms of the institutions which the
people of these States had already framed for their separate
governments. The common law, which the founders of all these States
had brought with them to this country, had accustomed them to regard
the judiciary as clothed with functions in which two important objects
were embraced. By the known course of that jurisprudence the judiciary
is, in the first place, the department which declares the construction
of the laws; and, in the second place, when that department has
announced the construction of a law, it is not only the particular
case that is settled, but the rule is promulgated that is to determine
all future cases of the same kind arising under the same law. Thus the
judiciary, in governments whose adjudications proceed upon the course
of the common law, becomes not merely the arbitrator in a particular
controversy, but the department through which the government
interprets the rule of action prescribed by the legislature, and by
which all its citizens are to be guided. This office of the judicial
department had long been known in all the States of the Union at the
time of the formation of the national Constitution.

By the introduction of this department into their plan of government,
the framers of the Constitution obviously intended that it should
perform the same office in their national system which the
corresponding department had always fulfilled in the States. No other
function of a judiciary was known to the people of the United States,
and this function was both known and deemed essential to a
well-regulated liberty. It was known that the judicial department of a
government is that branch by which the meaning of its laws is
ascertained, and applied to the conduct of individuals. To effect
this, it was introduced into the system whose gradual formation and
development we are now examining.

The committee not only declared that this department, like the
legislative and the executive, was to be "supreme," but they
proceeded to make it so. One of the first questions that arose
concerning the construction of the judiciary was, whether it should
consist solely of one central tribunal, to which appeals might be
carried from the State courts, or should also embrace inferior
tribunals to be established within the several States. The latter plan
was resisted as an innovation, which, it was said, the States would
not tolerate. But the necessity for an effective judiciary
establishment, commensurate with the legislative authority, was
generally admitted, and a large majority of the States were found to
be in favor of conferring on the national legislature power to
establish inferior tribunals;[38] while the provision for a supreme
central tribunal was to be made imperative by the Constitution.

The intention of the committee also to make the judicial coextensive
with the legislative authority, appears from the definition which they
gave to both. Upon the national legislature they proposed to confer,
in addition to the rights vested in Congress by the Confederation,
power to legislate in all cases to which the separate States were
incompetent, or in which the harmony of the United States might be
interrupted by the exercise of individual legislation; and the further
power to negative all laws passed by the several States contravening,
in the opinion of the national legislature, the Articles of Union, or
any treaties subsisting under the authority of the Union. The
jurisdiction of the national judiciary it was declared should extend
to all cases which respect the collection of the national revenue, and
to impeachments of national officers; and then the comprehensive
addition was made of "questions which involve the national peace and
harmony." This latter provision placed the general objects, which it
was declared ought to be embraced by the legislative power, within the
cognizance of the judiciary. Those objects were not yet described in
detail, the purpose being merely to settle and declare the principles
on which the powers of both departments ought to be founded.

But, as we have already had occasion to see, the idea of vesting in
the judicial department such control over the legislation of the
separate States as might be surrendered by them to the national
government, was not yet propounded. The principle which was to
ascertain the extent of that control was already introduced and acted
upon, namely, that it should embrace all laws of the States which
might conflict with the Constitution, or the treaties made under the
national authority. The plan at present was, as we have seen, to treat
this as a legislative power, to be executed by the direct control of a
negative. But a nearer view of the great inconveniences of such an
arrangement, and the general basis of the jurisdiction already marked
out for the national judiciary, led to the development of the
particular feature which was required as a substitute for direct
interference with the legislative powers of the States. In truth, the
important principle which proposed to extend the judicial authority to
questions involving the national peace and harmony, embraced all the
power that was required; and it only remained to be seen that the
exercise of that power by the indirect effect of judicial action on
the laws of the States after they had been passed, was far preferable
to a direct interference with those laws while in the process of
enactment.

The committee, with complete unanimity, determined that the judges of
the supreme tribunal should hold their offices during good
behavior.[39] This tenure of office was taken from the English
statutes, and from the constitutions of some of the States which had
already adopted it. The commissions of the judges in England, until
the year 1700, were prescribed by the crown; and although they were
sometimes issued to be held during good behavior, they were generally
issued during the pleasure of the crown, and it was always optional
with the crown to adopt the one or the other tenure, as it saw fit.
But in the statute passed in the thirteenth year of the reign of
William III., which finally secured the ascendency of the Protestant
religion in that country, and made other provisions for the rights and
liberties of the subject, it was enacted that judges' commissions
should be made during good behavior, and that their salaries should be
ascertained and established; but it was made lawful for the crown to
remove them upon the address of both houses of Parliament.[40] Still,
however, it was always considered that the commissions of the judges
expired on the death of the king; and for the purpose of preventing
this, and in order to make the judges more effectually independent, a
new statute, passed in the first year of the reign of George III.,
declared that the commissions of the judges should continue in force
during their good behavior, notwithstanding the demise of the crown;
and that such salaries as had been once granted to them should be paid
in all future time, so long as their commissions should remain in
force. The provision which made them removable by the crown on the
address of both houses of Parliament was retained and re-enacted.[41]

In framing the Constitution of the United States, the objectionable
feature of the English system was rejected, and its valuable
provisions were retained. No one, at the stage of the proceedings
which we are now examining, proposed to make the judges removable on
the address of the legislature; and although at a much later period
this provision was brought forward, it received the vote of a single
State only. The first determination of the Convention, in committee of
the whole, was, that the judges should hold their offices during good
behavior; that they should receive punctually, at stated times, a
fixed compensation for their services, in which no _increase_[42] or
diminution should be made so as to affect the persons actually in
office at the time.

The appointment of the judges was by general consent, at this stage of
the proceedings, vested in the Senate.

       *       *       *       *       *

NOTE ON THE JUDICIAL TENURE.

     The English historians and juridical writers have not given a
     very satisfactory account of the purpose for which the power
     of removal on the address of the two Houses of Parliament was
     incorporated with the provision which gave the judges their
     commissions during good behavior. It is obvious that, if the
     power of removal is to be regarded as an unqualified power,
     to be exercised for any cause, or without the existence of
     any cause, the office is held during the pleasure of the
     legislative and executive branches of the government, and not
     during the official good conduct of the incumbent. In this
     view of it, therefore, the provision is inconsistent with the
     declared tenure of the commission. On the other hand, if the
     _power_ of removal is not to be regarded as a limitation upon
     the tenure of the office, but the _process_ of removal is to
     be considered as a mode in which the unfitness or incapacity
     of the incumbent is to be ascertained,--treating it as a
     substitute for impeachment, to be used in cases of palpable
     official incapacity or unfitness,--then it is not repugnant
     to the tenure of good behavior. In support of this view of
     the subject it is to be observed that, in the statute of 1
     Geo. III. c. 23, the tenure of good behavior is made the
     leading and primary object of the enactment. The motives for
     it are set forth with great point and emphasis. The King is
     made to declare from the throne to the two houses of
     Parliament that he looks upon the independency and
     uprightness of judges as essential to the impartial
     administration of justice, as one of the best securities to
     the rights and liberties of the subject, and as most
     conducive to the honor of the crown. The enacting part of the
     statute, which follows this recital, provides anew that the
     judges' commissions shall be and remain in force during their
     good behavior, notwithstanding a demise of the crown; and
     the power of removal by the King, on the address of both
     houses, follows this enactment as a _proviso_. If, therefore,
     a not unusual rule of construction is applied, the power
     embraced in the _proviso_ should be so construed as to make
     its operation consistent with, and not repugnant to, the
     great purpose of the statute, which was to establish the
     tenure of good behavior. In this view the rightful exercise
     of the power may be confined to cases where the individual is
     no longer within that tenure, or, in other words, where the
     good behavior has ceased, or become impossible. Upon this
     construction the power of removal can only be rightfully
     exercised when a cause exists which touches the official
     conduct or capacity of the incumbent.

     In the Constitution of the State of Massachusetts, formed in
     1780, the power of removal by the executive, on the address
     of both houses of the legislature, was adopted from the
     English statutes, and it was introduced as a _proviso_ after
     the tenure of good behavior had been emphatically declared
     for all judicial officers, just as it stands in the act of 1
     Geo. III.

     An objection which has sometimes been urged against the
     construction above suggested is, that it is narrower than the
     terms of the provision, and that it would not include a case
     where a judge may have discharged all his official duties
     with propriety and ability, and may yet be personally
     obnoxious, as, for example, on account of gross immorality.
     But the answer to this objection is, that the question,
     whether a case of official good conduct accompanied by
     personal immorality, or the like defect of character, was
     intended to be within the power of removal, must be
     determined on a careful view of the whole provision. The
     meaning and scope of the qualification of "good behavior"
     must be first ascertained. If it means simply that the
     individual is to hold his commission so long as each official
     duty is discharged in the manner contemplated by law, then a
     mere personal immorality, which has not affected or
     influenced the discharge of official duty, is not
     inconsistent with the good behavior established as the tenure
     of the office. But if the good behavior means, not merely
     that the individual shall discharge his official duties in a
     competent manner, with an average amount of ability, and
     without corruption, but that he shall so order his life and
     conversation as not to expose himself to a cessation of the
     power to act intelligently and uprightly, then there may
     undoubtedly be a case of personal immorality that would touch
     the tenure of the office. Still it must be the tenure of the
     office that is touched, and it must be touched by misconduct
     or incapacity. The phrase "good behavior" is technical, and
     has always had a meaning attached to it which confines it to
     the discharge of official duty. It is, therefore, not what
     men think of the individual, or how they feel towards him,
     or how they regard him, but what he does or omits officially,
     that is to determine whether he continues to behave well in
     his office; and unless some conduct, or some bodily or mental
     condition, is adduced, that shows him to be incapable of
     fulfilling the duties of his station in the manner in which
     the law intends they shall be discharged, his tenure of good
     behavior is not lost.

     But the naked power of removal by the other two branches of
     the government exists in the English constitution, and in
     that of the State of Massachusetts, without any declaration
     of the purposes or occasions to which it is to be applied;
     and it is not easy to reconcile it with the avowed object of
     judicial independence obviously embraced by the terms of the
     commission prescribed in both of them. The two most important
     native writers on the English constitution, Sir William
     Blackstone and Mr. Hallam, regard the provision as a
     restraint on the former practice of the crown, of dismissing
     judges when they were not sufficiently subservient to the
     views of the government in political prosecutions. Mr.
     Hallam, after referring to the provisions of the two
     statutes, lays down the proposition, that "no judge can be
     dismissed from office, except in consequence of a conviction
     for some offence, or the address of both houses of
     Parliament, which is tantamount to an act of the
     legislature." (Constitutional History, III. 262.) He suggests
     further, that although the commissions of the judges cannot
     be vacated by the authority of the crown, yet that they are
     not wholly out of the reach of its influence. They are
     accessible to the hope of further promotion, to the zeal of
     political attachment, to the flattery of princes and
     ministers, and to the bias of their professional training. He
     therefore commends the wisdom of subjecting them in some
     degree to legislative control. (Ibid.) But it is not to be
     inferred from his remarks that that control can be rightfully
     exercised without the existence of a cause which affects
     their good behavior. On the contrary, he appears to consider
     that the purpose was to prevent a subserviency to the crown
     in their official conduct, by subjecting _that conduct_ to
     legislative scrutiny. To the honor of England, it is to be
     remembered that, since this power was recognized, there has
     never been an instance in which a judge has been removed for
     political or party purposes.

     Mr. Justice Story has taken substantially the same view of
     the subject. He says: "The object of the act of Parliament
     was to secure the judges from removal at the mere pleasure of
     the crown; but not to render them independent of the action
     of Parliament. By the theory of the British constitution,
     every act of Parliament is supreme and omnipotent. It may
     change the succession to the crown, and even the very
     fundamentals of the constitution. It would have been absurd,
     therefore, to have exempted the judges alone from the
     general jurisdiction of this supreme authority in the realm.
     The clause was not introduced into the act for the purpose of
     conferring the power on Parliament, for it could not be taken
     away or restricted, but simply to recognize it as a
     qualification of the tenure of office; so that the judges
     should have no right to complain of any breach of an implied
     contract with them, and the crown should not be deprived of
     the means to remove an unfit judge whenever Parliament
     should, in their discretion, signify their assent."
     (Commentaries on the Constitution, Vol. II. § 1623.)

     By describing it as a "qualification of the tenure of
     office," the learned commentator probably did not mean that
     the power was intended to be recognized as a power to remove
     judges against whom no official misconduct or incapacity
     could be charged; for the context shows that he was speaking
     of the removal of "unfit" judges as a power that it was
     proper to recognize and regulate. If he intended to lay it
     down as a complete and actual qualification of the tenure of
     good behavior, it must have been upon the theory to which he
     refers, upon which an act of Parliament can do anything,
     either with or without reason. Upon this theory all the
     commissions of all the judges in the realm may be vacated
     without inquiry into their fitness or unfitness. But if the
     true view of the subject is, that the _King's commission_,
     which runs _quamdiu se bene gesserit_, cannot be determined
     when the crown alone decides that the good behavior has
     ceased, or become impracticable, but may be determined when
     the whole legislative power has so decided, then in one sense
     it _is_ a qualification of the commission; because the latter
     emanates from the crown, but after it has issued, it is to be
     superintended by Parliament _and_ the crown.

     When we turn to our American constitutions, all embarrassment
     arising from the English theory of the omnipotence of the
     legislative department vanishes. In our systems of government
     the people alone possess supreme power. The legislature is
     but the organ of their will for certain specific and limited
     purposes, which are carefully defined in a written
     constitution; and no power that is not plainly confided by
     the constitution to the legislative and executive departments
     of the government can be exercised by them. Under every
     American constitution, therefore, which has conferred upon
     the executive power to remove a judge upon the address of the
     two houses of the legislature, the question whether that
     power extends to any cases but those of official misconduct
     or incapacity must be determined by a careful consideration
     of the position which that constitution assigns to the
     judiciary. If, as is the case, for example, under the
     Constitution of the State of Massachusetts, there is a clear
     intention manifest to make the judiciary independent of the
     other departments, and this intention appears by other
     provisions, and the enunciation of other principles besides
     that which in terms establishes the tenure of good behavior,
     then the power of removal upon address ought to be construed
     and exercised consistently with the tenure of good behavior,
     and not in direct repugnance to it. It is plain that, if the
     power is construed as a naked and unrestrained power,
     established as a direct qualification of the tenure of
     office, it may be used for party purposes, and may be
     exercised for any cause for which a dominant party may see
     fit to employ it.

     The danger of the abuse of this power, arising from the
     absence of any express restriction upon it, and of any
     statement of its purpose, in the Constitution of
     Massachusetts, has led to an unsuccessful effort in that
     State to make its exercise more difficult than it is under
     the actual provision. In the Convention held in the year
     1820, in which the Constitution was subjected to revision,
     Mr. Webster, Mr. Justice Story, and others of the eminent
     jurists of Massachusetts, endeavored to procure an amendment
     requiring the address to be adopted by a vote of two thirds
     in both branches, instead of allowing it to be carried, as
     the Constitution has always stood, and as the rule is in
     England, by a bare majority. The effort failed; but the
     result of the whole discussion to which it gave rise shows
     the general understanding of the people of the State with
     regard to the rightful extent of this power. The Convention
     was a very remarkable assembly of the intellect and worth of
     the State, and both the political parties of the time were
     fully represented in it, by their most distinguished members.
     All were agreed that the power was capable of abuse, and that
     to apply it to any other than cases of official incapacity or
     unfitness would be an abuse. But those who opposed the
     adoption of a two-thirds rule were unwilling to anticipate
     such an abuse of the power, and their arguments prevailed.

     The framers of the Constitution of the United States
     intrusted no such power over the judiciary to the other
     branches of the government. They regarded the possibility of
     its being used for improper purposes as a sufficient reason
     why it should not exist. They thought it, moreover, a
     contradiction in terms to say that the judges should hold
     their offices during good behavior, and yet be removable
     without a trial. But the radical objection was one that does
     not seem to have been sufficiently attended to in the early
     formation of some of the State constitutions, but which the
     peculiar system established by the Constitution of the United
     States made especially prominent.

     That Constitution was designed to be in some respects an
     abridgment of the previous powers of the States. Like the
     State constitutions, also, it embraced a careful
     distribution of the powers of government between the
     different departments, and a careful separation of the
     functions of one department from those of another. Questions
     must, therefore, necessarily arise in the administration of
     the government, whether one of these departments had
     overstepped the limits assigned to it as against the others,
     and whether the action of the general or the State
     governments in particular instances is within their
     appropriate spheres. These, now familiar to us as
     constitutional questions, were to be subjected to the
     arbitrament of the national judiciary; and it was almost
     universally felt that this delicate and important power must
     be confided to judges whose tenure of office could be touched
     only by the solemn process of accusation and impeachment. The
     same necessity exists under a State constitution, but perhaps
     not in the same degree; for while the judiciary of a State is
     often called upon to decide finally upon the conformity of
     acts of legislation with the State constitution,--and ought
     therefore clearly to be beyond the reach of legislative
     influence,--yet no State judiciary is the final arbiter
     between the rights and powers of the national government and
     the rights and powers of the States. This function belongs to
     the supreme judiciary of the United States. It was foreseen
     that it would not infrequently involve the decision of
     questions in which whole classes of States might have the
     deepest interest, which would connect themselves with party
     discussions, and on which the representatives of the States
     in the national legislature would be likely to share in the
     feelings, and even in the passions, of their constituents.
     There could be no security for a judiciary called upon to
     decide such questions, if they were to be subject to a power
     of removal by the other two branches of the government. Their
     commissions might make them theoretically independent, but
     practically they could be removed at the pleasure of those
     whom they might have offended. In truth, there is no State in
     this Union where such a power of removal is vested without
     qualification in the legislative and executive departments,
     in which the judges can be said to hold their commissions
     during good behavior, unless that power is construed to
     embrace only those cases of palpable incapacity in which an
     impeachment would be unnecessary or impracticable. As a naked
     and unqualified power, it is repugnant to the tenure of good
     behavior. It was so regarded in the Convention which framed
     the Constitution of the United States, where a proposition to
     introduce it received the vote of the single State of
     Connecticut only. (Madison, Elliot, V. 481, 482.)

FOOTNOTES:

[31] Adopted by the votes of eight States against two,--Connecticut
and Maryland voting in the negative.

[32] Pennsylvania, Maryland, _ay_, 2; Massachusetts, Connecticut, New
York, Delaware, Virginia, North Carolina, South Carolina, Georgia,
_no_, 8.

[33] Pennsylvania and Maryland, _no_.

[34] New York, Delaware, and Maryland, _no_.

[35] Nine States voted against it, and one (Delaware) was divided.

[36] The Federalist, No. 21.

[37] Madison, Elliot, V. p. 140.

[38] Eight States in the affirmative, two in the negative, and one
divided.

[39] This was afterwards applied to the judges of the inferior courts
also.

[40] Act 12 & 13 William III. ch. 2.

[41] Act 1 Geo. III. ch. 23.

[42] This was afterwards stricken out.



CHAPTER IV.

ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF
AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION.


Having settled a general plan for the organization of the three great
departments of government, the committee next proceeded to provide for
certain other objects of primary importance, the necessity for which
had been demonstrated by the past history of the Confederacy. The
first of these was the admission of new States into the Union.

It had long been apparent, that the time would sooner or later arrive
when the limits of the United States must be extended, and the number
of the States increased. Circumstances had made it impossible that the
benefits and privileges of the Union should be confined to the
original thirteen communities by whom it had been established.
Population had begun to press westward from the Atlantic States with
the energy and enterprise that have marked the Anglo-American
character since the first occupation of the country. Wherever the
hardy pioneers of civilization penetrated into the wilderness of the
Northwest, they settled upon lands embraced by those shadowy
boundaries which carried the territorial claims of some of the older
States into the region beyond the Ohio. Circumstances, already
detailed in a former part of this work, had compelled a surrender of
these territorial claims to the United States; and in the efforts made
by Congress, both before and after the cessions had been completed, to
provide for the establishment of new States, and for their admission
into the Union, we have already traced one of the great defects of the
Confederation, which rendered it incapable of meeting the exigencies
created by this inevitable expansion of the country.[43]

In the year 1784, when Mr. Jefferson brought into Congress a measure
for the organization and admission of new States, to be formed upon
the territories that had been or might thereafter be ceded to the
United States, he seems to have considered that the Articles of
Confederation authorized the admission of new States formed out of
territory that had belonged to a State already in the Union, by a vote
of nine States in Congress. But a majority of the States in Congress
evidently regarded the power of admission as doubtful; and although
they passed the resolves for the admission of new States,--principally
because it was extremely important to invite cessions of Western
territory,--they left the provision as to the mode of admission so
indefinite, that the whole question of power would have to be opened
and decided on the first application that might be made by a State to
be admitted into the Union.[44]

When the Ordinance of 1787 was formed, it made provision for the
establishment of new States in the territory, and declared that, when
any of them should have sixty thousand free inhabitants, it should be
admitted into Congress on an equal footing with the original States.
But the mode of admission was not prescribed. The power to admit was
assumed, and no rule of voting on the question of admission was
referred to. The probability is, that Congress anticipated at this
time that a definite constitutional power would be provided by the
Convention that had been summoned to revise the federal system. This
power was embraced in the plan adopted in the committee of the whole
of that body, by a resolve which declared "that provision ought to be
made for the admission of States lawfully arising within the limits of
the United States, whether from a voluntary junction of government and
territory, or otherwise, with the consent of a number of voices in the
national legislature less than the whole." In what mode this provision
was made will be seen hereafter, when we come to examine the framework
of the Constitution.

Another of the new powers now proposed to be given to the Union was
that of protecting and upholding the governments of the States. I have
already had occasion to explain the relations of the Confederation to
its members in a time of internal disturbance and peril; and have
given to the incapacity of that government to afford any aid in such
emergencies great prominence among the causes which led to the
revision of the federal system.[45] Under that system the States had
been so completely sovereign, and so independent of each other in all
that related to their internal concerns, that the government of any
one of them might have been subverted without the possibility of an
authorized and regulated interference by the rest. The constitutional
and republican liberty that had been established in these States after
the Revolution had freed them from the dominion of England, was at
that period a new and untried experiment; and in order that we of this
generation may be able to appreciate the importance of the guaranty
proposed to be introduced into the Constitution of the United States,
it is necessary for us to look somewhat farther than the particular
circumstances of the commotions in New England that marked the year
1787 as an era of especial danger to these republican governments. It
is, in fact, necessary for us to remember the contemporaneous history
of Europe, and to observe how the events that were taking place in the
Old World necessarily acted upon our condition, prospects, and
welfare.

The French Revolution, consummated in 1791 by the execution of the
King, was already begun when the Constitution of the United States
went into operation. No one who has examined the history of the first
years of our present national government, can fail to have been
impressed with the dangers which the administration of our domestic
affairs incurred of becoming complicated with the politics of Europe.
As in all other countries, so in America, the events and progress of
the Revolution in France found sympathy or reprobation, according to
the natural tendencies, the previous associations, and the political
sentiments of individuals. But in the United States there was a
peculiar and predisposing cause for the liveliest interest in the
success of the principles that were believed, by large masses of the
people, to be involved in the French Revolution. Our own struggles for
liberty, our bold and successful assertion of the rights of man, and
our achievement of the means and opportunity of self-government, had
evidently and strikingly acted upon France. The people of the United
States were fully sensible of this; and transferring to the French
nation the debt of gratitude for the aid which had flowed to us in the
first instance from their government without any special influence of
their own, large numbers of our people became warmly enlisted in the
cause of that Revolution, of which the early promise seemed so
encouraging to the best hopes of mankind, and the full development of
which first ruined the interests of liberty, in the wanton excesses of
anarchy and national ambition, and finally crushed them beneath the
usurpations and necessities of military despotism. On the other hand,
the more cautious--who, if they had not from the first looked with
distrust upon the whole movement of the Revolutionary party in France,
very soon believed that it could result in no real benefit to France
or to the world--tended strongly and naturally to the side of those
governments with which the leaders of the Revolution had to contend.
In consequence of this state of feeling among different portions of
the people of the United States, with reference to French affairs, and
of the conduct of France and England towards ourselves, the
administration of Washington had great difficulty both in preserving
the neutrality of the country, and in excluding foreign influence and
interference in our domestic affairs.

Had this state of things, which followed immediately after the
inauguration of our new government, found us still under the
Confederation, there can be no doubt that our condition would have
afforded to the Revolutionary party in France the means not only of
disseminating their principles among us, but also of overturning any
of the institutions of the weaker States which might have stood in the
way of their acquiring an influence in America. Yet what form or
principle of government is there in the world, that more imperatively
requires all foreign or external influence to be repelled, than our
own republican system, of which it is a cardinal doctrine that every
institution and every law must express the uncontrolled and
spontaneous will of a majority of the people who constitute the
political society? Other governments may be upheld by the interference
of their neighbors; other systems may require, and perhaps rightfully
admit, foreign influence. Ours demand an absolute immunity from
foreign control, and can exist only when the authority of the people
is made absolutely free. That their authority should be made and kept
free to act upon the principles that enable it to operate with
certainty and safety, it requires the guaranty of a system that rests
upon the same principles, is committed to the same destiny, is itself
constituted by American power, and is created for the express purpose
of preserving the republican form, the theory and the right of
self-government.

Such was the purpose of the framers of the Constitution, when, in this
early stage of their deliberations, they determined that a republican
constitution should be guaranteed by the United States to each of the
States.[46] The object of this provision was, to secure to the people
of each State the power of governing their own community, through the
action of a majority, according to the fundamental rules which they
might prescribe for ascertaining the public will. The insurrection in
Massachusetts, then just suppressed, had made the dangers that
surround this theory of government painfully apparent. It had
demonstrated the possibility that a minority might become in reality
the ruling power. Fortunately, no foreign interference had then
intervened; but a very few years only elapsed, before a crisis
occurred, in which the institutions of the States would have been
quite unable to withstand the shocks proceeding from the French
Revolution, if the government of the Union had not been armed with
the power of protecting and upholding them.

The committee also added another new feature to their plan of
government, which was a capacity of being amended. The Articles of
Confederation admitted of changes only when they had been agreed upon
in Congress, and had afterwards been confirmed by the legislatures of
all the States. Indeed, it resulted necessarily from the nature of
that government, that it could only be altered by the consent of all
the parties to it. It was now proposed and declared, that provision
ought to be made for the amendment of the Articles of Union, whenever
it should seem necessary. This declaration looked to the establishment
of some new method of originating improvements in the system of
government, and a new rule for their adoption.

It was also determined that the members of the State governments
should be bound by oath to support the Articles of Union. The purpose
of this provision was to secure the supremacy of the national
government, in cases of collision between its authority and the
authority of the States. It was a new feature in the national system,
and received at first the support of only a bare majority of the
States.[47]

Finally, it was provided that the new system, after its approbation by
Congress, should be submitted to representative assemblies
recommended by the State legislatures, to be expressly chosen by the
people to consider and decide thereon. The question has often been
discussed, whether this mode of ratification marks in any way the
character of the government established by the Constitution. At
present it is only necessary to observe, that the design of the
committee was to substitute the authority of the people of the States
in the place of that of the State legislatures, for a threefold
purpose. First, it was deemed desirable to resort to the supreme
authority of the people, in order to give the new system a higher
sanction than could be given to it by the State governments. Secondly,
it was thought expedient to get rid of the doctrine often asserted
under the Confederation, that the Union was a mere compact or treaty
between independent States, and that therefore a breach of its
articles by any one State absolved the rest from its obligations. In
the third place, it was intended, by this mode of ratification, to
enable the people of a less number of the States than the whole to
form a new Union, if all should not be willing to adopt the new
system.[48] The votes of the States in committee, upon this new mode
of ratification, show that on one side were ranged the States that
were aiming to change the principle of the government, and on the
other the States that sought to preserve the principle of the
Confederation.[49]

These, together with a provision that the authority of the old
Congress should be continued to a given day after the changes should
have been adopted, and that their engagements should be completed by
the new government, were the great features of the system prepared by
the committee of the whole, and reported to the Convention, on the
thirteenth of June.[50]

FOOTNOTES:

[43] _Ante_, Vol. I. Book III. Chap. V.

[44] Mr. Jefferson has very lucidly stated the position of the
question in some observations furnished by him, when in Paris, to one
of the editors of the _Encyclopédie Méthodique_, in 1786 or 1787,
which I here insert entire. "The eleventh Article of Confederation
admits Canada to accede to the Confederation at its own will, but
adds, 'no other Colony shall be admitted to the same unless such
admission be agreed to by nine States.' When the plan of April, 1784,
for establishing new States, was on the carpet, the committee who
framed the report of that plan had inserted this clause: 'Provided
nine States agree to such admission, according to the reservation of
the eleventh of the Articles of Confederation.' It was objected,--1.
That the words of the Confederation, 'no other Colony,' could refer
only to the residuary possessions of Great Britain, as the two
Floridas, Nova Scotia, &c., not being already parts of the Union; that
the law for 'admitting' a new member into the Union could not be
applied to a territory which was already in the Union, as making part
of a State which was a member of it. 2. That it would be improper to
allow 'nine' States to receive a new member, because the same reasons
which rendered that number proper now would render a greater one
proper when the number composing the Union should be increased. They
therefore struck out this paragraph, and inserted a proviso, that 'the
consent of so many States in Congress shall be first obtained as may
at the time be competent'; thus leaving the question whether the
eleventh Article applies to the admission of new States to be decided
when that admission shall be asked. See the Journal of Congress of
April 20, 1784. Another doubt was started in this debate, viz. whether
the agreement of the nine States required by the Confederation was to
be made by their legislatures, or by their delegates in Congress? The
expression adopted, viz. 'so many States in Congress is first
obtained,' shows what was their sense of this matter. If it be agreed
that the eleventh Article of the Confederation is not to be applied to
the admission of these new States, then it is contended that their
admission comes within the thirteenth Article, which forbids 'any
alteration unless agreed to in a Congress of the United States, and
afterwards confirmed by the legislatures of every State.' The
independence of the new States of Kentucky and Franklin will soon
bring on the ultimate decision of all these questions." (Jefferson's
Works, IX. 251.) That the admission of a new State into the Union
could have been regarded as an alteration of the Articles of
Confederation, within the meaning and intention of the thirteenth
Article, seems scarcely probable. Such an admission would only have
increased the number of the parties to the Union, but it would of
itself have made no change in the Articles; and it was against
alterations _in the Articles_ that the provision of the thirteenth was
directed. The objections which Mr. Jefferson informs us were raised in
Congress to a deduction of the power from the eleventh Article, appear
to be decisive. In truth, when the Articles of Confederation were
framed, the subject of the admission of new States, so far as it had
been considered at all, was connected with the difficult and delicate
controversy respecting the western boundaries of some of the old
States, and the equitable claim of the Union to become the proprietor
of the unoccupied lands beyond those boundaries. An attempt was made
to obtain for Congress, in the Articles of Confederation, power to
ascertain and fix the western boundaries of those States, and to lay
out the lands beyond them into new States. But it failed (_ante_, Vol.
I. 291), and Congress could thereafter be said to possess no power to
admit new States, except what depended on a doubtful construction of
the Articles of Confederation.

Still, both when they invited the cessions of their territorial claims
by the States of Virginia, New York, &c., and after those cessions had
been made, Congress acted as if they had constitutional authority to
form new States, and to admit them into the Union. (_Ante_, Vol. I.
292-308.) When the Ordinance of 1787, for the regulation and
government of the Northwestern Territory, was adopted, the power to
admit new States was again assumed. The Convention for forming the
Constitution was, however, then sitting, and it may be that the
framers of the Ordinance introduced into that instrument the
stipulation that the new States should be admitted on an equal footing
with the old ones, in the confidence that the constitutional power
would be supplied by the Convention. At any rate, the provisions of
the Ordinance, as well as those of the previous resolves of Congress
on the same subject of the Northwestern Territory, and the position of
Kentucky, Vermont, Maine, and Tennessee (then called Franklin),
imposed upon the Convention an imperative necessity for some action
that would open the door of the Union to new members.

[45] _Ante_, Vol. I. Book III. Chap. III. pp. 260-275.

[46] As the resolution was originally passed, it declared that "a
republican constitution, and its existing laws, ought to be guaranteed
to each State by the United States." On account of the ambiguity of
the expression "existing laws," and the controversies to which it
might give rise, the provision was subsequently changed to a guaranty
of "a republican form of government," and of protection against
"invasion" and "domestic violence," as it now stands in Art. IV. Sect.
4 of the Constitution.

[47] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New
York, Delaware, and Maryland voted against it (5).

[48] See Madison, Elliot, V. 157, 158, 183.

[49] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, _no_,
3; Delaware, Maryland, divided. See further on the subject of
"Ratification," _post_, Index.

[50] The report was in the following words:--

"1. _Resolved_, That it is the opinion of this committee that a
national government ought to be established, consisting of a supreme
legislative, executive, and judiciary.

"2. _Resolved_, That the national legislature ought to consist of two
branches.

"3. _Resolved_, That the members of the first branch of the national
legislature ought to be elected by the people of the several States
for the term of three years; to receive fixed stipends by which they
may be compensated for the devotion of their time to the public
service, to be paid out of the national treasury; to be ineligible to
any office established by a particular State, or under the authority
of the United States, (except those peculiarly belonging to the
functions of the first branch,) during the term of service, and under
the national government, for the space of one year after its
expiration.

"4. _Resolved_, That the members of the second branch of the national
legislature ought to be chosen by the individual legislatures; to be
of the age of thirty years, at least; to hold their offices for a term
sufficient to insure their independence, namely, seven years; to
receive fixed stipends, by which they may be compensated for the
devotion of their time to the public service, to be paid out of the
national treasury; to be ineligible to any office established by a
particular State, or under the authority of the United States, (except
those peculiarly belonging to the functions of the second branch,)
during the term of service, and under the national government, for the
space of one year after its expiration.

"5. _Resolved_, That each branch ought to possess the right of
originating acts.

"6. _Resolved_, That the national legislature ought to be empowered to
enjoy the legislative rights vested in Congress by the Confederation;
and, moreover, to legislate in all cases to which the separate States
are incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation; to negative all
laws passed by the several States contravening, in the opinion of the
national legislature, the Articles of Union, or any treaties
subsisting under the authority of the Union.

"7. _Resolved_, That the right of suffrage in the first branch of the
national legislature ought not to be according to the rule established
in the Articles of Confederation, but according to some equitable
ratio of representation; namely, in proportion to the whole number of
white and other free citizens and inhabitants, of every age, sex, and
condition, including those bound to servitude for a term of years, and
three fifths of all other persons not comprehended in the foregoing
description, except Indians not paying taxes in each State.

"8. _Resolved_, That the right of suffrage in the second branch of the
national legislature ought to be according to the rule established for
the first.

"9. _Resolved_, That a national executive be instituted, to consist of
a single person, to be chosen by the national legislature, for the
term of seven years, with power to carry into execution the national
laws, to appoint to offices in cases not otherwise provided for, to be
ineligible a second time, and to be removable on impeachment and
conviction of malpractice or neglect of duty; to receive a fixed
stipend, by which he may be compensated for the devotion of his time
to the public service, to be paid out of the national treasury.

"10. _Resolved_, That the national executive shall have a right to
negative any legislative act, which shall not be afterwards passed
unless by two thirds of each branch of the national legislature.

"11. _Resolved_, That a national judiciary be established, to consist
of one supreme tribunal, the judges of which shall be appointed by the
second branch of the national legislature, to hold their offices
during good behavior, and to receive punctually, at stated times, a
fixed compensation for their services, in which no increase or
diminution shall be made so as to affect the persons actually in
office at the time of such increase or diminution.

"12. _Resolved_, That the national legislature be empowered to appoint
inferior tribunals.

"13. _Resolved_, That the jurisdiction of the national judiciary shall
extend to all cases which respect the collection of the national
revenue, impeachments of any national officers, and questions which
involve the national peace and harmony.

"14. _Resolved_, That provision ought to be made for the admission of
States lawfully arising without the limits of the United States,
whether from a voluntary junction of government and territory, or
otherwise, with the consent of a number of voices in the national
legislature less than the whole.

"15. _Resolved_, That provision ought to be made for the continuance
of Congress, and their authorities and privileges, until a given day
after the reform of the Articles of Union shall be adopted, and for
the completion of all their engagements.

"16. _Resolved_, That a republican constitution, and its existing
laws, ought to be guaranteed to each State by the United States.

"17. _Resolved_, That provision ought to be made for the amendment of
the Articles of Union, whensoever it shall seem necessary.

"18. _Resolved_, That the legislative, executive, and judiciary powers
within the several States ought to be bound by oath to support the
Articles of Union.

"19. _Resolved_, That the amendments which shall be offered to the
Confederation by the Convention ought, at a proper time or times after
the approbation of Congress, to be submitted to an assembly or
assemblies of representatives, recommended by the several
legislatures, to be expressly chosen by the people to consider and
decide thereon."



CHAPTER V.

ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S
PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN.


The nature of the plan of government thus proposed--called generally
in the proceedings of the Convention the Virginia plan--may be
perceived from the descriptions that have now been given of the design
and scope of its principal features, and of the circumstances out of
which they arose. It purported to be a supreme and a national
government; and we are now to inquire in what sense and to what extent
it was so.

Its powers, as we have seen, were to be distributed among the three
departments of a legislative, an executive, and a judiciary. Its
legislative body was to consist of two branches, one of which was to
be chosen directly by the people of the States, the other by the State
legislatures; but in both, the people of the States were to be
represented in proportion to their numbers.

Its legislative powers were to embrace certain objects, to which the
legislative powers of the separate States might be incompetent, or
where their exercise might be injurious to the national
interests;[51] and it was moreover to have a certain restraining
authority over the legislation of the States. This plan necessarily
supposed that the residue of the sovereignty and legislative power of
the States would remain in them after these objects had been provided
for; and it therefore contemplated a system of government, in which
the individual citizen might be acted upon by two separate and
distinct legislative authorities. But by providing that the
legislative power of the national government should be derived from
the people inhabiting the several States, and by creating an executive
and a judiciary with an authority commensurate with that of the
legislature, it sought to make, and did theoretically make, the
national government, in its proper sphere, supreme over the
governments of the States.

With respect to the element of stability, as depending on the length
of the tenure of office, this system was far in advance of any of the
republican governments then existing in America; for it contemplated
that the members of one branch of the legislature should be elected
for three, and those of the other branch, and the executive, for seven
years.

If we compare it with the Confederation, which it was designed to
supersede, we find greatly enlarged powers, somewhat vaguely defined;
the addition of distinct and regular departments, accurately traced;
and a totally different basis for the authority and origin of the
government itself.

Such was the nature of the plan of government proposed by a majority
of the States in Convention, for the consideration of all. It had to
encounter, in the first place, the want of an express authority in the
Convention to propose any change in the fundamental principle of the
government. The long existence of the distinctions between the
different States, the settled habit of the people of the States to act
only in their separate capacities, their adherence to State interests,
and their strong prejudices against all external power, had prevented
them from contemplating a government founded on the principle of a
national unity among the populations of their different communities.
Hence, it is not surprising that men, who came to the Convention
without express powers which they could consider as authority for the
introduction of so novel a principle, should have been unwilling to
agree to the formation of a government, that was to involve the
surrender of a large portion of the sovereignty of each State. They
felt a real apprehension lest their separate States should be lost in
the comprehensive national power which seemed to be foreshadowed by
the plans at which others were aiming. It seemed to them that the
consequence, the power, and even the existence, of their separate
political corporations, were about to be absorbed into the nation.

In the second place, the mode of reconciling the co-ordinate existence
of a national and a State sovereignty had undergone no public
discussion. At the same time, almost all the evils, the
inconveniences, and the dangers which the country had encountered
since the peace of 1783, had sprung from the impossibility of uniting
the action of the States upon measures of general concern. For this
reason, there were men in the Convention who at one time doubted the
utility of preserving the States, and who naturally considered that
the only mode in which a durable and sufficient government could be
established, was to fuse all the elements of political power into a
single mass. To those who had this feeling, the Virginia plan was as
little acceptable as it was, for the opposite reason, to others.

It was, however, from the party opposed to any departure from the
principle of the Confederation, that the first and the chief
opposition came. The delegations of Connecticut, New York (with the
exception of Hamilton), New Jersey, and Delaware, and one prominent
member from Maryland,--Luther Martin,--preferred to add a few new
powers to the existing system, rather than to substitute a national
government. They were determined not to surrender the present equality
of suffrage in Congress; and accordingly the members from the State of
New Jersey brought forward a plan of a purely "federal" character.[52]

This plan proposed that the Articles of Confederation should be so
revised and enlarged as to give to Congress certain additional powers,
including a power to levy duties for purposes of revenue and the
regulation of commerce. But it left the constitution of Congress as
it was under the Confederation, and left also the old mode of
discharging the national expenses, by means of requisitions on the
States, changing only the rule of proportion from the basis of real
property to that of free population. It contemplated an executive, to
be elected by Congress, and a supreme judiciary to be appointed by the
executive; leaving to the judiciaries of the States original
cognizance of all cases arising under the laws of the Union, and
confining the national judiciary to an appellate jurisdiction, except
in the cases of impeachments of national officers. It proposed to
secure obedience to the acts and regulations of Congress, by making
them the supreme law of the States, and by authorizing the executive
to employ the power of the confederated States against any State or
body of men who might oppose or prevent their being carried into
execution.

The mover of this system[53] founded his opposition to the plan framed
by the committee of the whole chiefly upon the want of power in the
Convention to propose a change in the principle of the existing
government. He argued, with much acuteness, that there was either a
present confederacy of the States, or there was not; that if there
was, it was one founded on the equal sovereignties of the States, and
that it could be changed only by the consent of all; that as some of
the States would not consent to the change proposed, it was necessary
to adhere to the system of representation by States; and that a
system of representation of the people of the States was inconsistent
with the preservation of the State sovereignties. The answer made to
this objection was, that although the States, in appointing their
delegates to the Convention, had given them no express authority to
change the principle of the existing constitution, yet that the
Convention had been assembled at a great crisis in the affairs of the
Union, as an experiment, to remedy the evils under which the country
had long suffered from the defects of its general government; that
whatever was necessary to the safety of the republic must, under such
circumstances, be considered as within the implied powers of the
Convention, especially as it was proposed to do nothing more than to
recommend the changes which might be found necessary; and that
although all might not assent to the changes that would be proposed,
the dissentient States could not require the others to remain under a
system that had completely failed, when they could form a new
confederacy upon wiser and better principles.[54]

It was at this point that Hamilton interposed, with the suggestion of
views and opinions that have sometimes subjected him, unjustly, to the
charge of anti-republican and monarchical tendencies and designs.
These views and opinions should be carefully considered by the reader,
not only in justice to this great statesman, but because they had much
influence, in an indirect manner, in producing the form and tone
which the Constitution finally received.

It should be recollected, in making this examination, that, so far as
there was at this time a distinct issue before the Convention, it was
presented by the New Jersey plan of a system that would leave the
sovereignties of the States almost wholly undiminished, on the one
hand, and on the other by the Virginia plan of a partial but as yet
undefined surrender of powers to a general government. The
construction of this proposed government, and the powers that it ought
to possess, were the points which Hamilton now dealt with, in the
first address which he made to the committee.

He has left it on record, that the views which he announced on this
occasion were rested upon the three following positions:--1. That the
political principles of the people of this country would endure
nothing but a republican government. 2. That, in the actual situation
of the country, it was of itself right and proper that the republican
theory should have a full and fair trial. 3. That to such a trial it
was essential that the government should be so constructed as to give
it all the energy and stability reconcilable with the principles of
that republican theory.[55] The opinions advanced by Hamilton at the
stage of the proceedings which we are now examining must always be
considered with reference to the principles which guided him, in order
that a right estimate may be formed of their influence on the final
result of the issue then pending.

After disposing of the objection that the Convention had no power to
propose a plan of government differing from the principle of the
Confederation, he proceeded to say, that there were three lines of
conduct before them: first, to make a league offensive and defensive
between the States, treaties of commerce, and an apportionment of the
public debt; secondly, to amend the present Confederation by adding
such powers as the public mind seemed ready to grant; thirdly, to form
a new government, which should pervade the whole, with decisive powers
and a complete sovereignty. The practicability of the last course, and
the mode in which the object should be accomplished, were the
important and the only real questions before them. But the solution of
those questions involved an inquiry into the principles of civil
obedience, which are the great and essential supports of all
government.

The first of these principles, he said, is an active and constant
interest in the support of a government. This principle did not then
exist in the States, in favor of the general government. They
constantly pursued their own particular interests, which were adverse
to those of the whole. The second principle is a conviction of the
utility and necessity of a government. As the general government might
be dissolved and yet the order of society would continue,--so that
many of the purposes of government would still be attainable, to a
considerable degree, within the States themselves,--a conviction of
the utility or the necessity of a general government could not at that
time be considered as an active principle among the people of the
States. The third principle is an habitual sense of obligation; and
here the whole force of the tie was on the side of State government.
Its sovereignty was immediately before the eyes of the people; its
protection they immediately enjoyed; by its hand, private justice was
administered. In the existing state of things, the central government
was known only by its unwelcome demands of money or service.

The fourth principle on which government must rely is force; by which
he meant both the coercion of laws and the coercion of arms. But as to
the general government, the coercion of laws did not exist; and to
employ the force of arms on the States would amount to a war between
the parties to the confederacy. The fifth principle was influence; by
which he did not mean corruption, but a dispensation of those regular
honors and just emoluments which produce an attachment to government.
Almost the whole weight of these was then on the side of the States,
and must remain so in any mere confederacy, rendering it in its very
nature feeble and precarious.

The lessons afforded by experience led to the evident conclusion that
all federal governments were weak and distracted. They were so,
because the strong principles which he had enumerated operated on the
side of the constituent members of the confederacy, and against the
central authority. In order, therefore, to establish a general and
national government, with any hope of its duration, they must avail
themselves of these principles. They must interest the wants of men in
its support; they must make it useful and necessary; and they must
give it the means of coercion. For these purposes, it would be
necessary to make it completely sovereign.

The New Jersey plan certainly would not produce this effect. It merely
granted the regulation of trade and a more effectual collection of the
revenue, and some partial duties, which, at five or ten per cent,
would perhaps only amount to a fund to discharge the debt of the
corporation. But there were a variety of objects which must
necessarily engage the attention of a national government. It would
have to protect our rights against Canada on the north, against Spain
on the south, and the western frontier against the savages. It would
have to adopt necessary plans for the settlement of the frontiers, and
to institute the mode in which settlements and good governments were
to be made. According to the New Jersey plan, the expense of
supporting and regulating these important matters could only be
defrayed by requisitions. This mode had already proved, and would
always be found, ineffectual. The national revenue must be drawn from
commerce,--from imposts, taxes on specific articles, and even from
exports, which, notwithstanding the common opinion, he held to be fit
objects of moderate taxation.

The radical objections to the New Jersey plan he held to be its
equality of suffrage as between the States; its incapacity to raise
forces or to levy taxes; and the organization of Congress, which it
proposed to leave unchanged. On the other hand, the great extent of
the country to be governed, and the difficulty of drawing a suitable
representation from such distances, led him to regard the Virginia
plan with doubt and hesitation. At the same time, he declared that the
system must be a representative and republican government. But
representation alone, without the element of a permanent tenure of
office in some part of the system, would not, as he believed, answer
the purpose. For, as society naturally falls into the political
divisions of the few and the many, or the majority and the minority,
some part of every good representative government must be so
constituted as to furnish a check to the mere democratic element. The
Virginia plan, which proposed that both branches of the national
legislature should be chosen by the people of the States, and that the
executive should be appointed by the legislature, presented a
democratic Assembly to be checked by a democratic Senate, and both of
them by a democratic chief magistrate. To give a Senate or an
executive thus chosen an official term a few years longer than that of
the members of the Assembly, would not be sufficient to remove them
from the violence and turbulence of the popular passions.

For these reasons, they must go as far, in order to attain stability
and permanency, as republican principles would admit. He would
therefore have the Senate and the executive hold their offices during
good behavior. Such a system would be strictly republican, so long as
these offices remained elective and the incumbents were subject to
impeachment. The term _monarchy_ could not apply to such a system, for
it marks neither the degree nor the duration of power. And in order to
obviate the danger of tumults attending the election of an executive
who should hold his office during good behavior, he proposed that the
election should be made by a body of electors, to be chosen by the
people, or by the legislatures of the States. The Assembly he proposed
to have chosen by the people of the States for three years. The
legislative _powers_ of the general government he desired to have
extended to all subjects; at the same time, he did not contemplate the
total abolition of the State governments, but considered them
essential, both as subordinate agents of the general government, and
as the administrators of private justice among their own citizens.[56]

His conclusions were, first, that it was impossible to secure the
Union by any modification of a federal government; secondly, that a
league, offensive and defensive, was full of certain evils and greater
dangers; thirdly, that to establish a general government would be very
difficult, if not impracticable, and liable to various objections.
What then was to be done? He answered, that they must balance the
inconveniences and the dangers, and choose that system which seemed to
have the fewest objections.

The plan which Hamilton then read to the Convention, the principal
features of which have thus been stated, was designed to explain his
views, but was not intended to be offered as a substitute for either
of the two others then under consideration. The issue accordingly
remained unchanged; and that issue lay between the Virginia and the
New Jersey plans, or between a system of equal representation by
States, and a system of proportionate representation of the people of
the States. Besides this radical difference, the Virginia plan
contemplated two houses, while the New Jersey plan proposed to retain
the existing system of a single body.

But in order that a sound judgment may be formed of the correctness of
Hamilton's opinions, and of the useful influence which they exerted,
it must be remembered that there was an inconsistency in the Virginia
plan, which he was then aiming to exhibit. That plan was a purely
national system; it drew both branches of the national legislature
from the people of the States, in proportion to their numbers, and
merely interposed the legislatures of the States as the electors of so
many senators as the State might be entitled to have according to the
ratio of representation. Its inconsistency lay in the fact, that,
while it would have created a government in which the proportionate
principle of representation would have obtained in both houses, making
a purely national government, in which the States, as equal political
corporations, could have exercised no direct control over its
legislation, it left the separate political sovereignties of the
States almost wholly unimpaired, taking from them jurisdiction over
such subjects only as seemed to require national legislation. The
operation of such a system must necessarily have involved perpetual
conflicts between national and State power; for the States, possessed
of a large part of their original sovereignties, and yet unable to
exert an equal control in either branch of Congress, would have been
constantly tempted and obliged to exert the indirect power of their
separate legislation against the direct and democratic force of a
majority of the people of the United States. To such a system, the
objection urged by Hamilton, that it presented a democratic House
checked by a democratic Senate, was strikingly applicable. This
objection, it is true, was not presented by him as a reason for
admitting the States to a direct and equal representation in the
government; he employed it to enforce the expediency of giving to the
Senate a different basis from that of the House, and one farther
removed from popular influences. But when, at a subsequent period, the
first great compromise of the Constitution--that between a purely
national and a purely federal system--took place by the admission of
the States to an equal representation in the Senate, the force of
Hamilton's reasoning was felt, and the necessity for a check as
between the two houses, founded on a difference of origin, which he
had so strenuously maintained, both facilitated and hastened the
concession to the demands of the smaller States.

At present, Hamilton's object, in the discussions which we are now
considering, was to show that, if the government was to be purely
national,--as was the theory of the Virginia plan, and as he
undoubtedly preferred,--it must be consistent with that theory and
with the situation in which its adoption would leave the country. It
must introduce through the Senate a real check upon the democratic
power that would act through the House, by a different mode of
election and a permanent tenure of office; and in order that the
States might not be in a situation to resist the measures of a
government designed to be national and supreme, that government must
possess complete and universal legislative power.

Surely it can be no impeachment of the wisdom or the statesmanship of
this great man, that, at a time when a large majority of the
Convention were seeking to establish a purely national system, founded
on a proportionate representation of the people of the States, he
should have pointed out the inconsistencies of such a plan, and should
have endeavored to bring it into a nearer conformity with the theory
which so many of the members and so many of the States had determined
to adopt. It seems rather to be a proof of the deep sagacity which had
always marked his opinions and his conduct, that he should have
foreseen the inevitable collisions between the powers of a national
government thus constituted and the powers of the States. The whole
experience of the past had taught him to anticipate such conflicts,
and the theory of a purely national government, when applied by the
arrangement now proposed, rendered it certain that these conflicts
must continue and increase. That theory could only be put in practice
by transferring the whole legislative powers of the people of the
States to the national government. This he would have preferred; and
in this, looking from the point of view at which he then stood, and
considering the actual position of the subject, he was undoubtedly
right.[57]

For it is not to be forgotten, that after the votes which had been
taken, and after the position assumed by the States opposed to
anything but a federal plan, the choice seemed to lie between a purely
national and a purely federal system; that the indications then were,
that the Virginia plan would be adopted; and that we owe the present
compound character of the Constitution, as a government partly
national and partly federal, not to the mere theories proposed on
either side, but to the fortunate results of a wise compromise, made
necessary by the collision between the opposite purposes and desires
of different classes of the States.

At the time when Hamilton laid his views before the Convention, there
were two parties in that body, which were coming gradually to a
struggle, not yet openly avowed, between the larger and the smaller
States, on the fundamental principle of the government. The principal
question at stake was whether there should be any national popular
representation at all. While the Virginia plan carried a popular
representation into both branches of the legislature, the New Jersey
plan excluded it, and confined the system to a representation of
States, in a single body. The larger and more populous States adhered
to the former of these two systems, because it involved the only
principle upon which they believed they could form a new Union, or
enter into new relations with the smaller members of the confederacy;
while, on the other hand, the smaller members felt that
self-preservation was for them involved in adhering to the old
principle of the Confederation. Notwithstanding the defects and
imperfections of the Virginia plan, it was deemed necessary by the
majority of the Convention to insist upon it, until the principle of
popular representation should be conceded by all, as proper to exist
in some part of the government; for an admission that it was
theoretically incorrect in its application to either branch of the
proposed legislature would have applied equally to the other branch;
and the admission that would have been involved in the acceptance of
Hamilton's propositions, namely, that in a purely national system
there must be a Senate permanently in office, and that the legislative
powers of the States must be mainly surrendered, would have tended
only to confirm the opposition and to swell the numbers of the
minority. The contest went on, therefore, as it had begun, between
the opposite principles of popular and State representation, until it
resulted in an absolute difference, requiring mutual concessions, or
an abandonment of the effort to form a Constitution.

On the day following that on which Hamilton had addressed the
committee, Mr. Madison entered into an elaborate examination of the
plan proposed by the minority. The previous Congressional experience
of this distinguished and sagacious man had well qualified him to
detect the imperfections of a system calculated to perpetuate the
evils under which the country had long suffered. His object now was to
show that a Union founded on the principle of the Confederation, and
containing no diminution of the existing powers of the States, could
not accomplish even the principal objects of a general government. It
would not, he observed, in the first place, prevent the States from
violating, as they had all along violated, the obligations of treaties
with foreign powers; for it left them as uncontrolled as they had
always been. It would not restrain the States from encroaching on the
federal authority, or prevent breaches of the federal articles. It
would not secure that equality of privileges between the citizens of
different States, and that impartial administration of justice, the
want of which had threatened both the harmony and the peace of the
Union. It would not secure the republican theory, which vested the
right and the power of government in the majority; as the case of
Massachusetts then demonstrated. It would not secure the Union against
the influence of foreign powers over its members. Whatever might have
been the case with ours, all former confederacies had exhibited the
effects of intrigues practised upon them by other nations; and as the
New Jersey plan gave to the general councils no negative on the will
of the particular States, it left us exposed to the same pernicious
machinations.

He begged the smaller States, which had brought forward this plan, to
consider in what position its adoption would leave them. They would be
subject to the whole burden of maintaining their delegates in
Congress. They and they alone would feel the power of coercion on
which the efficacy of this plan depended, for the larger States would
be too powerful for its exercise. On the other hand, if the obstinate
adherence of the smaller States to an inadmissible system should
prevent the adoption of any, the Union must be dissolved, and the
States must remain individually independent and sovereign, or two or
more new confederacies must be formed. In the first event, would the
small States be more secure against the ambition and power of their
larger neighbors, than they would be under a general government
pervading with equal energy every part of the empire, and having an
equal interest in protecting every part against every other part? In
the second event, could the smaller States expect that their larger
neighbors would unite with them on the principle of the present
confederacy, or that they would exact less severe concessions than
were proposed in the Virginia scheme?

The great difficulty, he continued, lay in the affair of
representation; and if that could be adjusted, all others would be
surmountable. It was admitted by both of the gentlemen from New
Jersey,[58] that it would not be just to allow Virginia, which was
sixteen times as large as Delaware, an equal vote only. Their language
was, that it would not be safe for Delaware to allow Virginia sixteen
times as many votes. Their expedient was, that all the States should
be thrown into one mass, and a new partition be made into thirteen
equal parts. Would such a scheme be practicable? The dissimilarities
in the rules of property, as well as in the manners, habits, and
prejudices of the different States, amounted to a prohibition of the
attempt. It had been impossible for the power of one of the most
absolute princes in Europe,[59] directed by the wisdom of one of the
most enlightened and patriotic ministers that any age had
produced,[60] to equalize in some points only the different usages and
regulations of the different provinces. But, admitting a general
amalgamation and repartition of the States to be practicable, and the
danger apprehended by the smaller States from a proportional
representation to be real, would not their special and voluntary
coalition with their neighbors be less inconvenient to the whole
community and equally effectual for their own safety?[61] If New
Jersey or Delaware conceived that an advantage would accrue to them
from an equalization of the States, in which case they would
necessarily form a junction with their neighbors, why might not this
end be attained by leaving them at liberty to form such a junction
whenever they pleased? And why should they wish to obtrude a like
arrangement on all the States, when it was, to say the least,
extremely difficult, and would be obnoxious to many of the
States,--and when neither the inconvenience nor the benefit of the
expedient to themselves would be lessened by confining it to
themselves? The prospect of many new States to the westward was
another consideration of importance. If they should come into the
Union at all, they would come when they contained but few inhabitants.
If they should be entitled to vote according to their proportion of
inhabitants, all would be right and safe. Let them have an equal vote,
and a more objectionable minority than ever might give law to the
whole.[62]

At the close of Mr. Madison's remarks, the committee decided, by a
vote of seven States against three, one State being divided, to report
the Virginia plan to the Convention. The delegation of New York (with
the exception of Hamilton), and those of New Jersey and Delaware,
constituted the negative votes. The vote of Maryland was divided by
Luther Martin, who had constantly acted with the minority. The vote of
Connecticut was given for the report, but she was not long to remain
on that side of the question.[63]


NOTE ON THE OPINIONS OF HAMILTON.

     The idea has been more or less entertained, from the time of
     the Convention to the present day, that Hamilton desired the
     establishment of a _monarchical_ government. This impression
     has arisen partly from the theoretical opinions on government
     which he undoubtedly held, and which he expressed with entire
     freedom in the course of the debate, of which an account has
     been given in the previous chapter; and partly from the
     nature of some of his propositions, especially that for an
     executive during good behavior, which has been sometimes
     assumed to have been the same thing as an executive for life.
     I believe that the imputation of a purpose on his part to
     bring about the establishment of any system not essentially
     republican in its spirit and forms, is unfounded and unjust,
     and that it can be shown to be so.

     Mr. Luther Martin, in his celebrated letter or report to the
     legislature of Maryland on the doings of the Federal
     Convention, referred to a distinct monarchical party in that
     body, "whose object and wish," he said, "it was to abolish
     and annihilate all State governments, and to bring forward
     one general government over this whole continent, of a
     monarchical nature, under certain restrictions and
     limitations. Those who openly avowed this sentiment," he
     said, "were, it is true, but few; yet it is equally true,
     that there was a considerable number who did not openly avow
     it, who were, by myself and many others of the Convention,
     considered as being in reality favorers of that sentiment and
     acting upon those principles, covertly endeavoring to carry
     into effect what they well knew openly and avowedly could not
     be accomplished." He then goes on to say, that there was a
     second party, who were "not for the abolition of the State
     governments, nor for the introduction of a monarchical
     government under any form; but they wished to establish such
     a system as could give their own States undue power and
     influence, in the government, over the other States." "A
     third party," he adds, "was what I considered _truly federal
     and republican_"; that is to say, it consisted of the
     delegations from Connecticut, New York, New Jersey, Delaware,
     and in part from Maryland, and of some members from other
     States, who were in favor of a federal equality and the old
     principle of the Confederation.

     Upon this rule of classification, the test of republicanism
     was to be found in the views entertained by members upon the
     question whether the State governments ought to be abolished.
     Mr. Martin, indeed, went further, and considered those only
     as _truly_ republican, who were in favor of a purely federal
     system, and opposed to any plan of popular representation.
     Now it is quite clear, that the abolition of the State
     governments, so far as that subject was considered at all,
     and in the sense in which it was at any time mentioned, did
     not necessarily lead to _monarchy_ as a conclusion. The
     reduction of the State governments to local corporations and
     to the position of subordinate agents of the central
     government, was considered by some as a necessary consequence
     of a national representative government. This arose from the
     circumstance that a union of federal and national
     representation had nowhere been witnessed, and had not
     therefore been considered. I have already suggested, in the
     text, that, if the framers of the Constitution had gone on to
     the adoption of a pure system of popular and proportional
     representation in all the branches of the government, they
     must inevitably have bestowed upon that government full
     legislative power over all subjects; otherwise, they would
     have left the States, possessed of the sovereign powers of a
     distinct political organization, to contend with the national
     government by adverse legislation. The subsequent expedient
     of a direct and equal representation of the States in one
     branch of the government has in reality, to a great degree,
     disarmed State jealousy and opposition, by giving to the
     States as political bodies an equal voice in the check
     established by the branch in which they are represented.

     So that to argue, that, because there were men who saw the
     necessity for making a purely national or proportionate
     system of popular representation consistent with the
     situation in which it would place the country, they were
     therefore in favor of a monarchical system, was to argue from
     premises to a conclusion in no way connected. Had such a plan
     been carried out, it could have been, and must have been,
     purely republican in all its details; and it would have been
     liable to the reproach of being _monarchical_ in no other
     sense than any system which did not yield the point of a full
     federal equality, for which Mr. Martin and his party
     contended.

     Undoubtedly, Hamilton, as I have said, was in favor of
     bestowing upon the national government full _power_ to
     legislate upon all subjects; and to this extent, and in this
     sense, he proposed the abolition of the State governments.
     But any one who will attend carefully to the course of his
     argument,--imperfectly as it has been preserved,--will find
     that it embraces the following course of reasoning. All
     federal governments are weak and distracted. In order to
     avoid the evils incident to that form, the government of the
     American Union must be a national representative system. But
     no such system can be successful, in the actual situation of
     this country, unless it is endowed with all the principles
     and means of influence and power which are the proper
     supports of government. It must therefore be made completely
     sovereign, and State power, as a separate legislative
     authority, must be annihilated; otherwise, the States will be
     not only able, but will be constantly tempted, to exert their
     own authority against the authority of the nation. I have
     already expressed the opinion, that in this view of the
     subject, assuming that the States were not to be admitted to
     an equal representation as political corporations in any
     branch of the government,--as the framers and friends of the
     Virginia plan had thus far contended,--Hamilton was right. I
     believe that a constitution, in which the States had not been
     placed upon an equal footing in one branch of the legislative
     power, and under which the State sovereignties had been left
     as they were left by the system actually adopted, if it could
     have been ratified by all the States, could not have endured
     to our times. Yet the fortunate result of the mixed system
     that is embraced in the Constitution of the United States, is
     the product, not simply of either of the theories of a
     national or a federal government, but of a compromise between
     the two.

     But the charge of anti-republican tendencies or designs has
     been most often urged against Hamilton, on account of his
     theoretical opinions concerning the comparative merits of
     different governments, and of certain features of the plan of
     a constitution which he read to the Convention. With respect
     to these points, I shall state the results of a very careful
     examination which I have made of all the sources of
     information as to the views and opinions which he expressed
     or entertained. Mr. Madison has given us what he probably
     intended as a full report of at least the substance of
     Hamilton's great speech addressed to the committee of the
     whole, and has informed us that his report was submitted to
     Colonel Hamilton, who approved it, with a few verbal changes.
     But how meagre a report, which fills but six pages in the
     octavo edition of Mr. Madison's "Debates," must have been in
     comparison with the speech actually made by Hamilton, will
     occur to every reader who notices the fact that the speech
     occupied the entire session of one day (June 18), and who
     examines the brief from which he spoke, and which is still
     extant. (Hamilton's Works, II. 409.)

     He was an earnest, and I am inclined to think a fervid and
     rapid speaker. Certainly he spoke from a mind full of
     knowledge of the principles and the working of other systems
     of polity, and possessed of resources which have never been
     excelled in any statesman who has been called to aid in the
     work of creating a government. The topics set down in his
     brief exhibit a very wide range of thought, enriched by
     copious illustrations from the history and experience of
     other countries, and from the views of the most important
     writers on government; while the whole argument bears
     logically and closely upon the actual situation of our
     confederacy and upon the questions at issue. It is not
     probable, therefore, that Mr. Madison's report gives us an
     adequate idea of the speech, or fully exhibits its reasoning.
     I have collated it, sentence by sentence, with the report in
     Judge Yates's Minutes, and with Hamilton's own brief, and
     have prepared for my own use a draft containing the substance
     of what these three sources can give us. The results may be
     thus given:--

     1. That Hamilton, in stating his views of the theoretical
     value of different systems of government, frankly expressed
     the opinion that the British constitution was the best form
     which the world had then produced;--citing the praise
     bestowed upon it by Necker, that it is the only government
     "which unites public strength with individual security."

     2. That, with equal clearness, he stated it as his opinion
     that none but a republican form could be attempted in this
     country, or would be adapted to our situation.

     3. That he proposed to look to the British Constitution for
     nothing but those elements of stability and permanency which
     a republican system requires, and which may be incorporated
     into it without changing its characteristic principles.

     The only question that remains, in order to form a judgment
     of his purposes, is, whether there was anything in the plan
     of a constitution drawn up by him that is inconsistent with
     the spirit of republican liberty. The answer is, that there
     was not. There is throughout this plan a constant recognition
     of the authority of the people, as the source of all
     political power. It proposed that the members of the Assembly
     should be elected by the people directly, and the members of
     the Senate by electors chosen for the purpose by the people.
     The executive was in like manner to be chosen by electors,
     appointed by the people or by the State legislatures. So far,
     therefore, his plan was as strictly republican, as is that of
     the Constitution under which we are actually living. But he
     proposed that the executive and the senators should hold
     their offices _during good behavior_; and this has been his
     offence against republicanism, with those who measure the
     character of a system by the frequency with which it admits
     of rotation in office. His accusers have failed to notice
     that he made his executive personally responsible for
     official misconduct, and provided that both he and the
     senators should be subject to impeachment and to removal from
     office. This was a wide departure from the principles of the
     English constitution, and it constitutes a most important
     distinction between a republican and a monarchical system,
     when it is accompanied by the fact that the office of a ruler
     or legislator is attained, not by hereditary right, or the
     favor of the crown, but by the favor and choice of the
     people.

     I have thus stated the principal points to which the
     inquiries of the reader should be directed in investigating
     the opinions of this great man, because I believe it to be
     unjust to impute to him any other than a sincere desire for
     the establishment and success of republican government. That
     he desired a strong government, that he was little disposed
     to dogmatize upon abstract theories of liberty, and that he
     trusted more to experience than to hypothesis, may be safely
     assumed. But that he ardently desired the success of that
     republican freedom which is founded on a perfect equality of
     rights among citizens, exclusive of hereditary distinctions,
     is as certain as that he labored earnestly throughout his
     life for the maxims, the doctrines, and the systems which he
     believed most likely to secure for it a fair trial and
     ultimate success. (See his description of his own opinions,
     when writing of himself as a third person in 1792; Works,
     VII. 52.)

     That the system of government sketched by Hamilton was not
     received by many of those who listened to him with
     disapprobation on account of what has since been supposed its
     _monarchical_ character, we may safely assume, on the
     testimony of Dr. Johnson of Connecticut, one of the most
     moderate men in the Convention. Contrasting the New Jersey
     and Virginia plans, he is reported (by Yates) to have said:
     "It appears to me that the Jersey plan has for its principal
     object the preservation of the State governments. So far it
     is a departure from the plan of Virginia, which, although it
     concentrates in a distinct national government, is not
     totally independent of that of the States. A gentleman from
     New York, with boldness and decision, proposed a system
     totally different from both; _and although he has been
     praised by everybody_, he has been supported by none."
     (Yates's Minutes, Elliot, I. 431.)

     Even Luther Martin did not seem to regard the objects of what
     he calls the monarchical party as being any worse, or more
     dangerous to liberty, than the projects of those whom he
     represents as aiming to obtain undue power and influence for
     their own States, and whom at the same time he acquits of
     monarchical designs or a desire to abolish the State
     governments. The truth is, that nobody had any improper
     purposes, or anything at heart but the liberties and
     happiness of the people of America. We are not to try the
     speculative views of men engaged in such discussions as these
     by the charges or complaints elicited in the heats of
     conflicting opinions and interests, inflamed by a zeal too
     warm to admit the possibility of its own error, or to
     perceive the wisdom and purity of an opponent.

FOOTNOTES:

[51] The regulation of commerce was not, any more than other specific
powers, otherwise provided for than by these general descriptions.

[52] This, together with the Virginia plan, which was recommitted
along with it, was referred to a second committee of the whole, June
15th.

[53] William Patterson of New Jersey.

[54] See the remarks of Wilson, Pinckney, and Randolph, as given in
Madison, Elliot, V. 195-198.

[55] See his letter of September 16, 1803, addressed to Timothy
Pickering; first published in Niles's Register, November 7, 1812.

[56] See the note at the end of this chapter.

[57] See the note at the end of this chapter.

[58] Mr. Brearly and Mr. Patterson.

[59] Louis XVI.

[60] Necker.

[61] Mr. Patterson had said, that, if they were to depart from the
principle of equal sovereignty, the only expedient that would cure the
difficulty would be to throw the States into hotchpot. To say that
this was impracticable, would not make it so. Let it be tried, and
they would see whether Massachusetts, Pennsylvania, and Virginia would
accede to it. (Madison, Elliot, V. 194.)

[62] Elliot, V. 206-211.

[63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was
taken, and the committee of the whole were discharged, on the 19th of
June.



CHAPTER VI.

CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE
LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE
NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION
OF THE UNION.


We are now approaching a crisis in the action of the Convention, the
history of which is full of instruction for all succeeding generations
of the American people. We have witnessed the formation of a minority
of the States, whose bond of connection was a common opposition to the
establishment of what was regarded as a "national" government. The
structure of this minority, as well as that of the majority to which
they were opposed, the motives and purposes by which both were
animated, and the results to which their conflicts finally led, are
extremely important to be understood by the reader.

The relative rank of the different States in point of population, at
the time of the formation of the Constitution, was materially
different from what it is at the present day. Virginia, then the first
State in the Union, is now the fourth. New York, now at the head of
the scale, then ranked after North Carolina and Massachusetts, which
occupied the third and fourth positions in the first census, and which
now occupy respectively the sixth and tenth. South Carolina, which
then had a smaller population than Maryland, now has a much greater.
Georgia at that time had not half so many inhabitants as New Jersey,
but now has twice as many.

Great inequalities existed, as they still exist, between the different
members of the confederacy, not only in the actual numbers of their
inhabitants, and their present wealth, but in their capacity and
opportunity of growth. Virginia, with a population fourteen times as
large, had a territorial extent of thirty times the size of Delaware.
Pennsylvania had nearly seven times as many people as Rhode Island,
and nearly forty times as much territory. The State of Georgia
numbered a little more than a third as many people, but her territory
was nearly twelve times as large as the territory of Connecticut.

The four leading States, Virginia, Pennsylvania, North Carolina, and
Massachusetts, had an obvious motive for seeking the establishment of
a government founded on a proportionate representation of their
respective populations. The States of South Carolina and Georgia had
generally acted with them in the formation of the Virginia plan; and
these six States thus constituted the majority by which the principle
of what was called a "national," in distinction from a "federal"
government, had been steadily pressed to the conclusions arrived at in
the committee of the whole, and now embraced in its report.[64] All
but two of them were certain to remain slaveholding States; but in the
adoption of numbers as the basis of representative influence in the
government, they all had a common interest, which led them for the
present to act together.[65]

At the head of the minority, or the States which desired a government
of federal equality, stood the State of New York, then the fifth State
in the Union. She was represented by Alexander Hamilton, Robert Yates,
and John Lansing, Junior. The two latter uniformly acted together, and
of course controlled the vote of the State. Hamilton's vote being thus
neutralized, his influence on the action of the Convention extended no
farther than the weight and importance attached to his arguments by
those who listened to them.

Occupying at that period nearly a middle rank between the largest and
the smallest of the States with respect to population, New York had
not yet grasped, or even perceived, the wonderful elements of her
future imperial greatness. Her commerce was not inconsiderable; but it
had hitherto been the disposition of those who ruled her counsels to
retain its regulation in their own hands, and to subject it to no
imposts in favor of the general interests of the Union. Most of her
public men, also,[66] held it to be impracticable to establish a
general government of sufficient energy to pervade every part of the
United States, and to carry its appropriate benefits equally to all,
without sacrificing the constitutional rights of the States to an
extent that would ultimately prove to be dangerous to the liberties of
their people. Their view of the subject was, that the uncontrolled
powers and sovereignties of the States must be reserved; and that,
consistently with the reservation of these, a mode might be devised of
granting to the confederacy the moneys arising from a general system
of revenue, some power of regulating commerce and enforcing the
observance of treaties, and other necessary matters of less moment.
This was the opinion of Yates, the Chief Justice of the State, who may
be taken as a fair representative of the sentiments of a large part,
if not of a majority, of its people at this time.[67] But neither he,
nor any of those who concurred with him, succeeded in pointing out the
mode in which the power to collect revenues, to regulate commerce, and
to enforce the observance of treaties, could be conferred on the
confederacy, without impairing the sovereignties of the States. It
does not appear whether this class of statesmen contemplated a grant
of full and unrestrained power over these subjects to a federal
government, or whether they designed only a qualified grant, capable
of being recalled or controlled by the parties to the confederacy, for
reasons and upon occasions of which those parties were to judge. From
the general course of their reasoning on the nature of a federal
government, it might seem that the latter was their intention.[68] It
is not difficult to understand how these gentlemen may have supposed
that an irrevocable grant of powers to a general government might be
dangerous to the liberties of the people of the States, because such a
grant would involve a surrender of more or less of the original State
sovereignties to a legislative body external to the State itself. But
if they supposed that a grant of such powers could be made to a
"federal" government, or a political league of the States, acting
through a single body in the nature of a diet, and to be exercised
when necessary by the combined military power of the whole, and yet be
any less dangerous to liberty, it is difficult to appreciate their
fears or to perceive the consistency of their plan. If the liberties
of the people were any the less exposed under their system, than under
that of a "national" government, it must have been because their
system was understood by them to involve only a qualified and
revocable surrender of State sovereignty.

But however this may have been, there was undoubtedly a settled
conviction on the part of the two delegates of New York who controlled
the vote of the State in the Convention, that they had not received
the necessary authority from their own State to go beyond the
principle of the Confederation; that it would be impracticable to
establish a general government, without impairing the State
constitutions and endangering the liberties of the people; and that
what they regarded as a "consolidated" government was not in the
remotest degree within the contemplation of the legislature of New
York when they were sent to take their seats in the Convention.

The same sentiments, with far greater zeal, with intense feeling and
some acrimony, were held and acted upon by Luther Martin of Maryland,
a very eminent lawyer, and at that time Attorney-General of the State,
who sometimes had it in his power, from the absence of his colleagues,
to cast the vote of his State with the minority, and who generally
divided it on all critical questions that touched the nature of the
government. The State itself, with a population but a little less than
that of New York, had no great reason to regard itself as peculiarly
exposed to the dangers to be apprehended from combinations among the
larger States to oppress the smaller; and it does not appear that
these apprehensions were strongly felt by any of her representatives
excepting Mr. Martin.[69] The great energy and earnestness, however,
of that distinguished person, prevented a concurrence of the State
with the purposes and objects of the majority.

Connecticut might reasonably consider herself as one of the smaller
States, and her vote was steadily given for an equality of suffrage in
both branches of the national legislature, down to the time of the
final division upon the Senate. The States of New Jersey and Delaware
formed the other members of the minority, upon this general question.

On the one side, therefore, of what would have been, but for the great
inequalities among the States, almost a purely speculative question,
we find a strong determination, the result of an apparent necessity,
to establish a government in which the democratic majority of the
whole people of the United States should be the ruling power; and in
which, so far as State influence was to be felt at all, it should be
felt only in proportion to the relative numbers of the people
composing each separate community. It was considered by those who
embraced this side of the question, that, when the great States were
asked to perpetuate the system of federal equality on which the
Confederation had been founded, they were asked to submit to mere
injustice, on account of an imaginary danger to their smaller
confederates. They held it to be manifestly wrong, that a State
fourteen times as large as Delaware should have only the same number
of votes in the national legislature. Whether the States were now met
as parties to a subsisting confederacy, under which they might be
regarded in the same light as the individuals composing the social
compact; or whether they were to be looked upon as so many aggregates
of individuals for whose personal rights and interests provision was
to be made, as if they composed a nation already united, it was
believed by the majority that no safe and durable government could be
formed, if the democratic element were to be excluded. Pure
democracies had undoubtedly been attended with inconveniences. But how
could peace and real freedom be preserved, under the republican form,
if half a million of people dwelling in one political division of the
country possessed only the same suffrage in the enactment of laws as
sixty thousand people dwelling in another division? Leave out of view
the theory which taught that the States alone, regarded as members of
an existing compact, must be considered as the parties to the new
system, as they had been to the old, and it would be found that the
political equality of the free citizens of the United States could be
made a source of that energy and strength so much needed and as yet so
little known. With it was connected the idea and the practicability of
legislation that would reach and control individuals. Without it,
there could be only a system of coercion of the States, whose
opposition would be invited, rather than repressed, upon all occasions
of importance. Abandon the necessary principle of governing by a
democratic majority, said George Mason, and if the government
proceeds to taxation, the States will oppose its powers.[70]

On the other hand, the minority, insisting on a rigid construction of
their powers, and planting themselves upon the nature of the compact
already formed between the States, contended that these separate and
sovereign communities had distinct governments already vested with the
whole political power of their respective populations, and therefore
that they could not, consistently with the truth of their situation,
act as if the whole or any considerable part of that power could be
transferred by the people themselves to another government. They said,
that whatever power was to be conferred on a central or general
government must be granted by the States, as political corporations,
and that therefore the principle of the Union could not be changed,
whatever addition it might be expedient to make to its authority. They
said, that, even if this theory were not strictly true, the smaller
States could not safely unite with the larger upon any other; and
especially that they could not surrender their liberties to the
keeping of a majority of the people inhabiting all the States, for
such a power would inevitably destroy the State constitutions. They
were willing, they said, to enlarge the powers of the federal
government; willing to provide for it the means of compelling
obedience to its laws; willing to hazard much for the general welfare.
But they could not consent to place the very existence of their local
governments, with all their capacity to protect the distinct
interests of the people, and all their peculiar fitness for the
administration of local concerns, at the mercy of great communities,
whose policy might overshadow and whose power might destroy them.

To the claim of political equality as between a citizen of the largest
and a citizen of the smallest State in the Union, they opposed the
doctrine, that in his own State every citizen is equal with every
other, and holds such rights and liberties, and so much political
power, as the State may see fit to bestow upon him; but that, when
separate States enter into political relations with each other for
their common benefit, it is among the States themselves that the
equality must prevail, because States can only be parties to a compact
upon a footing of natural equality, just as individuals are supposed
to enter society with equal natural rights. This doctrine, they said,
was especially necessary to be applied between States of very unequal
magnitudes. If applied, it would render unnecessary the division of
the legislative body into two chambers; would dispense with any but a
supreme judicial tribunal; and would admit of a ratification by the
States in Congress, without raising the hazardous and doubtful
question of a direct resort to the people, whose power to act
independently of their State governments was by some strenuously
denied.

These, in substance, were the principles now brought into direct
collision, urged under a great variety of forms, and recurring upon
the successive details of the Constitution, as its formation
proceeded, and pressed with equal earnestness and equally firm
convictions of duty on both sides. I confess that it does not seem to
me important, if it be practicable, to decide which party was
theoretically correct. A great deal of the reasoning on both sides was
speculative, and it is not easy to deny some of the chief propositions
which were maintained on the one side and the other. We are too apt,
perhaps, to judge of the real soundness of the opinions held by
opposite parties to the first compromise of the Constitution, by the
subsequent history and success of the government, and by the views and
feelings which we entertain of that history and that success. Whereas,
in truth, if we place ourselves at the point where the framers of the
Constitution stood at the time we are examining, we shall find that,
with the exception of the influence due to one or two governing facts
of previous history, it was theoretically as correct to contend for a
purely federal as for a purely national government. Almost everything
depends upon the object towards which they were to reason; and
therefore the premises were in a considerable degree open to an
arbitrary choice. If the object was to establish a government, against
the exercise of whose legitimate powers State legislation could not
possibly be exerted, some higher authority than that of the State
governments must be resorted to; and the reasoning which tended to
prove the existence of that authority and the practicability of
invoking it, and the danger of any other kind of government, comes
logically and consistently in support of the great purpose to be
attained. If, however, from an honest fear for the safety of local
interests, the purpose was to have a government that would not
seriously diminish the powers of the States, but would leave them with
always unimpaired sovereignties, capable of resisting the measures of
the central power, then the States were certainly competent and
sufficient to the formation of such a system, and the reasoning which
placed them in the light of parties to a social compact was
theoretically true. On the one side, it was believed that a government
formed by the States upon the principle of federal equality would be
destructive of the powers of the general government, whatever those
powers might be. On the other side, it was considered that the
principle of governing by a democratic majority of the people of all
the States would make those powers too formidable for the safety of
the State constitutions. According to the force we may assign to the
one or the other tendency, the reasoning on either side will appear to
us to be almost equally correct.

But there were, as I have said, one or two facts of previous history,
which gave the advocates of a national government a great advantage
over their opponents, and went far towards settling the real merits of
the two opposite systems. A federal system had been tried, and had
broken down in complete prostration of all the appropriate energies
and functions of government. The advocates of the opposite system,
therefore, could point to all the failures and all the defects of the
Confederation, in proof of the reasoning which they employed. In
addition to this, they could adduce the same general tendency in all
former confederacies of the same nature. But no experiment had been
made by the people of the American States, of a government founded
expressly on the national character and relations of their
inhabitants; and if the merits of such a government were now only to
be maintained by theoretical reasoning, on the other hand it had not
suffered the injury of acknowledged defeat.

The difficulty in the way of its adoption was its supposed tendency to
absorb, and perhaps to annihilate, the sovereignties of the States.
The advocates of the Virginia plan were called upon to show how the
general sovereignty and jurisdiction which they proposed to give to
their system could consist with a considerable, though subordinate,
jurisdiction in the States. One of its moderate and candid
opponents[71] declared that, if this could be shown, the objections to
it ought to be surrendered; but if not, he thought that those
objections must have their full force. But, from the very nature of
the case, that which had not been demonstrated by experience could
rest only upon opinion; and while the Virginia system made no other
provision for State defence against encroachments of the general
government than such as might be found in the election by the State
legislatures of the national Senate, the apprehensions of the smaller
States could not be satisfied, however admirable the theory, and
however able might be the reasoning by which it was supported.

Let the reader, then, as he pursues the history of this conflict
between the opposing interests of the two classes of States, and
observes how strenuously the different theories were maintained, until
victory became impossible on either side, note the danger of adhering
too firmly to mere theoretical principles, in matters of government.
He will see the impressive spectacle of States assembled for the
formation of some system capable of answering the exigencies of their
situation; he will see how rapidly a difference of local interests
developed the most opposite theories, and how profoundly those
theories were discussed; and he will see this conflict carried on for
days, and even for weeks, with all the sincerity that interest lends
to conviction, and all the tenacity that conviction can produce, until
at last the whole discussion leads to the probable failure of the
purpose for which the assembly had been instituted. He will then see
an amalgamation of the two systems, which in their integrity were
irreconcilable, and will witness the first introduction of that mode
of adjusting opposite interests and conflicting theories of government
which lies at the basis of the Constitution of the United States, and
which alone can furnish a safe foundation on which to unite the
destinies and wants of separate communities possessed of distinct
political organizations and rights.

The Convention had received the report of the committee of the whole
on the 19th of June. From that day until the 5th of July the struggle
was continued, commencing with the proposition which affirmed the
division of the legislative department of the government into two
branches. Although such an arrangement did not necessarily involve the
principle of national and popular representation, it was opposed as
unnecessary by those who desired to retain the system of
representation by States, and who therefore intended to preserve the
existing organization of the Congress. Still, the needful harmony and
completeness of the scheme, according to the genius of the
Anglo-American liberty, required this division of the legislature.

Doubtless a single council or chamber can promulgate decrees and enact
laws; but it had never been the habit of the people of America, as it
never had been the habit of their ancestors for at least a period of
somewhat more than five centuries, to regard a single chamber as
favorable to liberty, or to wise legislation.[72] The separation into
two chambers of the lords spiritual and temporal, and the commons, in
the English constitution, does not seem to have originated in a
difference of personal rank, so much as in their position as separate
estates of the realm. All the orders might have voted promiscuously in
one house, and just as effectually signified the assent or dissent of
Parliament to any measure proposed.[73] But the practice of making the
assent of Parliament to consist in the concurrent and separate action
of the two estates, though difficult to be traced to its origin in any
distinct purpose or cause, became confirmed by the growing importance
of the commons, by their jealousy and vigilance, and by the
controlling position which they finally assumed. As Parliament
gradually proceeded to its present constitution, and the separate
rights and privileges of the two houses became established, it was
found that the practice of discussing a measure in two assemblies,
composed of different persons, holding their seats by a different
tenure and representing different orders of the state, was in the
highest degree conducive to the security of the subject, and to sound
legislation.[74]

So fully was the conviction of the practical convenience and utility
of two chambers established in the Anglican mind, that, when
representative government came to be established in the British North
American Colonies, although the original reason for the division
ceased to be applicable, it was retained for its incidental
advantages. In none of these Colonies was there any difference of
social condition, or of political privilege or power, recognized in
the system of representation; and as there were, therefore, no
separate estates or orders among the people, requiring to be protected
against each other's encroachments, or holding different relations to
the crown, we cannot attribute the adherence to the system of two
chambers, on the part of those who solicited and received the
privilege of establishing these colonial governments, to anything but
their belief in its practical advantages for the purposes of
legislation. Still less can we suppose, that after the Revolution, and
when there no longer existed any such motive as might have influenced
the crown in modelling the colonial after the imperial institutions,
to a certain extent, the people of these States should have
perpetuated in their constitutions the principle of a division of the
legislature into two chambers, for any other purpose than to secure
the practical benefits which they and their ancestors had always found
to flow from it.

Only three exceptions to this practice existed in America, at the time
of the formation of the Constitution. They were the legislatures of
the States of Pennsylvania and Georgia, and the Congress of the
Confederation.

But the Congress being in fact only an assembly of deputies from
confederated States, the means scarcely existed for the application of
the principle so familiar in the legislatures of most of the States
themselves. As a new government was now to be formed, whose
theoretical and actual powers were to be essentially different, an
opportunity was afforded for the ancient and favorite construction of
the legislative department. The proposal was resisted, not because it
was doubted that, in a government of direct legislative authority, in
which the people are themselves to be represented, the system of two
chambers is practically the best, but because those who opposed its
introduction denied the propriety of attempting to establish a
government of that kind. The States of New York, New Jersey, and
Delaware, therefore, recorded their votes against such a division of
the legislature, and the vote of Maryland was divided upon the
question.[75]

The reader will observe, however, that, in its present aspect, there
was a chasm in the Virginia plan, which to some extent justifies the
opposition of the minority to the system of two legislative chambers.
According to that plan, the people of the States were to be
represented in both chambers in proportion to their numbers. But as
there were no distinct orders among the people to furnish a different
basis for the two houses, the system must either be a mere duplicate
representation of the whole people, as it is in the State
constitutions generally, or some artificial basis must be provided
for one house, to distinguish it from the other, and to furnish a
check as between the two. In a republican government, and in a state
of society where property is not entailed and distinctions of personal
rank cannot exist, such a basis is not easily found; and if found, is
not likely to be stable and effectual. The happy expedient of
selecting the States as the basis of representation in the Senate,
which had not yet been agreed upon, and which was resorted to as an
adjustment of a serious conflict between two opposite principles of
government, has furnished a really different foundation for the two
branches, as distinct as the separate representation of the different
orders in the British constitution. It has thus secured the incidental
advantages of two chambers, without resorting to those fluctuating or
arbitrary distinctions among the people, which can alone afford, in
such a country as ours, even an ostensible difference of origin for
legislative bodies.

The same struggle which had been maintained upon this question was
continued through all the votes taken upon the mode of electing the
members of the two branches, and upon their tenure of office. It is
not necessary here to rehearse the details of these proceedings; the
result was, that the members of the first branch of the legislature
were to be chosen by the people of the States for a period of two
years, and to be twenty-five years of age, while the members of the
second or senatorial branch were to be chosen by the State
legislatures for a period of six years, and to be thirty years of
age. The States of Pennsylvania and Virginia voted against the
election of senators by the legislatures of the States, because it was
still uncertain whether an equality or a ratio of representation would
finally prevail in that branch, and the election by the legislatures
was considered to have a tendency to the adoption of an equality.[76]

At length, the sixth resolution, which defined the powers of Congress,
and the seventh and eighth, which involved the fundamental point of
the suffrage in the two branches, were reached.[77] The subject of the
powers of Congress was postponed, and the question was stated on the
rule of suffrage for the first branch, which the resolution declared
ought to be according to an equitable ratio. In the great debate which
ensued, Madison, Hamilton, Gorham, Reed, and Williamson combated the
objections of the smaller States, while Luther Martin, with his
accustomed warmth, resisted the introduction of the new principle. The
discussion involved on both sides a repetition of the arguments
previously employed; but some of the views presented are of great
importance, especially those taken by Madison and Hamilton, of the
situation in which the smaller States must be placed, if a
constitution should not be formed and adopted containing a just
distribution of political power among the whole people of the country,
creating thereby a government of sufficient energy to protect each and
all of the States against foreign powers, against the influence of
the larger members of the confederacy, and against the dangers to be
apprehended from their own governments.

Let each State, said Mr. Madison, depend on itself for its security,
in a position of independence of the Union, and let apprehensions
arise of dangers from distant powers, or from neighboring States, and
from their present languishing condition, all the States, large as
well as small, would be transformed into vigorous and high-toned
governments, with an energy fatal to liberty and peace. The weakness
and jealousy of the smaller States would quickly introduce some
regular military force, against sudden danger from their powerful
neighbors; the example would be followed, would soon become universal,
and the means of defence against external danger would become the
instruments of tyranny at home. These consequences were to be
apprehended, whether the States should run into a total separation
from each other, or into partial confederacies. Either event would be
truly deplorable, and those who might be accessory to either could
never be forgiven by their country, or by themselves.[78]

To these consequences of a dissolution of the Union, Hamilton added
another, equally serious. Alliances, he declared, must be formed with
different rival and hostile nations of Europe, who would seek to make
us parties to their own quarrels. The representatives of foreign
nations having American dominions betrayed the utmost anxiety about
the result of that meeting of the States. It had been said that
respectability in the eyes of Europe was not the object at which we
were to aim; that the proper design of republican government was
domestic tranquillity and happiness. This was an ideal distinction. No
government could give us tranquillity and happiness at home, which did
not possess sufficient stability and strength to make us respectable
abroad. This was the critical moment for forming such a government. We
should run every risk in trusting to future amendments. As yet, we
retain the habits of union. We are weak, and sensible of our weakness.
Henceforward the motives would become feeble and the difficulties
greater. It was a miracle that they were here, exercising their
tranquil and free deliberations on the subject. It would be madness to
trust to future miracles.[79]

But these warnings were of no avail against the settled determination
of those who saw greater dangers in the establishment of a government
which was in their view to approximate the condition of the States to
that of counties in a single State. The principle of a proportionate
representation of the populations of the State, was just and
necessary; but it was now leading to the extreme of an entire
separation, because it was carried to the extreme of a full
application to every part of the government. In like manner, there was
an equally urgent necessity for some provision which should receive
the States in their political capacity, and on a footing of equality,
as constituent parts of the system. But this principle was now forcing
the majority into the alternative of a partial confederacy, or of none
at all, because it was insisted that the government must be
exclusively founded on it. Neither party was ready to adopt the
suggestion that the two ideas, instead of being opposed, ought to be
combined, so that in one branch the people should be represented, and
in the other the States.[80] The consequence was that the
proportionate rule of suffrage for the first branch was established by
a majority of one State only;[81] and the Convention passed on, with a
fixed and formidable minority wholly dissatisfied, to consider what
rule should be applied to the Senate.

The objects of a Senate were readily apprehended. They were, in the
first place, that there might be a second chamber, with a concurrent
authority in the enactment of laws; secondly, that a greater degree of
stability and wisdom might reside in its deliberations, than would be
likely to be found in the other branch of the legislative department;
and, thirdly, that there might be some diversity of interest between
the two bodies. These objects were to be attained by providing for the
Senate a distinct and separate basis of its own. If such a basis is
found among the individuals composing a political society, it must
consist of the distinctions among them either in respect to social
rank or in respect to property. With regard to the first, the absence
of all distinctions of rank rendered it impossible to assimilate the
Senate of the United States to the aristocratic bodies which were
found in other governments possessed of two legislative chambers.
Property, as held by individuals, might have been assumed as the basis
of a distinct representation, if the laws and customs of the different
States had generally admitted of its possession in large masses
through successive generations. But they did not admit of it. The
general distribution and diffusion of property was the rule; its
lineal transmission from the father to the eldest son was the
exception. Had the Senate been founded upon property, it must have
been upon the ratio of wealth as between the different States, in the
same manner in which the senatorial representation of counties was
arranged under the first constitution of Massachusetts.[82] It was
very soon settled and conceded, that the States, as political
societies, must be preserved; and if they were to be represented as
corporations, or as so many separate aggregates of individuals, they
must be received into the representation on an equal footing, or
according to their relative weight. An inquiry into their relative
wealth must have involved the question, as to five of them at least,
whether their slaves were to be counted as part of that wealth. No
satisfactory decision of this naked question could have been had; and
it is to be considered among the most fortunate of the circumstances
attending the formation of the Constitution, that this question was
not solved, with a view of founding the Senate upon the relative
wealth of the States.

Two courses only remained. The basis of representation in the Senate
must either be found in the numbers of people inhabiting the States,
creating an unequal representation, or the people of each State,
regarded as one, and as equal with the people of every other State,
must be represented by the same number of voices and votes. The former
was the plan insisted on by the friends and advocates of the
"national" system; the latter was the great object on which the
minority now rallied all their strength.

The debate was not long protracted; but it was marked with an energy,
a firmness, and a warmth, on both sides, which reveal the nature of
the peril then hanging over the unformed institutions, whose existence
now blesses the people of America. As the delegations of the States
approached the decision of this critical question, the result of a
separation became apparent, and with it phantoms of coming dissension
and strife, of foreign alliances and adverse combinations, loomed in
the future. Reason and argument became powerless to persuade.
Patriotism, for a moment, lost its sway over men who would at any time
have died for their common country. Not mutterings only, but threats
even were heard of an appeal to some foreign ally, by the smaller
States, if the larger ones should dare to dissolve the confederacy by
insisting on an unjust scheme of government.

Ellsworth, of Connecticut, in behalf of the minority, offered to
accept the proportional representation for the first branch, if the
equality of the States were admitted in the second, thus making the
government partly national and partly federal. It would be vain, he
said, to attempt any other than this middle ground. Massachusetts was
the only Eastern State that would listen to a proposition for
excluding the States, as equal political societies, from an equal
voice in both branches. The others would risk every consequence,
rather than part with so dear a right. An attempt to deprive them of
it was at once cutting the body of America in two.

At this moment, foreseeing the probability of an equal division of the
States represented in the Convention, one of the New Jersey
members[83] proposed that the President should write to the executive
of New Hampshire, to request the attendance of the deputies who had
been chosen to represent that State, and who had not yet taken seats.
Two States only voted for this motion,[84] and the discussion
proceeded. Madison, Wilson, and King, with great earnestness, resisted
the compromise proposed by Ellsworth, and when the vote was finally
taken, five States were found to be in favor of an equal
representation in the Senate, five were opposed to it, and the vote of
Georgia was divided.[85]

Thus was this assembly of great and patriotic men brought finally to
a stand, by the singular urgency with which opposite theories,
springing from local interests and objects, were sought to be pressed
into a constitution of government, that was to be accepted by
communities widely differing in extent, in numbers, and in wealth, and
in all that constitutes political power, and which were at the same
time to remain distinct and separate States. As we look back to the
possibility of a failure to create a constitution, and try to divest
ourselves of the identity which the success of that experiment has
given to our national life, the imagination wanders over a dreary
waste of seventy years, which it can only fill with strange images of
desolation. That the administration of Washington should never have
existed; that Marshall should never have adjudicated, or Jackson
conquered; that the arts, the commerce, the letters of America should
not have taken the place which they hold in the affairs of the world;
that instead of this great Union of prosperous and powerful republics,
made one prosperous and powerful nation, history should have had
nothing to show and nothing to record but border warfare and the
conflicts of worn-out communities, the sport of the old clashing
policies of Europe; that self-government should have become one of the
exploded delusions with which mankind have successively deceived
themselves, and republican institutions have been made only another
name for anarchy and social disorder;--all these things seem at once
inconceivable and yet probable,--at once the fearful conjurings of
fancy, and the inevitable deductions of reason.

We know not what combinations, what efforts, might have followed the
separation of that convention of American statesmen, without having
accomplished the work for which they had been assembled. We do know,
that, if _they_ could not have succeeded in framing and agreeing upon
a system of government capable of commending itself to the free choice
of the people of their respective States, no other body of men in this
country could have done it. We know that the Confederation was
virtually at an end; that its power was exhausted, although it still
held the nominal seat of authority. The Union must therefore have been
dissolved into its component parts, but for the wisdom and
conciliation of those who, in their original earnestness to secure a
perfect theory, had thus encountered an insuperable obstacle and
brought about a great hazard. I have elsewhere said that these men
were capable of the highest of the moral virtues,--that their
magnanimity was as great as their intellectual acuteness and strength.
Let us turn to the proof on which rests their title to this
distinction.

FOOTNOTES:

[64] Rhode Island was never represented in the Convention, and the
delegation of New Hampshire had not yet attended.

[65] In all these statements of the relative rank of the States, I
compare the census of 1790 and that of 1850.

[66] The two great exceptions of course were Hamilton and Jay.

[67] See the candid and moderate letter of Messrs. Yates and Lansing
to the legislature of the State, giving their reasons for not signing
the Constitution. (Elliot, I. 480.)

[68] In the New Jersey plan, which the New York gentlemen (Hamilton
excepted) supported, although the power to levy duties and the
regulation of commerce were to be added to the existing powers of the
old Congress, yet as these powers were to be exerted against the
States, in the last resort, by force, it would only have been
necessary for a State to place itself in an attitude of resistance, by
a public act, and then the grant of power might have been considered
to be revoked by the very act of resisting its execution.

[69] Three of the delegates of the State, James McHenry, Daniel of St.
Thomas Jenifer, and Daniel Carroll, signed the Constitution.

[70] Yates's Minutes, Elliot, I. 433.

[71] Dr. Johnson of Connecticut.

[72] Mr. Hallam has traced the present constitution of Parliament to
the sanction of a statute in the 15th of Edward II. (1322), which he
says recognizes it as already standing upon a custom of some length of
time. Const. History, I. 5.

[73] Mr. Hallam does not concur in what he says has been a prevailing
opinion, that Parliament was not divided into two houses at the first
admission of the commons. That they did not sit in separate chambers
proves nothing; for one body may have sat at the end of Westminster
Hall, and the other at the opposite end. But he thinks that they were
never intermingled in voting; and, in proof of this, he adduces the
fact that their early grants to the King were separate, and imply
distinct grantors, who did not intermeddle with each others'
proceedings. He further shows, that in the 11th Edward I. the commons
sat in one place and the lords in another; and that in the 8th Edward
II. the commons presented a separate petition or complaint to the
King, and the same thing occurred in 1 Edward III. He infers from the
rolls of Parliament, that the houses were divided as they are at
present in the 8th, 9th and 19th Edward II. (See the very valuable
Chapter VIII., on the English Constitution, in Hallam's Middle Ages,
III. 342.)

[74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853.

[75] Connecticut upon this question voted with the majority.

[76] Madison, Elliot, V. 240.

[77] June 28.

[78] Madison, Elliot, V. 256.

[79] Madison, Elliot, V. 258.

[80] It was made at this stage by Dr. Johnson.

[81] The States opposed to an equality of suffrage in the first branch
were Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, and Georgia, 6; those in favor of it were Connecticut, New
York, New Jersey, and Delaware. The vote of Maryland was divided.

[82] Mr. Baldwin of Georgia suggested this model.

[83] David Brearly.

[84] New York and New Jersey.

[85] The question was put upon Ellsworth's motion to allow the States
an equal representation in the Senate. The vote stood, Connecticut,
New York, New Jersey, Delaware, Maryland, _ay_. 5; Massachusetts,
Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5;
Georgia divided. The person who divided the vote of Georgia, and thus
prevented a decision which must have resulted in a disruption of the
Convention, was Abraham Baldwin. We have no account of the motives
with which he cast this vote, except an obscure suggestion by Luther
Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a
very wise and a very able man. He was not in favor of Ellsworth's
proposition, but he probably saw the consequences of forcing the
minority States to the alternatives of receiving what they regarded as
an unjust and unsafe system, or of quitting the Union. By dividing the
vote of his State he prevented this issue, although he also made it
probable that the Convention must be dissolved without the adoption of
any plan whatever.



CHAPTER VII.

FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES
ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR
COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES
ADOPTED FOR THE SENATE.


As the States were now exactly divided on the question whether there
should be an equality of votes in the second branch of the
legislature, some compromise seemed to be necessary, or the effort to
make a constitution must be abandoned. A conversation as to what was
expedient to be done, resulted in the appointment of a committee of
one member from each State, to devise and report some mode of
adjusting the whole system of representation.[86]

According to the Virginia plan, as it then stood before the
Convention, the right of suffrage in both branches was to be upon some
equitable ratio, in proportion to the whole number of free inhabitants
in each State, to which three fifths of all other persons, except
Indians not paying taxes, were to be added. Nothing had been done, to
fix the ratio of representation; and although the principle of popular
representation had been affirmed by a majority of the Convention as
to the first branch, it had been rejected as to the second by an
equally divided vote of the States. The whole subject, therefore, was
now sent to a committee of compromise, who held it under consideration
for three days.[87]

The same struggle which had been carried on in the Convention was
renewed in the committee; the one side contending for an inequality of
suffrage in both branches, the other for an equality in both. Dr.
Franklin at length gave way, and proposed that the representation in
the first branch should be according to a fixed ratio of the
inhabitants of each State, computed according to the rule already
agreed upon, and that in the second branch each State should have an
equal vote. The members of the larger States reluctantly acquiesced in
this arrangement; the members of the smaller States, with one or two
exceptions, considered their point gained. When the report came to be
made, it was found that the committee had not only agreed upon this as
a compromise, but that they had made a distinction of some importance
between the powers of the two branches, by confining to the first
branch the power of originating all bills for raising or appropriating
money and for fixing the salaries of officers of the government, and
by providing that such bills should not be altered or amended in the
second branch. This was intended for a concession by the smaller
States to the larger.[88] The ratio of representation in the House was
fixed by the committee at one member for every forty thousand
inhabitants, in which three fifths of the slaves were to be computed;
each State not possessing that number of inhabitants to be allowed one
member. The number of senators was not designated.

This arrangement was, upon the whole, reasonable and equitable. It
balanced the equal representation of the States in the Senate against
the popular representation in the House, and it gave to the larger
States an important influence over the appropriations of money and the
levying of taxes. Nor can the admission of the slaves, in some
proportion, into the rule of representation, be justly considered as
an improper concession, in a system in which the separate
organizations of the States were to be retained, and in which the
States were to be represented in proportion to their respective
populations.

The report of the committee had recommended that this plan should be
taken as a whole; but as its several features were distasteful to
different sections of the Convention, and almost all parties were
disappointed in the result arrived at by the committee, the several
parts of the plan became at once separate subjects of discussion. In
the first place, the friends of a pure system of popular
representation in both branches objected to the provision concerning
money and appropriation bills, as being no concession on the part of
the smaller States, and as a useless restriction.[89] It therefore, in
their view, left in force all their objections against allowing each
State an equal voice in the Senate. But it was voted to retain it in
the report,[90] and the equal vote of the States in the second branch
was also retained.[91]

The scale of apportionment of representatives, recommended in the
report of the committee, was also objected to on various grounds. It
was said that a mere representation of persons was not what the
circumstances of the case required;--that property as well as persons
ought to be taken into the account in order to obtain a just index of
the relative rank of the States. It was also urged, that, if the
system of representation were to be settled on a ratio confined to the
population alone, the new States in the West would soon equal, and
probably outnumber, the Atlantic States, and thus the latter would be
in a minority for ever. For these reasons, the subject of apportioning
the representatives was recommitted to five members,[92] who
subsequently proposed a scheme, by which the first House of
Representatives should consist of fifty-six members, distributed among
the States upon an estimate of their present condition,[93] and
authorizing the legislature, as future circumstances might require,
to increase the number of representatives, and to distribute them
among the States upon a compound ratio of their wealth and the numbers
of their inhabitants.[94] The latter part of this proposition was
adopted, but a new and different apportionment, of sixty-five members
for the first meeting of the legislature, was sanctioned by a large
vote of the States, after a second reference to a committee of one
member from each State.[95]

These votes had been taken for the purpose of agreeing upon amendments
to the original report of the compromise committee, which they would
have so modified as to introduce into it, in place of a ratio of forty
thousand inhabitants, including three fifths of the slaves, a fixed
number of representatives for the first meeting of the legislature,
distributed by estimate among the States, and for all subsequent
meetings an apportionment by the legislature itself upon the combined
principles of the wealth and numbers of inhabitants of the several
States. But in order to understand the objections to the latter part
of this proposition, and the modifications that were still to be made
in it, it is necessary for us here to recur to that special interest
which caused a new and most serious difficulty in the subject of
representation, and which now began to be distinctly asserted by those
whose duty it was to provide for it. There is no part of the history
of the Constitution that more requires to be examined with a careful
attention to facts, with an unprejudiced consideration of the purposes
and motives of those who became the agents of its great compromises
and compacts between sovereign States, and with an impartial survey of
the difficulties with which they had to contend.

Twice had the Convention affirmed the propriety of counting the
slaves, if the States were to be represented according to the numbers
of their inhabitants; and on the part of the slaveholding States there
had hitherto been no dissatisfaction manifested with the old
proportion of three fifths, originally proposed under the
Confederation as a rule for including them in the basis of taxable
property. But the idea was now advanced, that numbers of inhabitants
were not a sufficient measure of the wealth of a State, and that, in
adjusting a system of representation between such States as those of
the American Union, regard should be had to their relative wealth,
since those which were to be the most heavily taxed ought to have a
proportionate influence in the government. Hence the plan of combining
numbers and wealth in the rule. This was mainly an expedient to
prevent the balance of power from passing to the Western from the
Atlantic States.[96] It was supposed that the former might in
progress of time have the larger amount of population; but that, as
the latter would at the commencement of the government have the power
in their own hands, they might deal out the right of representation to
new States in such proportions as would be most for their own
interests. Still there were grave objections to this combined rule of
numbers and wealth as applied to the slaveholding States. In the first
place, it was extremely vague; it left the question wholly
undetermined whether the slaves were to be regarded as persons or as
property, and therefore left that question to be settled by the
legislature at every revision of the system. Moreover, although this
rule might enable the Atlantic States to retain the predominating
influence in the government as against the Western interests, it might
also enable the Northern to retain the control as against the Southern
States, after the former had lost and the latter had gained a majority
of population. The proposed conjectural apportionment of members for
the first Congress would give thirty-six members to the States that
held few or no slaves, and twenty-nine to the States that held many.
Mason and Randolph, who represented in a candid manner the objections
which Virginia must entertain to such a scheme, did not deny, that,
according to the present population of the States, the Northern part
had a right to preponderate; but they said that this might not always
be the case; and yet that the power might be retained unjustly, if the
proportion on which future apportionments were to be made by the
legislature were not ascertained by a definite rule, and peremptorily
fixed by the Constitution. Gouverneur Morris, who strenuously
maintained the necessity for guarding the interests of the Atlantic
against those of the Western States, insisted that the combined
principles of numbers and wealth gave a sufficient rule for the
legislature; that it was a rule which they could execute; and that it
would avoid the necessity of a distinct and special admission of the
slaves into the census,--an idea which he was sure the people of
Pennsylvania would reject. Mr. Madison argued, forcibly, that
unfavorable distinctions against the new States that might be formed
in the West would be both unjust and impolitic. He thought that their
future contributions to the treasury had been much underrated; that
the extent and fertility of the Western soil would create a vast
agricultural interest; and that, whether the imposts on the foreign
supplies which they would require were levied at the mouth of the
Mississippi or in the Atlantic ports, their trade would certainly
advance with their population, and would entitle them to a rule which
should assume numbers to be a fair index of wealth.

The arguments against the combined principles of numbers and wealth,
as a mere general direction to the legislature, and against their
joint operation upon the contrasted interests of the Western and the
Atlantic States, appear to have prevailed with some of the more
prominent of the Northern members.[97] Accordingly, when a counter
proposition was brought forward by Williamson,[98]--which contemplated
a return to the principle of numbers alone, and was intended to
provide for a periodical census of the free white inhabitants and of
three fifths of all other persons, and that the representation should
be regulated accordingly,--six States on a division of the question
voted for a census of the free inhabitants, and four States recorded
their votes against it.[99] This result brought the Convention to a
direct vote upon the naked question whether the slaves should be
included as persons, and in the proportion of three fifths, in the
census for the future apportionment of representatives among the
States.

Massachusetts and Pennsylvania now, for the first time, separated
themselves from Virginia. It was perceived that a system of
representation by numbers would draw after it the necessity for an
admission of the slaves into the enumeration, unless it were confined
to the free inhabitants. On the one hand, the delegates of these two
States had to look to the probable encouragement of the slave-trade,
that would follow an admission of the blacks into the representation,
and to the probable refusal of their constituents to sanction such an
admission. On the other hand, they had to encounter the difficulty of
arranging a just rule of popular representation between States which
would have no slaves, or very few, and States which would have great
numbers of persons in that condition, without giving to the latter
class of States some weight in the government proportioned to the
magnitude of their populations. But they would not directly admit the
naked principle that a slave is to be placed in the same category with
a freeman for the purpose of representation, when he has no voice in
the appointment of the representative; and the proposition was
rejected by their votes and those of four other States.[100] Thereupon
the whole substitute of Mr. Williamson, which contemplated numerical
representation in the place of the combined rule of numbers and
wealth, was unanimously rejected.

The report of the committee of compromise still stood, therefore, but
modified into the proposition of a fixed number for the first House of
Representatives, and a rule to be compounded of the numbers and wealth
of the States, to be applied by the legislature in adjusting the
representation in future houses. A difficulty, apparently insuperable,
had defeated the application of the simple and--as it might otherwise
appropriately be called--the natural rule of numerical representation.
The social and political condition of the slave, so totally unlike
that of the freeman, presented a problem hitherto unknown in the
voluntary construction of representative government. It was certainly
true, that, by the law of the community in which he was found, and by
his normal condition, he could have no voice in legislation. It was
equally true, that he was no party to the establishment of any State
constitution; that nobody proposed to make him a party to the
Constitution of the United States, to confer upon him any rights or
privileges under it, or to give to the Union any power to affect or
influence his _status_ in a single particular. It was true also, that
the condition in which he was held was looked upon with strong
disapprobation and dislike by the people of several of the States, and
it was not denied by some of the wisest and best of the Southern
statesmen that it was a political and social evil.

Still, there were more than half a million of these people of the
African race, distributed among five of the States, performing their
labor, constituting their peasantry, and--if the numbers of laborers in
a community form any just index of its wealth and importance--forming
in each of those States a most important element in its relative
magnitude and weight. It should be recollected, that the problem before
the framers of the Constitution was, not how to create a system of
representation for a single community possessing in all its parts the
same social institutions, but how to create a system in which different
communities of mere freemen and other different communities of freemen
and slaves could be represented, in a limited government instituted for
certain special objects, with a proper regard to the respective rights
and interests of those communities, and to the magnitude of the stake
which they would respectively have in the legislation by which all were
to be affected.[101]

It does not appear, from any records of the discussions that have come
down to us, in what way it was supposed the combined rule of numbers
and wealth could be applied. If its application were left to Congress,
in adjusting the system with reference to slaveholding States, the
slaves must be counted as persons or as property; and as the proposed
rule did not determine which, they might be treated as persons in one
census, and as property in the next, and so on interchangeably. The
suggestion of the principle, however, which seemed to be a just one,
and which grew out of the conflicting opinions entertained upon the
question whether numbers of inhabitants are alone a just index of the
wealth of a community, brought into view a very important doctrine,
that had long been familiar to the American people; namely, that the
right of representation ought to be conceded to every community on
which a tax is to be imposed; or, as one of the maxims of the
Revolutionary period expressed it, that "taxation and representation
ought to go together." This doctrine was really applicable to the
case, and capable of furnishing a principle that would alleviate the
difficulty; for if it could be agreed that, in levying taxes upon a
slaveholding State, the wealth that consisted in slaves should be
included, the maxim itself demonstrated the propriety of giving as
large a proportion of representation as the proportion of tax imposed;
and if, in order to ascertain the representative right of the State,
the slaves were to be counted as persons, and, in ascertaining the tax
to be paid, they were to be counted as property, they would not
require to be considered in both capacities under either branch of the
rule. But in order to give the maxim this application, it would be
necessary to concede that the numbers of the slaves and the free
persons furnished a fair index of the wealth of one State, as it was
necessary to admit that the numbers of its free inhabitants furnished
a fair index of the wealth of another State. If the latter were to be
assumed, and the taxation imposed upon a State were regulated by its
numbers of people, upon the idea that such numbers fairly represented
the wealth of the community, it was proper to apply the same principle
to the slaves. If this principle were applied to the slaves when
ascertaining the amount of taxes to be paid, it ought equally to be
applied to them in ascertaining the numbers of representatives to be
allowed to the State; otherwise, the value of the slaves must be
ascertained in some other way, for the purposes of taxation; the value
or wealth residing in other kinds of property must be ascertained in
the same mode, or under the different rule of assuming numbers of
inhabitants as its index; and the slaves must be excluded as persons
from the representation, which they could only enhance by being
treated as taxable property.

These further difficulties will appear, as we follow out the various
steps taken for the purpose of applying the maxim which connects
taxation with representation. The rule now under consideration, as the
means of guiding the legislature in future distributions of the right
of representation, was that they were to regulate it upon a ratio
compounded of the wealth and numbers of inhabitants of the States.
Gouverneur Morris now proposed to add to this, as a proviso, the
correlative proposition, "that direct taxation shall be in proportion
to representation." This was adopted; and it made the proposed rule of
numbers and wealth combined applicable both to taxation and
representation.

But in truth it was as difficult to apply the combined rule of wealth
and numbers to the subject of taxation, as between the States, as it
was to apply it to the right of representation. This was not the first
time in the history of the Union that these two subjects had been
considered, and had been found to be surrounded with embarrassments.
In 1776, when the Articles of Confederation were framed, it became
necessary to determine the proportion in which the quotas of
contribution to the general treasury should be assessed upon the
States. Two obvious rules presented themselves as alternatives; either
to apportion the quotas upon an estimate of the wealth of the States,
or to assume that numbers of inhabitants of every condition presented
a fair index of the pecuniary ability of a State to sustain public
burdens. Here again, however, under either of these plans, the
question would arise as to the kind of property to be regarded in the
basis of the assessment. Should the slaves be treated as part of the
property of a slaveholding State, either by a direct computation, or
by counting them as part of the population, which was to be considered
as the measure of its wealth? Mr. John Adams forcibly maintained that
they ought not to be regarded as subjects of federal taxation, any
more than the free laborers of the Northern States; but that numbers
of inhabitants ought to be taken, indiscriminately, as the true index
of the wealth of each State; and that thus the slave would stand upon
the same footing with the free laborer, both being regarded as the
producers of wealth, and therefore that both should add to the quota
of tax or contribution to be levied upon the State.[102] Mr.
Chase,[103] on the other hand, contended that practically this rule
would tax the Northern States on numbers only, while it would tax the
Southern States on numbers and wealth conjointly, since the slaves
were property as well as persons.

It is probable, however, that the slaveholding States would at that
time have agreed to the adoption of numbers as the basis of
assessment, if the Northern and Eastern States could have consented to
receive the slaves into the enumeration in a smaller ratio than their
whole number. But it was insisted that they should be counted equally
with the free laborers of the other States; and the result of this
attempt to solve a complicated and abstruse question of political
economy by a theoretical rule, determining that a slave, as a producer
of wealth, stands upon a precise equality with a freeman performing
the same species of labor, was, that the Congress of 1776 were driven
to the adoption of land as a measure of wealth, instead of the more
convenient and practicable rule of numbers.[104]

But the Articles of Confederation had not been in operation for two
years, when it was found that the system of obtaining supplies for the
general treasury by assessing quotas upon the States according to an
estimate of their relative wealth, represented by the value of their
lands, was entirely impracticable; that the value of land must
constantly be a source of contention and dissatisfaction between the
States; and that, if the mode of defraying the expenses of the Union
by requisitions were adhered to, some simpler rule must be adopted.
Accordingly, in 1783 the Congress were compelled to return to the
rule of numbers; and it was in the effort to agree upon the ratio in
which the slaves should enter into that rule, that the proportion of
three fifths was fixed upon, as a compromise of different views, in
the amendment then proposed to the Articles of Confederation.[105]

Such had been the previous experience of the Union on the subject of
taxation; and now, in 1787, when an effort was to be made to establish
a government upon a popular representation of the States which had
found it so difficult to agree upon a just and practicable rule for
determining their proportions of the public burdens, the whole subject
became still further complicated with the difficulties attending the
adjustment of this new right of proportional representation. The maxim
which would regulate it by the same ratio that is applied to the
distribution of taxes, contained within itself a just principle; but
it went no farther than to assert a principle of justice, and it left
the subject of the rule itself surrounded by the same difficulties as
before. The Southern States complained that their slaves, if counted
as property for the purposes of taxation, were to be so counted upon a
ratio left wholly to the discretion of Congress; and if counted as
numbers, for the same purpose, that they ought not to be reckoned in
their entire number. They professed their readiness to have
representation and taxation regulated by the same rule, but they
insisted on the security of a definite rule, to be established in the
Constitution itself; and this security, they said, must embrace an
admission of the slaves into the basis of representation, if they were
to be included in the basis of direct taxation.[106] Accordingly,
before the rule as to taxation had been determined, Randolph submitted
a distinct proposition, which contemplated a census of the white
inhabitants and of three fifths of all other persons, with a
peremptory direction to Congress to arrange the representation
accordingly.

The Northern States, on the other hand, resisted the direct
introduction of the slaves into the representation, as persons; and it
was plain that, if they were to be treated as property, and the
representation was to be regulated by a rule of wealth, their value as
property must be compared with that of other species of personalty
held in the same and in other States, and some principles for
computing it must be ascertained. Upon such economical questions as
these, the agreement of different minds, under the influence of
different interests, was absolutely impossible.

Thus the knot of these complicated difficulties could only be cut by
the sword of compromise. In whatever direction a theoretical rule was
applied,--whatever view was taken of the slave, as a person or as an
article of property; as a productive laborer equally or less valuable
to the State when compared with the freeman,--whatever principles
were maintained upon the question whether numbers constitute a proper
measure of the wealth of a community, and one that will work out the
same result in communities where slavery exists, as well as where it
is absent,--absolute truth, or what the whole country would receive as
such, was unattainable. But an adjustment of the problem, founded on
mutual conciliation and a desire to be just, was not impossible.

The two objects to be accomplished were to avoid the offence that
might be given to the Northern States by making the slaves in direct
terms an ingredient in the rule of representation, and, on the other
hand, to concede to the Southern States the right to have their
representation enhanced by the same enumeration of their slaves that
might be adopted for the purpose of apportioning direct taxation.
These objects were effected by an arrangement proposed by Wilson. It
consisted, first, in affirming the maxim that representation ought to
be proportioned to direct taxation; and then, by directing a
periodical census of the free inhabitants, and three fifths of all
other persons, to be taken by the authority of the United States, and
that the direct taxation should be apportioned among the States
according to this census of persons. The principle was thus
established, that, for the purpose of direct taxation, the number of
inhabitants in each State should be assumed as the measure of its
relative wealth; and that its right of representation should be
regulated by the same measure; and as the slaves were to be admitted
into the rule for taxation in the proportion of three fifths of their
number only,--apparently upon the supposition that the labor of a
slave is less valuable to the State than the labor of a freeman,--so
they were in the same proportion only to enhance the representation.
This expedient was adopted by the votes of a large majority of the
States;[107] but since it had been moved as an amendment to the
proposition previously accepted, which affirmed that the
representation ought to be regulated by the combined rule of numbers
and wealth, it appeared, when brought into that connection, to rest
the representation of the slaveholding States in respect to the
slaves, in part at least, upon the idea of property. To avoid all
discrepancy in the application of the rule to the two subjects of
representation and taxation, Governor Randolph proposed to strike the
word "wealth" from the resolution; and this, having been done by a
vote nearly unanimous,[108] left the enumeration of the slaves for
both purposes an enumeration of persons, in less than their whole
numbers; placing them in the rule for taxation, not as property and
subjects of taxation, but as constituting part of an assumed measure
of the wealth of a State, just as the free inhabitants constituted
another part of the same measure, and placing them in the same ratio
and in the same capacity in the rule for representation.[109]

The basis of the House of Representatives having been thus agreed to,
the remaining part of the report, which involved the basis of the
Senate, was then taken up for consideration. Wilson, King, Madison,
and Randolph still opposed the equality of votes in the Senate, upon
the ground that the government was to act upon the people and not upon
the States, and therefore the people, not the States, should be
represented in every branch of it. But the whole plan of
representation embraced in the amended report, including the equality
of votes in the Senate, was adopted, by a bare majority, however, of
the States present.[110]

When this result was announced, Governor Randolph complained of its
embarrassing effect on that part of the plan of a constitution which
concerned the powers to be vested in the general government; all of
which, he said, were predicated upon the idea of a proportionate
representation of the States in both branches of the legislature. He
desired an opportunity to modify the plan, by providing for certain
cases to which the equality of votes should be confined; and in order
to enable both parties to consult informally upon some expedient that
would bring about a unanimity, he proposed an adjournment. On the
following morning, we are told by Mr. Madison, the members opposed to
an equality of votes in the Senate became convinced of the impolicy of
risking an agreement of the States upon any plan of government by an
inflexible opposition to this feature of the scheme proposed, and it
was tacitly allowed to stand.[111]

Great praise is due to the moderation of those who made this
concession to the fears and jealousies of the smaller States. That it
was felt by them to be a great concession, no one can doubt, who
considers that the chief cause which had brought about this convention
of the States was the inefficiency of the "federal" principle on which
the former Union had been established. Looking back to all that had
happened since the Confederation was formed,--to the repeated failures
of the States to comply with the constitutional demands of the
Congress, and to the entire impracticability of a system that had no
true legislative basis, and could therefore exert no true legislative
power,--we ought not to be surprised that the retention of the
principle of an equal State representation in any part of the new
government should have been resisted so strenuously and so long.

That the final concession of this point was also a wise and fortunate
determination, there can be no doubt. Those who made it probably did
not foresee all its advantages, or comprehend all its manifold
relations. They looked to it, in the first instance, as the means of
securing the acceptance of the Constitution by all the States, and
thus of preventing the evils of a partial confederacy. They probably
did not at once anticipate the benefits to be derived from giving to a
majority of the States a check upon the legislative power of a
majority of the whole people of the United States. Complicated as this
check is, it both recognizes and preserves the residuary sovereignty
of the States; it enables them to hold the general government within
its constitutional sphere of action; and it is in fact the only
expedient that could have been successfully adopted, to preserve the
State governments, and to avoid the otherwise inevitable alternative
of conferring on the general government plenary legislative power upon
all subjects. It is a part of the Constitution which it is vain to try
by any standard of theory; for it was the result of a mere compromise
of opposite theories and conflicting interests. Its best eulogium is
to be found in its practical working, and in what it did to produce
the acceptance of a constitution believed, at the time of its
adoption, to have given an undue share of influence and power to the
larger members of the confederacy.[112]


NOTE ON THE POPULATION OF THE SLAVEHOLDING AND NON-SLAVEHOLDING
STATES.

     Although, at the time of the formation of the Constitution,
     slavery had been expressly abolished in two of the States
     only (Massachusetts and New Hampshire), the framers of that
     instrument practically treated all but the five Southern
     States as if the institution had been already abolished
     within their limits, and counted all the colored persons
     therein, whether bond or free, as part of the free
     population; assuming that the eight Northern and Middle
     States would be free States, and that the five Southern
     States would continue to be slave States. This appears from
     the whole tenor of the debates, in which the line is
     constantly drawn, as between slaveholding and
     non-slaveholding States, so as to throw eight States upon the
     Northern and five upon the Southern side. I have found also,
     in a newspaper of that period (New York Daily Advertiser,
     February 5, 1788), the following

     "ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED IN
     THE FEDERAL CONVENTION, ACCORDING TO THE MOST ACCURATE
     ACCOUNTS THEY COULD OBTAIN."

  New Hampshire,                                      102,000
  Massachusetts,                                      360,000
  Rhode Island,                                        58,000
  Connecticut,                                        202,000
  New York,                                           238,000
  New Jersey,                                         138,000
  Pennsylvania,                                       360,000
  Delaware,                                            37,000
                                                    ---------1,495,000
  Maryland, including three fifths of 80,000 negroes, 218,000
  Virginia,        "          "      280,000    "     420,000
  North Carolina,  "          "       60,000    "     200,000
  South Carolina,  "          "       80,000    "     150,000
  Georgia,         "          "       20,000    "      90,000
                                                    ---------1,078,000

     The authenticity of this table is established by referring to
     a speech made by General Pinckney in the legislature of South
     Carolina, in which he introduced and quoted it at length.
     (Elliot's Debates, IV. 283.)

     From this it appears that the estimated population of the
     eight Northern and Middle States, adopted in the Convention,
     was 1,495,000; that of the five Southern States (including
     three fifths of an estimated number of negroes) was
     1,078,000. Comparing this estimate with the results of the
     first census, it will be seen that the _total_ population of
     the eight Northern and Middle States exceeds the _federal_
     population of the five Southern States, in the census of
     1790, in about the same ratio as the former exceeds the
     latter in the estimate employed by the Convention. Thus in
     1790 the _total_ population of the eight Northern and Middle
     States, including all slaves, was 1,845,595; the _federal_
     population of the five Southern States, including three
     fifths of the slaves, was 1,540,048;--excess 305,547. In the
     estimate of 1787, the population allotted to the eight
     Northern and Middle States was 1,495,000; that allotted to
     the five Southern States, counting only three fifths of the
     estimated number of slaves, was 1,078,000;--excess in favor
     of the eight States, 417,000. This calculation shows,
     therefore, that, in estimating the population of the
     different States for the purpose of adjusting the first
     representation in Congress, the Convention applied the rule
     of three fifths of the slaves to the five Southern States
     only, and that as to the other eight States no discrimination
     was made between the different classes of their inhabitants.
     Other methods of comparing the estimate of 1787 with the
     census of 1790 will lead to the same conclusion.

FOOTNOTES:

[86] The committee consisted of Gerry, Ellsworth, Yates, Patterson,
Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin.

[87] The committee was appointed on the 2d of July, and made their
report on the 5th. The Convention in the interval transacted no
business.

[88] See further as to this exclusive power of the House, _post._

[89] Madison, Butler, Gouverneur Morris, and Wilson.

[90] Five States voted to retain it, three voted against it, and three
were divided. This was treated as an affirmative vote. Elliot, V. 255.

[91] Connecticut, New York, New Jersey, Delaware, Maryland, North
Carolina, _ay_ 6; Pennsylvania, Virginia, South Carolina, _no_,3;
Massachusetts, Georgia, divided. Ibid. 285, 286.

[92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King.

[93] They gave to New Hampshire, 2; Massachusetts, 7; Rhode Island, 1;
Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware,
1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5;
Georgia, 2.

[94] Elliot, V. 287, 288.

[95] This apportionment gave to New Hampshire, 3; Massachusetts, 8;
Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4;
Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North
Carolina, 5; South Carolina, 5; Georgia, 3.

[96] See Mr. Gorham's explanation; Madison, Elliot, V. 288.

[97] Sherman and Gorham.

[98] Of North Carolina.

[99] Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia,
North Carolina, _ay_, 6; Delaware, Maryland, South Carolina, Georgia,
_no_, 4. The votes of South Carolina and Georgia were given in the
negative, because they desired that the blacks should be included in
the census equally with the whites. For the same reason, as we shall
see presently, those States voted against the other branch of the
proposition, which would give but three fifths of the slaves. But upon
what principle, unless it was from general opposition to all numerical
representation, the State of Delaware should have voted with them on
both of these features of the proposed census, is, I confess, to me
inexplicable.

[100] Connecticut, Virginia, North Carolina, Georgia, _ay_, 4;
Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South
Carolina, _no_, 6. South Carolina voted in the negative, for a reason
suggested in the previous note, _ante_, p. 153.

[101] See the note on the population of the slaveholding and
non-slaveholding States, at the end of this chapter.

[102] See Mr. Jefferson's notes of this debate in the Congress of
1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp.
496-498.

[103] Samuel Chase of Maryland.

[104] See _ante_, Vol. I. pp. 210-213.

[105] See Mr. Madison's notes of the debate in the Congress of 1783,
Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783).
_Ante_, Vol. I. p. 213.

[106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and
Governor Randolph. Elliot, V. 294-305.

[107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina,
Georgia, _ay_, 6; New Jersey, Delaware, _no_, 2; Massachusetts, South
Carolina, divided.

[108] The only opposition was from Delaware, the vote of which was
divided.

[109] See the note at the end of this chapter.

[110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr.
Spaight, _no_), _ay_, 5; Pennsylvania, Virginia, South Carolina,
Georgia, _no_, 4; Massachusetts divided (Mr. Gerry, Mr. Strong, _ay_,
Mr. King, Mr. Gorham, _no_). The delegates of New York were all
absent; Messrs. Yates and Lansing left the Convention on the 5th of
July, after the principle of popular representation had been adopted.
Colonel Hamilton was absent on private business. If the two former had
been present, the vote of the State would doubtless have been given in
favor of the report, on account of the basis which it gave to the
Senate.

[111] Elliot, V. 319.

[112] Mr. Madison, who was to the last a strenuous opponent of the
equality of votes in the Senate, candidly and truly stated its merits
in the 62d number of the Federalist, as they had been disclosed to him
by subsequent reflection.



CHAPTER VIII.

POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE
EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW
STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF
REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE
CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR
OFFICE.--SEAT OF GOVERNMENT.


Of the remaining subjects comprehended in the report of the committee
of the whole, it will only be necessary here to make a brief statement
of the action of the Convention, before we arrive at the stage at
which the principles agreed upon were sent to a committee of detail to
be cast into the forms of a Constitution.

Recurring to the sixth resolution in the report of the committee of
the whole, an addition was made to its provisions, by inserting a
power to legislate in all cases for the general interests of the
Union; and for the clause giving the legislature power to negative
certain laws of the States, the principle was substituted of making
the legislative acts and treaties of the United States the supreme law
of the land, and binding upon the judiciaries of the several States.

The constitution of the executive department had been provided for, by
declaring that it should consist of a single person, to be chosen by
the national legislature for a period of seven years, and to be
ineligible a second time; to have power to carry into execution the
national laws, to appoint to offices not otherwise provided for, to be
removable on impeachment, and to be paid for his services by a fixed
stipend out of the national treasury. The mode of constituting this
department did not, as in the case of the legislative, present the
question touching the nature of the government described by the terms
"federal" and "national." It was entirely consistent with either
plan,--with that of a union formed by the States in their political
capacities, or with one formed by the people of the States, or with
one partaking of both characters,--that the executive should be chosen
mediately or immediately by the people, or by the legislatures or
executives of the States, or by the national legislature.

The same contest, therefore, between the friends and opponents of a
national system was not obliged to be renewed upon this department. So
long as the form to be given to the institution was consistent with a
system of republican government,--so long as it provided an elective
magistrate, not appointed by an oligarchy, and holding by a
responsible and defeasible tenure of office,--whether he should be
chosen by the people of the States, or by some of their other public
servants, would not affect the principles on which the legislative
power of the government was to be founded. But this very latitude of
choice, as to the mode of appointment, and the duration of office,
opened the greatest diversity of opinion. In the earlier stages of the
formation of a plan of government of three distinct departments, the
idea of an election of the executive by the people at large was
scarcely entertained at all. It was not supposed to be practicable for
the people of the different States to make an intelligent and wise
choice of the kind of magistrate then contemplated,--a magistrate
whose chief function was to be that of an executive agent of the
legislative will. Regarding the office mainly in this light, without
having yet had occasion to look at it closely as the source of
appointments to other offices and as the depositary of a check on the
legislative power itself, the framers of the plan now under
consideration had proposed to vest the appointment in the legislature,
as the readiest mode of obtaining a suitable incumbent, without the
tumults and risks of a popular election. But the power of appointment
to other offices and the revisionary check on legislation were no
sooner annexed to the executive office, than it was perceived that
some provision must be made for obviating the effects of its
dependence on the legislative branch. An executive chosen by the
legislature must be to a great extent the creature of those from whom
his appointment was derived.

To counteract this manifestly great inconvenience and impropriety, the
incumbent of the executive office was to be ineligible a second time.
This, however, was to encounter one inconvenience by another, since
the more faithfully and successfully the duties of the station might
be discharged, the stronger would be the reasons for continuing the
individual in office. The ineligibility was accordingly stricken out.
Hence it was, that a variety of propositions concerning the length of
the term of office were attempted, as expedients to counteract the
evils of an election by the legislature of a magistrate who was to be
re-eligible; and among them was one which contemplated "good behavior"
as the sole tenure of the office.[113] This proposition was much
considered; it received the votes of four States out of ten;[114] and
it is not at all improbable that it would have received a much larger
support, if the supposed disadvantages of an election by the people
had led a majority of the States finally to retain the mode of an
election by the national legislature.[115] But in consequence of the
impossibility of agreeing upon a proper length of term for an
executive that was to be chosen by the legislature, the majority of
the Convention went back to the plan of making the incumbent
ineligible a second time, which implied that some definite term was to
be adopted. This again compelled them to consider in what other mode
the executive could be appointed, so as to avoid the evil of
subjecting the office to the unrestrained influence of the
legislature, and to remove the restriction upon the eligibility of the
officer for a second term.

In an election of the chief executive magistrate by the people, voting
directly, the right of suffrage would have to be confined to the free
inhabitants of the several States. But even with respect to the free
inhabitants, the right of suffrage was differently regulated in the
different States; and there must either be a uniform and special rule
established as to the qualification of voters for the executive of the
United States, or the rule of suffrage of each State must be adopted
for this as well as other national elections. In the Northern States,
too, the right of suffrage was much more diffused than in the
Southern, and the question must arise, as it had arisen in the
construction of the representative system, whether the States were to
possess an influence in the choice of a chief magistrate for the Union
in proportion to the number of their inhabitants, or only in
proportion to their qualified voters, or their free inhabitants.

The substitution of electors would obviate these difficulties, by
affording the means of determining the precise weight in the election
that should be allotted to each State, without attempting to prescribe
a uniform rule of suffrage in the primary elections, and without being
obliged to settle the discrepancies between the election laws of the
States. They furnished, also, the means of removing the election from
the direct action of the people, by confiding the ultimate selection
to a body of men, to be chosen for the express purpose of exercising a
real choice among the eminent individuals who might be thought fit for
the station. But the mode of choice was complicated with the other
questions of re-eligibility, and especially with that of impeachment.
If appointed by electors, there would be danger of their being
corrupted by the person in office, if he were eligible a second time,
or by a candidate who had not filled the station. Hence there would be
a propriety in making the executive subject to impeachment while in
office. If chosen by the legislature, it seemed to be generally
agreed, that the executive ought not to be eligible a second time; but
whether he ought to be subject to impeachment, and by what tribunal,
was a subject on which there were great differences of opinion.

The consequence of this great diversity of views was, that the plan
embraced in the ninth resolution of the committee of the whole was
retained and sent to the committee of detail.

With respect to the judiciary, several important changes were made in
the plan of the committee of the whole. The prohibition against any
increase of salary of the individuals holding the office was stricken
out, and the restriction was made applicable only to a diminution of
the salary. The cognizance of impeachments of national officers was
taken from their jurisdiction, and the principle was adopted which
extended that jurisdiction to "all cases arising under the national
laws, and to such other questions as may involve the national peace
and harmony." The power to appoint inferior tribunals was confirmed to
the national legislature.

The fourteenth resolution, providing for the admission of new States,
was unanimously agreed to.

The fifteenth resolution, providing for the continuance of Congress
and for the completion of their engagements, was rejected.

The principle of the sixteenth resolution, which provided a guaranty
by the United States of the institutions of the States, was
essentially modified. In the place of a guaranty applicable both to a
republican constitution and the "existing laws" of a State, the
declaration was adopted, "that a republican form of government shall
be guaranteed to each State, and that each State shall be protected
against foreign and domestic violence."[116]

The seventeenth resolution, that provision ought to be made for future
amendments, was adopted without debate.[117]

The eighteenth resolution, requiring the legislative, executive, and
judicial officers of the States to be bound by oath to support the
Articles of Union, was then extended to include the officers of the
national government.

The next subject that occurred in the order of the resolutions was
that of the proposed ratification of the new system by the people of
the States, acting through representative bodies to be expressly
chosen for this purpose, instead of referring it for adoption to the
legislatures of the States.

As this is a subject on which very different theories are maintained,
arising partly from different views of the historical facts, and as
there are very different degrees of importance attached to the mode in
which the framers of the Constitution provided for its establishment,
it will be convenient here to state the position in which they found
themselves at this period in their deliberations, the purposes which
they had in view, and the steps which they took to accomplish their
objects.

They were engaged in preparing a new system of government, and in
providing for its introduction. When they were first called together,
the general purpose of the States may seem to have been confined to a
mode of introducing changes in the fundamental compact of the Union,
such as was provided for by the Articles of Confederation. But the
Convention had found itself obliged, from the sheer necessities of the
country, to go far beyond the Confederation, and to make a total
change in the principle of the government. It became, therefore,
necessary for them to provide a mode of enacting or establishing this
change, which would commend itself to the confidence of the people, by
its conformity with their previous ideas of constitutional action, and
be at the same time consonant with reason and truth.

Again, there was a peculiarity in their situation, which rendered it
quite different from that of the delegates of a people who had
abolished a pre-existing government, and had assembled a
representative body to form a new one. The Confederation still
existed. As a compact between sovereign States, providing for a
special mode in which alterations of its articles were to be made, and
limiting their adoption to the case of unanimous consent, it was still
in force. The States, in their political capacities as sovereign
communities, were still the parties to the compact, and their
legislatures alone were clothed with the authority to change its
provisions. It was necessary, therefore, to encounter and to solve the
question, whether a new government, framed upon a principle unlike
that of the Confederation, and embracing an entirely different
legislative authority, could be established in the mode prescribed by
the existing compact of the States; and if it could not, whether there
existed any power, apart from the State governments, by which it could
be established and be clothed with a paramount authority, resting on a
basis of principle, and not upon force, fiction, or fraud.

In the early formation of the Union that took place before the
Declaration of Independence, questions of the constitutional power of
the Colonies which became members of it could scarcely arise at all,
since those who undertook to act for and to represent the people of
each Colony were proceeding upon revolutionary principles and rights.
But before the Articles of Confederation, which constituted the first
union of the States upon ascertained and settled principles of
government, had been agreed upon, many of the State constitutions were
formed; and when those Articles were entered into, the State
governments represented the sovereignty of distinct political
communities, and were entirely competent to form such a confederacy as
was then established by their joint and unanimous consent. All the
obligations which the Confederation imposed upon its members rested
upon the States in their corporate capacities; and the government of
each of them was competent to assume, for the State, such obligations,
and to enter into such stipulations. In the same way, it was competent
to the State governments to make alterations in the Articles of
Confederation, by unanimous consent, so long as those alterations did
not change the fundamental principle of the Union, which was that of a
system of legislation for the States in their corporate capacities.

But when it was proposed to reverse this principle, and to create a
government, external to the governments of the States, clothed with
authority to exact obedience from the individual inhabitants of the
States, and to act upon them directly, the question might well arise,
whether the State governments were competent to cede such an authority
over their constituents, and whether it could be granted by anybody
but the people themselves. It might, it is true, be said, that their
constitutions made the governments of the States the depositaries of
the sovereignty and political powers of the people inhabiting those
States. But if this was true, in a general sense, for the purpose of
exercising the political powers of the people, it was not true, in any
sense, for the purpose of granting away those powers to other agents.
The latter could only be done by those who had constituted the first
class of agents, and who were able to say that certain portions of the
authority with which they had been clothed should be withdrawn, and be
revested in another class.

Undoubtedly it would have been possible to have given the Constitution
of the United States a theoretical adoption by the people of the
States, by committing its acceptance to the State legislatures,
relying on the acquiescence of the people in their acts. But there
were two objections to this course. The one was, that the legislatures
were believed less likely than the people to favor the establishment
of such a government as that now proposed. The other was, that the
kind of legal fiction by which the presumed assent of the people must
be reached, in this mode, would leave room for doubts and disputes as
to the real basis and authority of the government, which ought, if
possible, to be avoided.

Another difficulty of a kindred nature rendered it equally inexpedient
to rely on the sanction of the State legislatures. The States, in
their corporate capacities, and through the agency of their respective
governments, were parties to a federal system, which they had
stipulated with each other should be changed only by unanimous
consent. The Constitution, which was now in the process of formation,
was a system designed for the acceptance of the people of all the
States, if the assent of all could be obtained; but it was also
designed for the acceptance of a less number than the whole of the
States, in case of a refusal of some of them; and it was at this time
highly probable that at least two of them would not adopt it. Rhode
Island had never been represented in the Convention; and the whole
course of her past history, with reference to enlargements of the
powers of the Union, made it quite improbable that she would ratify
such a plan of government as was now to be presented to her. The State
of New York had, through her delegates, taken part in the proceedings,
until the final decision, which introduced into the government a
system of popular representation; but two of those delegates, entirely
dissatisfied with that decision, had withdrawn from the Convention,
and had gone home to prepare the State for the rejection of the
scheme.[118] The previous conduct of the State had made it not at all
unlikely that their efforts would be successful. Nor were there
wanting other indications of the most serious dissatisfaction, on the
part of men of great influence in some of the other States. Unanimity
had already become hopeless, if not impracticable; and it was
necessary, therefore, to look forward to the event of an adoption of
the system by a less number than the whole of the States, and to make
it practicable for a less number to form the new Union for which it
provided. This could only be done by presenting it for ratification to
the people of each State, who possessed authority to withdraw the
State government from the Confederation, and to enter into new
relations with the people of such other States as might also withdraw
from the old and accept the new system.

There was another and more special reason for resorting to the direct
sanction of the people of the States, which has already been referred
to in general terms, but for which we must look still more closely
into the nature of the system proposed. In that system, the
legislative authority was to reside in the concurrent action of a
majority of the people and a majority of the States. How could the
State government of Delaware, for example, confer upon a majority of
the representatives of the people of all the States, and a majority of
the representatives of all the States, that might adopt the new
Constitution, power to bind the people of Delaware by a legislative
act, to which their own representatives might have refused their
assent? The State government was appointed and established for the
purpose of binding the people of the State by legislative acts of
their own servants and immediate representatives; but not for the
purpose of consenting that legislative power over the people of that
State should be exercised by agents not delegated by themselves. Yet
such a consent was involved in the new system now to be proposed, and
was, in some way--by some safe and competent method--to be obtained. A
legislative power was to be created by the assembling in one branch of
the representatives of the people of all the States, in proportion to
their numbers, and in the other branch by assembling an equal number
of representatives of each State, without regard to its numbers of
people. The authority of law, upon all subjects that might be
committed to this legislative power, was to attend the acts of
concurring majorities in both branches, even against the separate and
adverse will of the minority. It was impossible to rest this
authority upon any other basis than that of the ratification of the
system by the people of each State, to be given by themselves in
primary assemblies, or by delegates expressly chosen in such
assemblies, and appointed to give it, if they should see fit. A system
founded on the consent of the legislatures would be a treaty between
sovereign States; a system founded on the consent of the people would
be a constitution of government, ordained by those who hold and
exercise all political power.[119]

There were not wanting, however, strong advocates of a reference to
the State legislatures; and the votes of three of the States were at
first given for that mode of ratifying the Constitution; but the other
plan was finally adopted with nearly unanimous consent.[120]

Still, the resolution under consideration contained a feature which
wisely provided for the assent of the existing Congress to the changes
that were to be made by the establishment of the new system. It
proposed that the plan of the new Constitution should be first
submitted to Congress for its approbation, and that the legislatures
of the States should then recommend to the people to institute
assemblies to consider and decide on its adoption. These steps were to
be taken, in pursuance of the course marked out when the Convention
was called. The resolution of Congress, which recommended the
Convention, required that the alterations which it might propose
should be "agreed to in Congress and confirmed by the States"; and
such was the tenor of the instructions given to the delegates of most
of the States. This direction would be substantially complied with, if
the legislatures, on receiving and considering the system, should
recommend to the people to appoint representative bodies to consider
and decide on its adoption, and the people should so adopt and ratify
it.[121]

The topics covered by the report of the committee of the whole had
thus been passed upon in the Convention, and the outline of the
Constitution had been framed. There remained only three subjects on
which it would be necessary to act in order to provide for a complete
scheme of government. It was necessary to determine the number of
senators to which each State should be entitled; to ascertain the
qualifications of members of the government; and to determine at what
place the government should be seated.

The number of senators was not agreed upon at the time when the
principle of an equal representation of the States in the Senate was
adopted; and it had not been determined in what method they were to
vote. It was now settled that the Senate should consist of two members
from each branch, and that they should vote _per capita_. To this
arrangement one State only dissented. The vote of Maryland was given
against it, through the influence of Luther Martin, who considered
this method of voting a departure from the idea of the States being
represented in the Senate. But this objection was obviously unsound;
for although, by this method of voting, the influence of a State _may_
be divided, its members have the _power_ to concur, and to make the
vote of the State more effectual than it would be if it had only a
single suffrage.

The subject of the qualifications to be required of the executive, the
judiciary, and the members of both branches of the legislature, went
to the committee of detail in a form which was subsequently modified
in a very important particular. It was at first proposed,[122] that
landed property, as well as citizenship in the United States, should
be embraced in the qualifications. But there were solid objections to
this requirement, founded on the circumstances of the country and the
nature of a republican constitution. So far as the people of the
United States could be said to be divided into classes, the principal
divisions related to the three occupations of agriculture, commerce,
and manufactures of all kinds, including in the latter all who
exercised the mechanic arts. As a general rule, it was supposed at
that time to be true, that the commercial and manufacturing classes
held very little landed property; and that although they were much
less numerous than the agricultural class, yet that they were likely
to increase in a far greater ratio than they had hitherto.
Practically, therefore, to require a qualification of landed property,
would be to give the offices of the general government to the
agricultural interest. These considerations led the Convention, by a
nearly unanimous vote, to reject the proposition for a landed
qualification.[123]

Very serious doubts were also entertained, whether, in constructing a
republican constitution, it was proper to pay so much deference to
distinctions of wealth as would be implied by the adoption of any
property qualification for office. There are two methods in which the
interests of property may be secured, in the organization of a
representative government. It may be required as a qualification,
either of the elector or the elected, that the individual shall
possess a certain amount of property. But it seems scarcely
consistent with the spirit of a republican constitution, that this
should be made a qualification for holding office, although it may be
quite proper to require some degree of property, or its equivalent
evidence of moral fitness, as a qualification for the right of
choosing to office. The solid reason for a distinction is, that, in
order to have a property qualification for office at all efficient, or
even of any perceptible operation, it must be made so large that it
will tend to exclude persons of real talent, or even the highest
capacity for the public service. Whereas, a property qualification may
be applied to the exercise of the elective franchise, by requiring so
small an amount that it will practically exclude but few who possess
the moral requisites for its intelligent and honest use; and even to
this extent the operation of such a rule may be, as it is in some
well-governed communities, greatly relieved, by substituting for the
positive possession of any amount of property, that species of
evidence of moral fitness for the right of voting that is implied by
the capacity to pay a very small portion of the public burdens.[124]

At the present stage, however, of the formation of the Constitution
of the United States, the opinions of a majority of the States were in
favor of a property qualification for office, as well as a requirement
of citizenship; and the committee of detail were instructed
accordingly, with, the dissent of only three of the States.[125] But,
as we shall afterwards find, another view of the subject finally
prevailed.[126]

No definite action was had, at this stage, upon the subject of a seat
of the national government; but it was almost unanimously agreed to be
the general sense of the country, that it ought not to be placed at
the seat of any State government, or in any large commercial city; and
that provision ought to be made by Congress, as speedily as possible,
for the establishment of a national seat and the erection of suitable
public buildings.

Such was the character of the system sent to a committee of detail, to
be put into the form of a constitution.[127] Before it was sent to
them, however, a notice was given by an eminent Southern member, which
looked to the introduction of provisions not yet contemplated or
discussed. According to Mr. Madison's minutes, General Pinckney rose
and reminded the Convention, that, if the committee should fail to
insert some security to the Southern States against an emancipation of
slaves, and taxes on exports, he should be bound by duty to his State
to vote against their report.[128]

The resolutions as adopted by the Convention, together with the
propositions offered by Mr. Charles Pinckney on the 29th of May, and
those offered by Mr. Patterson on the 15th of June, were then referred
to a committee of detail.[129]

FOOTNOTES:

[113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the
person appointed in the place of Patrick Henry, who declined to attend
the Convention.

[114] New Jersey, Pennsylvania, Delaware, Virginia, _ay_, 4;
Massachusetts, Connecticut, Maryland, North Carolina, South Carolina,
Georgia, _no_, 6.

[115] I understand Mr. Madison to have voted for this proposition, and
that his view of it was, that it might be a necessary expedient to
prevent a dangerous union of the legislative and executive
departments. He said that the propriety of the plan of an executive
during good behavior would depend on the practicability of instituting
a tribunal for impeachments, as certain and as adequate in the case of
the executive as in the case of the judges. His remarks, of course,
were predicated upon the idea of a final necessity for retaining the
choice of the executive by the legislature. In a note to his
"Debates," appended to the vote on this question, it is said: "This
vote is not to be considered as any certain index of opinion, as a
number in the affirmative probably had it chiefly in view to alarm
those attached to a dependence of the executive on the legislature,
and thereby to facilitate some final arrangement of a contrary
tendency. The avowed friends of an executive 'during good behavior'
were not more than three or four, nor is it certain they would have
adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed
friends of an executive during good behavior," I understand Mr.
Madison to mean those who would have preferred that tenure, under all
forms and modes of election. I can trace in the debates no evidence
that any other person except Gouverneur Morris was indifferent to the
mode in which the executive should be chosen, provided he held his
place by this tenure. Whether Hamilton held this opinion, and adhered
to it throughout, is a disputed point. In a letter to Timothy
Pickering, written in 1803, he says that his final opinion was against
an executive during good behavior, "on account of the increased danger
to the public tranquillity incident to the election of a magistrate of
this degree of permanency." In proof of this view of the subject, he
remarks: "In the plan of a constitution which I drew up while the
Convention was sitting, and which I communicated to Mr. Madison about
the close of it, perhaps a day or two after, the office of President
has no longer duration than for three years." (Niles's Register,
November 7, 1812.) In this he was probably mistaken. (See Hamilton's
Works, II. 401. Madison, Elliot, V. 584.)

[116] _Ante_, Chap. V.

[117] At this point (July 23) John Langdon and Nicholas Gilman took
their seats as delegates from New Hampshire.

[118] See the letter of Messrs. Yates and Lansing to Governor Clinton,
Elliot, I. 480.

[119] There seems to be a sound distinction between the two, which was
pointed out by Mr. Madison. He said that "he considered the difference
between a system founded on the legislatures only, and one founded on
the people, to be the true difference between a _league_, or treaty,
and a _constitution_. The former, in point of _moral obligation_,
might be as inviolable as the latter. In point of _political
operation_, there were two important distinctions in favor of the
latter. First, a [State] law violating a treaty ratified by a
pre-existing [State] law might be respected by the judges as a law,
though an unwise or perfidious one. A [State] law violating a
constitution established by the people themselves would be considered
by the judges as null and void. Secondly, the doctrine laid down by
the law of nations in the case of treaties was, that a breach of any
one article by any of the parties freed the other parties from their
engagements. In the case of a union of people under one constitution,
the nature of the pact had always been understood to exclude such an
interpretation." Elliot, V. 355, 356.

[120] Connecticut, Delaware, and Maryland voted for an amendment to
the original resolution, which, if adopted, would have submitted the
Constitution to the State legislatures. The resolution to refer it to
assemblies chosen for the purpose by the people, was subsequently
adopted, with the dissent of one State only, Delaware.

[121] For the history of the proceedings relating to the institution
of the national Convention, see _Ante_, Vol. I. Book III. Chap. VI.

[122] By Mason.

[123] Maryland alone voted to retain it.

[124] As in the State of Massachusetts; where the sole money
qualification required of a voter is the payment of an annual poll-tax
of $1.25, or about five shillings _sterling_.

[125] Connecticut, Pennsylvania, and Delaware.

[126] See the title "Qualifications" in the Index.

[127] The committee of detail, appointed July 24, consisted of Messrs.
Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357.

[128] By a security against an emancipation of slaves, General
Pinckney meant some provision for their extradition in cases of escape
into the free States. This is apparent from the history of the
extradition clause; and it is upon the notice thus given by him, and
the action had upon this clause, that the statement often made, which
assumes that the Constitution could not have been established without
some provision on this subject--as well as upon general reasoning from
the circumstances of the case--rests for its proof. See as to the
origin and history of the extradition clause, _post_, p. 450.

[129] The resolutions, as referred, were as follows:--

"1. _Resolved_, That the government of the United States ought to
consist of a supreme legislative, judiciary, and executive.

"2. _Resolved_, That the legislature consist of two branches.

"3. _Resolved_, That the members of the first branch of the
legislature ought to be elected by the people of the several States
for the term of two years; to be paid out of the public treasury; to
receive an adequate compensation for their services; to be of the age
of twenty-five years at least; to be ineligible to, and incapable of
holding, any office under the authority of the United States, (except
those peculiarly belonging to the functions of the first branch,)
during the term of service of the first branch.

"4. _Resolved_, That the members of the second branch of the
legislature of the United States ought to be chosen by the individual
legislatures; to be of the age of thirty years at least; to hold their
offices for six years, one third to go out biennially; to receive a
compensation for the devotion of their time to the public service; to
be ineligible to, and incapable of holding, any office under the
authority of the United States, (except those peculiarly belonging to
the functions of the second branch,) during the term for which they
are elected, and for one year thereafter.

"5. _Resolved_, that each branch ought to possess the right of
originating acts.

"6. _Resolved_, That the national legislature ought to possess the
legislative rights vested in Congress by the Confederation; and,
moreover, to legislate in all cases for the general interests of the
Union, and also in those to which the States are separately
incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation.

"7. _Resolved_, That the legislative acts of the United States, made
by virtue and in pursuance of the Articles of Union, and all treaties
made and ratified under the authority of the United States, shall be
the supreme law of the respective States, as far as those acts or
treaties shall relate to the said States, or their citizens and
inhabitants; and that the judiciaries of the several States shall be
bound thereby in their decisions, anything in the respective laws of
the individual States to the contrary notwithstanding.

"8. _Resolved_, That, in the original formation of the legislature of
the United States, the first branch thereof shall consist of
sixty-five members; of which number, New Hampshire shall send three;
Massachusetts, eight; Rhode Island, one; Connecticut, five; New York,
six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland,
six; Virginia, ten; North Carolina, five; South Carolina, five;
Georgia, three. But as the present situation of the States may
probably alter in the number of their inhabitants, the legislature of
the United States shall be authorized, from time to time, to apportion
the number of representatives; and in case any of the States shall
hereafter be divided, or enlarged by addition of territory, or any two
or more States united, or any new States created within the limits of
the United States, the legislature of the United States shall possess
authority to regulate the number of representatives, in any of the
foregoing cases, upon the principle of their number of inhabitants,
according to the provisions hereafter mentioned, namely: Provided
always, that representation ought to be proportioned to direct
taxation. And in order to ascertain the alteration in the direct
taxation which may be required from time to time by the changes in the
relative circumstances of the States,--

"9. _Resolved_, That a census be taken within six years from the first
meeting of the legislature of the United States, and once within the
term of every ten years afterwards, of all the inhabitants of the
United States, in the manner and according to the ratio recommended by
Congress in their resolution of the 18th of April, 1783; and that the
legislature of the United States shall proportion the direct taxation
accordingly.

"10. _Resolved_, That all bills for raising or appropriating money,
and for fixing the salaries of the officers of the government of the
United States, shall originate in the first branch of the legislature
of the United States, and shall not be altered or amended by the
second branch; and that no money shall be drawn from the public
treasury, but in pursuance of appropriations to be originated by the
first branch.

"11. _Resolved_, That, in the second branch of the legislature of the
United States, each State shall have an equal vote.

"12. _Resolved_, That a national executive be instituted, to consist
of a single person; to be chosen by the national legislature, for the
term of seven years; to be ineligible a second time; with power to
carry into execution the national laws; to appoint to offices in cases
not otherwise provided for; to be removable on impeachment, and
conviction of malepractice or neglect of duty; to receive a fixed
compensation for the devotion of his time to the public service, to be
paid out of the public treasury.

"13. _Resolved_, That the national executive shall have a right to
negative any legislative act; which shall not be afterwards passed,
unless by two third parts of each branch of the national legislature.

"14. _Resolved_, That a national judiciary be established, to consist
of one supreme tribunal, the judges of which shall be appointed by the
second branch of the national legislature; to hold their offices
during good behavior; to receive punctually, at stated times, a fixed
compensation for their services, in which no diminution shall be made
so as to affect the persons actually in office at the time of such
diminution.

"15. _Resolved_, That the national legislature be empowered to appoint
inferior tribunals.

"16. _Resolved_, That the jurisdiction of the national judiciary shall
extend to cases arising under laws passed by the general legislature;
and to such other questions as involve the national peace and harmony.

"17. _Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory, or
otherwise, with the consent of a number of voices in the national
legislature less than the whole.

"18. _Resolved_, That a republican form of government shall be
guaranteed to each State; and that each State shall be protected
against foreign and domestic violence.

"19. _Resolved_, That provision ought to be made for the amendment of
the Articles of Union, whensoever it shall seem necessary.

"20. _Resolved_, That the legislative, executive, and judiciary
powers, within the several States, and of the national government,
ought to be bound, by oath, to support the Articles of Union.

"21. _Resolved_, That the amendments which shall be offered to the
Confederation by the Convention ought, at a proper time or times,
after the approbation of Congress, to be submitted to an assembly or
assemblies of representatives, recommended by the several
legislatures, to be expressly chosen by the people to consider and
decide thereon.

"22. _Resolved_, That the representation in the second branch of the
legislature of the United States shall consist of two members from
each State, who shall vote _per capita_.

"23. _Resolved_, That it be an instruction to the committee to whom
were referred the proceedings of the Convention for the establishment
of a national government, to receive a clause, or clauses, requiring
certain qualifications of property and citizenship in the United
States, for the executive, the judiciary, and the members of both
branches of the legislature of the United States."



CHAPTER IX.

REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE
LEGISLATURE.--TIME AND PLACE OF ITS MEETING.


Having now reached that stage in the process of framing the
Constitution at which certain principles were confided to a committee
of detail, the reader will now have an opportunity to observe the
farther development and application of those principles, the mode in
which certain chasms in the system were supplied, and the final
arrangements which produced the complete instrument that was submitted
to the people of the United States for their adoption.

Great power was necessarily confided to a committee, to whom was
intrusted the first choice of means and of terms that were to give
practical effect to the principles embraced in the resolutions of the
Convention. There might be a substantial compliance with the
intentions previously indicated by the debates and votes of the
Convention, and at the same time the mode in which those intentions
should be carried out by the committee might require a new
consideration of the subjects involved. Hence it is important to
pursue the growth of the Constitution through the entire proceedings.

The committee of detail presented their report on the 6th of August,
in the shape of a Constitution divided into three-and-twenty Articles.
It is not my purpose to examine this instrument in the precise order
of its various provisions, or to describe all the discussions which
took place upon its minute details. It is more consonant with the
general purpose of this history, to group together the different
features of the Constitution which relate to the structure and powers
of the different departments and to the fundamental purposes of the
new government.[130]

In accordance with the previous decisions of the Convention, the
committee of detail had provided that the legislative power of the
United States should be vested in a Congress, to consist of two
branches, a House of Representatives and a Senate, each of which
should have a negative on the other. But as to the persons by whom the
members of the national legislature were to be appointed, no decision
had been made in the Convention, excepting that the members of the
House were to be chosen by the people of the States, and the members
of the Senate by their legislatures. Nothing had been settled
respecting the qualifications of the electors of representatives; nor
had the qualifications of the members of either branch been
determined.[131] Two great questions, therefore, remained open;
first, with what class of persons was the election of members of the
popular branch of the legislature to be lodged; secondly, what persons
were to be eligible to that and to the other branch. In substance,
these questions resolved themselves into the inquiry, in whom was the
power of governing America to be vested; for it is to be remembered
that, according to a decision of the Convention not yet reversed, the
national executive was to be chosen by the national legislature.

So far as the people of the United States had evinced any distinct
purpose, at the time when this Convention was assembled, it appeared
to be well settled that the new system of government, whatever else it
might be, should be republican in its form and spirit. When the States
had assembled in Convention, it became the result of a necessary
compromise between them, that the appointment of one branch of the
legislature should be vested in the people of the several States. But
who were to be regarded as the people of a State, for this purpose,
was a question of great magnitude, now to be considered.

The situation of the country, in reference to this as well as to many
other important questions, was peculiar. The streams of emigration,
which began to flow into it from Europe at the first settlement of the
different Colonies, had been interrupted only by the war of the
Revolution. On the return of peace, the tide of emigration again began
to set towards the new States, which had risen into independent
existence on the western shores of the Atlantic by a struggle for
freedom that had attracted the attention of the whole civilized world;
and when the Constitution of the United States was about to be framed,
large and various classes of individuals in the different countries of
Europe were eagerly watching the result of the experiment. It appeared
quite certain that great accessions of population would follow the
establishment of free institutions in America, if they should be
framed in a liberal and comprehensive spirit. It became necessary,
therefore, to meet and provide for the presence in the country of
great masses of persons not born upon the soil, who had not
participated in the efforts by which its freedom had been acquired,
and who would bring with them widely differing degrees of intelligence
and of fitness to take part in the administration of a free
government. The place that was to be assigned to these persons in the
political system of the country was a subject of much solicitude to
its best and most thoughtful statesmen.

On the one hand, all were aware that there existed among the native
populations of the States a very strong American feeling, engendered
by the war, and by the circumstances attending its commencement, its
progress, and its results. It was a war begun and prosecuted for the
express purpose of obtaining and securing, for the people who
undertook it, the right of self-government. It necessarily created a
great jealousy of foreign influence, whether exerted by governments or
individuals, and a strong fear that individuals would be made the
agents of governments in the exercise of such influence. The political
situation of the country under the Confederation had increased rather
than diminished these apprehensions. The relations of the States with
each other and with foreign nations, under a system which admitted of
no efficient national legislation binding upon all alike, afforded, or
were believed to afford, means by which the policy of other countries
could operate on our interests with irresistible force.

There was, therefore, among the people of the United States, and among
their statesmen who were intrusted with the formation of the
Constitution, a firmly settled determination, that the institutions
and legislation of the country should be effectually guarded against
foreign control or interference.

On the other hand, it was extremely important that nothing should be
done to prevent the immigration from Europe of any classes of men who
were likely to become useful citizens. The States which had most
encouraged such immigration had advanced most rapidly in population,
in agriculture, and the arts. There were, too, already in the country
many persons of foreign birth, who had thoroughly identified
themselves with its interests and its fate, who had fought in its
battles, or contributed of their means to the cause of its freedom;
and some of these men were at this very period high in the councils of
the nation, and even occupied places of great importance in the
Convention itself.[132] They had been made citizens of the States in
which they resided, by the State power of naturalization; and they
were in every important sense Americans. It was impossible, therefore,
to adopt a rule that would confine the elective franchise, or the
right to be elected to office, to the native citizens of the States.
The States themselves had not done this; and the institutions of the
United States could not rest on a narrower basis than the institutions
of the States.

Another difficulty which attended the adjustment of the right of
suffrage grew out of the widely differing qualifications annexed to
that right under the State constitutions, and the consequent
dissatisfaction that must follow any effort to establish distinct or
special qualifications under the national Constitution. In some of the
States, the right of voting was confined to "freeholders"; in
others,--and by far the greater number,--it was extended beyond the
holders of landed property, and included many other classes of the
adult male population; while in a few, it embraced every male citizen
of full age who was raised at all above the level of the pauper by the
smallest evidence of contribution to the public burdens. The
consequence, therefore, of adopting any separate system of
qualifications for the right of voting under the Constitution of the
United States would have been, that, in some of the States, there
would be persons capable of voting for the highest State officers,
and yet not permitted to vote for any officer of the United States;
and that in the other States persons not admitted to the exercise of
the right under the State constitution might have enjoyed it in
national elections.

This embarrassment, however, did not extend to the qualifications
which it might be thought necessary to establish for the right of
being elected to office under the general government. As the State and
the national governments were to be distinct systems, and the officers
of each were to exercise very different functions, it was both
practicable and expedient for the Constitution of the United States to
define the persons who should be eligible to the offices which it
created.

At the same time, in relation to both of these rights--that of
electing and that of being elected to national offices--it was highly
necessary that the national authority, either by direct provision of
the Constitution, or by a legislative power to be exercised under it,
should determine the period when the rights of citizenship could be
acquired by persons of foreign birth. From the first establishment of
the State governments down to the present period, those governments
had possessed the power of naturalization. Their rules for the
admission of foreigners to the privileges of citizenship were
extremely unlike; and if the power of prescribing the rule were to be
left to them, and the Constitution of the United States were to adopt
the qualifications of voters fixed by the laws of the States, or were
to be silent with respect to the qualifications of its own officers,
the rights both of electing and of being elected to national office
would, in respect to citizenship, be regulated by no uniform
principle. If, therefore, the right of voting for any class of federal
officers were to be in each State the same as that given by the State
laws for the election of any class of State officers, it was quite
essential that the States should surrender to the general government
the power to determine, as to persons of foreign birth, what period of
residence in the country should be required for the rights of
citizenship. It was equally necessary that the national government
should possess this power, if it was intended that citizenship should
be regarded at all in the selection of those who were to fill the
national offices.

The committee of detail, after a review of all these considerations,
presented a scheme that was well adapted to meet the difficulties of
the case. They proposed that the same persons who, by the laws of the
several States, were admitted to vote for members of the most numerous
branch of their own legislatures, should have the right to vote for
the representatives in Congress. The adoption of this principle
avoided the necessity of disfranchising any portion of the people of a
State by a system of qualifications unknown to their laws. As the
States were the best judges of the circumstances and temper of their
own people, it was certainly best to conciliate them to the support of
the new Constitution by this concession. It was possible, indeed, but
not very probable, that they might admit foreigners to the right of
voting without the previous qualification of citizenship. It was
possible, too, that they might establish universal suffrage in its
most unrestricted sense. But against all these evils there existed one
great security; namely, that the mischiefs of an absolutely free
suffrage would be felt most severely by themselves in their domestic
concerns; and against the special danger to be apprehended from the
indiscriminate admission of foreigners to the right of voting, another
feature of the proposed plan gave the national legislature power to
withhold from persons of foreign birth the privileges of general
citizenship, although a State might confer upon them the power of
voting without previous naturalization.

This part of the scheme consisted in the transfer of the power of
naturalization to the general government; a power that was necessarily
made exclusive, by being made a power to establish a _uniform_ rule on
the subject.

These provisions were not only necessary in the actual situation of
the States, but they were also in harmony with the great purpose of
the representative system that had been agreed upon as the basis of
one branch of the legislative power. In that branch the people of each
State were to be represented; but they were to remain the people of a
distinct community, whose modes of exercising the right of
self-government would be peculiar to themselves; and that would
obviously be the most successful representation of such a people in a
national assembly, which most conformed itself to their habits and
customs in the organization of their own legislative bodies.
Accordingly, although very strenuous efforts were made to introduce
into the Constitution of the United States particular theories with
regard to popular suffrage,--some of the members being in favor of one
restriction and some of another,--the rule which referred the right in
each State to its domestic law was sustained by a large majority of
the Convention. But the power that was given, by unanimous consent,
over the subject of naturalization, shows the strong purpose that was
entertained of vesting in the national authority an efficient
practical control over the States in respect to the political rights
to be conceded to persons not natives of the country.[133]

As we have already seen, the committee of detail had been instructed
to report qualifications of property and citizenship for the members
of every department of the government. But they found the subject so
embarrassing, that they contented themselves with providing that the
legislature of the United States should have authority to establish
such uniform qualifications for the members of each house, with regard
to property, as they might deem expedient.[134]

They introduced, however, into their draft of a Constitution, an
express provision that every member of the House of Representatives
should be of the age of twenty-five years at least, should have been a
citizen of the United States for at least three years before his
election, and should be, at the time of his election, a resident in
the State in which he might be chosen.[135]

A property qualification for the members of the House of
Representatives was a thing of far less consequence than the fact of
citizenship. Indeed, there might well be a doubt, whether a
requisition of this kind would not be in some degree inconsistent with
the character that had already been impressed upon the government, by
the compromise which had settled the nature of the representation in
the popular branch. It was to be a representation of the people of the
States; and as soon as it was determined that the right of suffrage in
each State should be just as broad as the legislative authority of the
State might see fit to make it, the basis of the representation became
a democracy, without any restrictions save those which the people of
each State might impose upon it for themselves. If then the
Constitution were to refrain from imposing on the electors a property
qualification, for the very purpose of including all to whom the
States might concede the right of voting within their respective
limits, thus excluding the idea of a special representation of
property, it was certainly not necessary to require the possession of
property by the representatives, or to clothe the national legislature
with power to establish such a qualification. The clause reported by
the committee of detail for this purpose was accordingly left out of
the Constitution.[136]

But with respect to citizenship, as a requisite for the office of a
representative or a senator, very different considerations applied.
With whatever degree of safety the States might be permitted to
determine who should vote for a representative in the national
legislature, it was necessary that the Constitution itself should meet
and decide the grave questions, whether persons of foreign birth
should be eligible at all, and if so, at what period after they had
acquired the general rights of citizens. It seems highly probable,
from the known jealousies and fears that were entertained of foreign
influence, that the eligibility to office would have been strictly
confined to natives, but for a circumstance to which allusion has
already been made. The presence of large numbers of persons of foreign
birth, who had adopted, and been adopted by, some one of the States,
who stood on a footing of equality with the native inhabitants, and
some of whom had served the country of their adoption with great
distinction and unsuspected fidelity, was the insuperable obstacle to
such a provision. The objection arising from the impolicy of
discouraging future immigration had its weight; but it had not the
decisive influence which was conceded to the position of those
foreigners already in the country and already enjoying the rights of
citizenship under the laws and constitutions of the several States.
That men should be perpetually ineligible to office under a
constitution which they had assisted in making, could not be said to
be demanded by the people of America.

The subject, therefore, was found of necessity to resolve itself into
the question, what period of previous citizenship should be required.
The committee of detail proposed three years. Other members desired a
much longer period. Hamilton, on the other hand, supported by Madison,
proposed that no definite time should be established by the
Constitution, and that nothing more should be required than
citizenship and inhabitancy. He thought that the discretionary power
of determining the rule of naturalization would afford the necessary
means of control over the whole subject. But this plan did not meet
the assent of a majority of the States, and, after various periods had
been successively rejected, the term of seven years' citizenship as a
qualification of members of the House of Representatives was finally
established.

But was this qualification to apply to those foreigners who were then
citizens of the States, and who, as such, would have the right to vote
on the acceptance of the Constitution? Were they to be told that,
although they could ratify the Constitution, they could not be
eligible to office under it, until they had enjoyed the privileges of
citizenship for seven years? They had been invited hither by the
liberal provisions of the State institutions; they had been made
citizens by the laws of the State where they resided; the Articles of
Confederation gave them the privileges of citizens in every other
State; and thus the very communities by which this Convention had been
instituted were said to have pledged their public faith to these
persons, that they should stand upon an equality with all other
citizens. It is a proof that their case was thought to be a strong
one, and it is a striking evidence of the importance attached to the
principles involved, that an effort was made to exempt them from the
operation of the rule requiring a citizenship of seven years, and that
it was unsuccessful.[137]

It is impossible now to determine how numerous this body of persons
were, in whose favor the attempt was made to establish an exception to
the rule; and their numbers constitute a fact that is now historically
important only in its bearing upon a principle of the Constitution.
From the arguments of those who sought to introduce the exception, it
appears that fears were entertained that the retrospective operation
of the rule would expose the acceptance of the Constitution to great
hazards; for the States, it was said, would be reduced to the dilemma
of rejecting it, or of violating the faith pledged to a part of their
citizens. Accordingly, the implied obligation of the States to secure
to their citizens of foreign birth the same privileges with natives
was urged with great force, and it was inferred from the notorious
inducements that had been held out to foreigners to emigrate to
America, and to avail themselves of the easy privileges of
citizenship. Whether the United States were in any way bound to redeem
these alleged pledges of the States, was a nice question of casuistry,
that was a good deal debated in the discussion. But in truth there was
no obligation of public faith in the case, the disregard of which
could be justly made a matter of complaint by anybody. When the States
had made these persons citizens, and through the Articles of
Confederation had conferred upon them the privileges of citizens in
every State in the Union, they did not thereby declare that such
adopted citizens should be immediately eligible to any or all of the
offices under any new government which the American people might see
fit to establish at any future time. To have said that they never
should be eligible, would have been to establish a rule that would
have excluded some of the most eminent statesmen in the country. But
the period in their citizenship when they should be made eligible, was
just as much an open question of public policy, as the period of life
at which all native and all adopted citizens should be deemed fit to
exercise the functions of legislators. If the citizen of foreign birth
was disfranchised by the one requirement, the native citizen was
equally disfranchised by the other, until the disability had ceased.
The question was decided, therefore, and rightly so, upon large
considerations of public policy; and the principal reasons that
exercised a controlling influence upon the decision, and caused the
refusal to establish any exception to the rule, afford an interesting
proof of the national tone and spirit that were intended to be
impressed upon the government at the beginning of its history.

It was quite possible, as all were ready to concede, that the time
might arrive, when the qualification of so extended a period of
citizenship as seven years might not be practically very important;
since the people, after having been long accustomed to the duty of
selecting their representatives, would not often be induced to confer
their suffrages upon a foreigner recently admitted to the position of
a citizen. The mischiefs, too, that might be apprehended from such
appointments would be far less, after the policy of the government had
been settled and the fundamental legislation necessary to put the
Constitution into activity had been accomplished. But the first
Congress that might be assembled under the Constitution would have a
work of great magnitude and importance to perform. Indeed, the
character which the government was to assume would depend upon the
legislation of the few first years of its existence. Its commercial
regulations would then be mainly determined. The relations of the
country with foreign nations, its position towards Europe, its rights
and duties of neutrality, its power to maintain a policy of its own,
would all then be ascertained and settled. Nothing, therefore, could
be more important, than to prevent persons having foreign attachments
from insinuating themselves into the public councils; and with this
great leading object in view, the Convention refused, though by a mere
majority only of the States, to exempt from the rule those foreigners
who had been made citizens under the naturalization laws of the
States.[138]

Thus it appears that the Constitution of the United States discloses
certain distinct purposes with reference to the participation of
foreigners in the political concerns of the country. In the first
place, it was clearly intended that there should be no real
discouragement to immigration. The position and history of the country
from its first settlement, its present and prospective need of labor
and capital, its territorial extent, and the nature of its free
institutions, were all inconsistent with any policy that would prevent
the redundant population of Europe from finding in it an asylum.
Accordingly, the emigrant from foreign lands was placed under no
perpetual disqualifications. The power of naturalization that was
conferred upon the general government, and the accompanying
circumstances attending its transfer by the States, show an intention
that some provision should be made for the admission of emigrants to
the privileges of citizenship, and that in this respect the
inducements to a particular residence should be precisely equal
throughout the whole of the States. The power was not to remain
dormant, under ordinary circumstances, although there might
undoubtedly be occasions when its exercise should be suspended. The
intention was, that the legislature of the United States should always
exercise its discretion on the subject; but the existence of the
power, and the reasons for which it was conferred, made it the duty of
the legislature to exercise that discretion according to the wants of
the country and the requirements of public policy.

In the second place, it is equally clear that the founders of the
government intended that there should be a real, as well as formal,
renunciation of allegiance to the former sovereign of the emigrant,--a
real adoption, in principle and feeling, of the new country to which
he had transferred himself,--an actual amalgamation of his interests
and affections with the interests and affections of the native
population,--before he should have the power of acting on public
affairs. This is manifest, from the discretionary authority given to
Congress to vary the rule of naturalization from time to time as
circumstances might require,--an authority that places the States
under the necessity of restricting their right of suffrage to
citizens, if they would avoid the evils to themselves of an
indiscriminate exercise of that right by all who might choose to claim
it. The period of citizenship, too, that was required as a
qualification for a seat in the popular branch of the government, and
which was extended to nine years for the office of senator, was placed
out of the discretionary power of change by the legislature, in order
that an additional term, beyond that required for the general rights
of citizenship, might for ever operate to exclude the dangers of
foreign predilections and an insufficient knowledge of the duties of
the station.

No one who candidly studies the institutions of America, and considers
what it was necessary for the founders of our government to foresee
and provide for, can hesitate to recognize the wisdom and the
necessity of these provisions. A country of vast extent opened to a
boundless immigration, which nature invited and which man could
scarcely repel,--a country, too, which must be governed by popular
suffrage,--could not permit its legislative halls to be invaded by
foreign influence. The independence of the country would have been a
vain and useless achievement, if it had not been followed by the
practical establishment of the right of self-government by the native
population; and that right could be secured for their posterity only
by requiring that foreigners, who claimed to be regarded as a part of
the people of the country, should be first amalgamated in spirit and
interest with the mass of the nation.

No other changes were made in the proposed qualifications for the
representatives, excepting to require that the person elected should
be an _inhabitant_ of the State for which he might be chosen, at the
time of election, instead of being a _resident_. This change of
phraseology was adopted to avoid ambiguity; the object of the
provision being simply to make the representation of the State a real
one.

The Convention, as we have seen, had settled the rule for computing
the number of inhabitants of a State, for the purposes of
representation, and had made it the same with that for apportioning
direct taxes among the States.[139] The committee of detail provided
that there should be one representative for every forty thousand
inhabitants, when Congress should find it necessary to make a new
apportionment of representatives; a ratio that had not been previously
sanctioned by a direct vote of the Convention, but which had been
recommended by the committee of compromise, at the time when the
nature of the representation in both houses was adjusted.[140] This
ratio was now adopted in the article relating to the House of
Representatives; but not before an effort was made to exclude the
slaves from the enumeration.[141] The renewed discussion of this
exciting topic probably withdrew the attention of members from the
consideration of the numbers of the representatives, and nothing more
was done, at the time we are now examining, than to make a provision
that the number should not exceed one for every forty thousand
inhabitants. But at a subsequent stage of the proceedings,[142] before
the Constitution was sent to the committee of revision, Wilson,
Madison, and Hamilton endeavored to procure a reconsideration of this
clause, for the purpose of establishing a more numerous representation
of the people. Hamilton, who had always and earnestly advocated the
introduction of a strong democratic element into the Constitution,
although he desired an equally strong check to that element in the
construction of the Senate, is represented to have expressed himself
with great emphasis and anxiety respecting the representation in the
popular branch. He avowed himself, says Mr. Madison, a friend to
vigorous government, but at the same time he held it to be essential
that the popular branch of it should rest on a broad foundation. He
was seriously of opinion, that the House of Representatives was on so
narrow a scale as to be really dangerous, and to warrant a jealousy in
the people for their liberties.[143]

But the motion to reconsider was lost,[144] and it was not until the
Constitution had been engrossed, and was about to be signed, that an
alteration was agreed to, at the suggestion of Washington. This was
the only occasion on which he appears to have expressed an opinion
upon any question depending in the Convention. With the habitual
delicacy and reserve of his character, he had confined himself
strictly to the duties of a presiding officer, throughout the
proceedings. But now, as the Constitution was likely to go forth with
a feature that would expose it to a serious objection, he felt it to
be his duty to interpose. But it was done with great gentleness. As he
was about to put the question, he said that he could not forbear
expressing his wish that the proposed alteration might take place. The
smallness of the proportion of representatives had been considered by
many members, and was regarded by him, as an insufficient security for
the rights and interests of the people. Late as the moment was, it
would give him much satisfaction to see an amendment of this part of
the plan adopted. The intimation was enough; no further opposition was
offered, and the ratio was changed to one representative for thirty
thousand inhabitants.[145]

It is now necessary to trace the origin of a peculiar power of the
House of Representatives, that is intimately connected with the
practical compromises on which the government was founded, although
the circumstances and reasons of its introduction into the
Constitution are not generally understood. I refer to the exclusive
power of originating what are sometimes called "money bills." In
making this provision, the framers of our government are commonly
supposed to have been guided wholly by the example of the British
constitution, upon an assumed analogy between the relations of the
respective houses in the two countries to the people and to each
other. This view of the subject is not wholly correct.

At an early period in the deliberations, when the outline of the
Constitution was prepared in a committee of the whole, a proposition
was brought forward to restrain the Senate from originating money
bills, upon the ground that the House would be the body in which the
people would be the most directly represented, and in order to give
effect to the maxim which declares that the people should hold the
purse-strings. The suggestion was immediately encountered by a general
denial of all analogy between the English House of Lords and the body
proposed to be established as the American Senate. In truth, as the
construction of the Senate then stood in the resolutions agreed to in
the committee of the whole, the supposed reason for the restriction in
England would have been inapplicable; for it had been voted that the
representation in the Senate should be upon the same proportionate
rule as that of the House, although the members of the former were to
be chosen by the legislatures, and the members of the latter by the
people, of the States. It was rightly said, therefore, at this time,
that the Senate would represent the people as well as the House; and
that if the reason in England for confining the power to originate
money bills to the House of Commons was that they were the immediate
representatives of the people, the reason had no application to the
two branches proposed for the Congress of the United States.[146] It
was however admitted, that, if the representation in the Senate should
not finally be made a proportionate representation of the people of
the several States, there might be a cause for introducing this
restriction.[147] This intimation referred to a reason that
subsequently became very prominent. But when first proposed, the
restriction was rejected in the committee by a vote of seven States
against three; there being nothing involved in the question at that
time excepting the theoretical merits of such a distinction between
the powers of the two houses.[148]

But other considerations afterwards arose. When the final struggle
came on between the larger and the smaller States, upon the character
of the representation in the two branches, the plan of restricting
the origin of money bills to the House of Representatives presented
itself in a new aspect. The larger States were required to concede an
equality of representation in the Senate; and it was supposed,
therefore, that they would desire to increase the relative power of
the branch in which they would have the greatest numerical strength.
The five States of Massachusetts, Pennsylvania, Virginia, North
Carolina, and South Carolina had steadily resisted the equality of
votes in the Senate. When it was at length found that the States were
equally divided on this question, and it became necessary to appoint
the first committee of compromise, the smaller States tendered to the
five larger ones the exclusive money power of the House, as a
compensation for the sacrifice required of them. It was so reported by
the committee of compromise; and although it met with resistance in
the Convention, and was denied to be a concession of any importance to
the larger States, it was retained in the report,[149] and thus formed
a special feature of the resolutions sent to the committee of detail.
But those resolutions had also established the equality of
representation in the Senate, and the whole compromise, with its
several features, had therefore been once fully ascertained and
settled. A strong opposition, nevertheless, continued to be made to
the exclusive money power of the House, by those who disapproved of it
on its merits; and when the article by which it was given in the
reported draft prepared by the committee of detail was reached, it was
stricken out by a very large vote of the States.[150] In this vote
there was a concurrence of very opposite purposes on the part of the
different States composing the majority. New Jersey, Delaware, and
Maryland, for example, feeling secure of their equality in the Senate,
were not unwilling to allow theoretical objections to prevail, against
the restriction of money bills to the branch in which they would
necessarily be outnumbered. On the other hand, some of the delegates
of Pennsylvania, Virginia, and South Carolina, still unwilling to
acquiesce in the equality of representation in the Senate, may have
hoped to unhinge the whole compromise. There was still a third party
among the members, who insisted on maintaining the compromise in all
its integrity, and who considered that the nature of the
representation in the Senate, conceded to the wishes of the smaller
States, rendered it eminently fit that the House alone should have the
exclusive power to originate money bills.[151]

This party finally prevailed. They rested their first efforts chiefly
upon the fact that the Senate was to represent the States in their
political character. Although it might be proper to give such a body a
negative upon the appropriations to be made by the representatives of
the people, it was not proper that it should tax the people. They
first procured a reconsideration of the vote which had stricken out
this part of the compromise. They then proposed, in order to avoid an
alleged ambiguity, that bills for raising money for the purpose of
_revenue_, or appropriating money, should originate in the House, and
should not be so amended or altered in the Senate as to increase or
diminish the sum to be raised, or change the mode of levying it, or
the object of its appropriation.[152] An earnest and somewhat excited
debate followed this proposition, but it was lost.[153]

In a day or two, however, another effort was made, conceding to the
Senate the power to amend, as in other cases, but confining the right
to the House of originating bills for raising money for the purpose of
revenue, or for appropriating the same, and for fixing the salaries of
officers of the government.[154]

This new proposition was postponed for a long time, until it became
necessary to refer several topics not finally acted upon to a
committee of one member from each State.[155] Among these subjects
there was one that gave rise to protracted conflicts of opinion, which
will be examined hereafter. It related to the mode of choosing the
executive. In the plan reported by the committee of detail, pursuant
to the instructions of the Convention, the executive was to be chosen
by the national legislature, for a period of seven years, and was to
be ineligible a second time. Great efforts were subsequently made to
change both the mode of appointment and the tenure of the office, and
the whole subject was finally referred with others to a committee. In
this committee, a new compromise, which has attracted but little
attention, embraced the long-contested point concerning the origin of
money bills. In this compromise, as in so many of the others on which
the Constitution was founded, two influences are to be traced. There
were in the first place what may be called the merits of a
proposition, without regard to its bearing on the interests of
particular States; and in the second place there were the local or
State interests, which entered into the treatment of every question by
which they could be affected. In studying the compromises of the
Constitution, it is constantly necessary to observe how the
arrangement finally made was arrived at by the concurrence of votes
given from these various motives.

It was now proposed in the new committee, that the executive should be
chosen by electors, appointed by each State in such manner as its
legislature might direct, each State to have a number of electors
equal to the whole number of its senators and representatives in
Congress; that the person having the greatest number of votes,
provided it were a majority of the electors, should be declared
elected; that if there should be more than one having such a majority,
the Senate should immediately choose one of them by ballot; and that
if no person had a majority, the Senate should immediately choose by
ballot from the five highest candidates on the list returned by the
electors. This plan of vesting the election in the Senate, in case
there should be no choice by the electors, was eagerly embraced by the
smaller States, because it was calculated to restore to them the
equilibrium which they would lose in the primary election, by the
preponderance of votes held by the larger States. At the same time, it
gave to the larger States great influence in bringing forward the
candidates, from whom the ultimate choice must be made, when no choice
had been effected by the electors; and it put it in their power, by a
combination of their interests against those of the smaller States, to
choose their candidate at the first election. To this great influence,
many members from the larger States desired, naturally, to add the
privilege of confining the origin of revenue bills to the House of
Representatives. They found in the committee some members from the
smaller States willing to concede this privilege, as the price of an
ultimate election of the executive by the Senate, and of other
arrangements which tended to elevate the tone of the government, by
increasing the power and influence of the Senate. They found others
also who approved of it upon principle. The compromise was accordingly
effected in the committee, and in this attitude the question
concerning revenue bills again came before the Convention.[156]

But there, a scheme that seemed likely to elevate the Senate into a
powerful oligarchy, and that would certainly put it in the power of
seven States, not containing a third of the people, to elect the
executive, when there failed to be a choice by the electors, met with
strenuous resistance. For these and other reasons, not necessary to be
recounted here, the ultimate choice of the executive was transferred
from the Senate to the House of Representatives.[157] This change, if
coupled with the concession of revenue bills to the House, without the
right to amend in the Senate, would have thrown a large balance of
power into the former assembly; and in order to prevent this
inequality, a provision was made, in the words used in the
Constitution of Massachusetts, that the Senate might propose or concur
with amendments, as on other bills. With this addition, the
restriction of the origin of bills for raising revenue to the House of
Representatives finally passed, with but two dissentient votes.[158]

The qualifications of the Senators had been made superior in some
respects to those of the members of the House of Representatives, on
account of the peculiar duties which it was intended they should
discharge, and the length of their term of office. They were to be of
the age of thirty years; to be inhabitants of the States for which
they might be chosen; and in the report of the committee of detail the
period of four years' citizenship was made one of the requirements.
But so great was the jealousy of foreign influence, and so important
was the position of a senator likely to become, that, when this
particular qualification came to be considered, it was found to be
altogether impossible to make so short a period of citizenship
acceptable to a majority. According to the plan then contemplated, the
Senate was to be a body of great power. Its legislative duties were to
form but a part of its functions. It was to have the making of
treaties, and the appointment of ambassadors and judges of the Supreme
Court, without the concurrent action of any other department of the
government. In addition to these special powers, it was to have a
concurrent vote with the House of Representatives in the election of
the executive. It was also to exercise the judicial function of
hearing and determining questions of boundary between the States.

This formidable array of powers, which were subsequently much modified
or entirely taken away, but which no one could then be sure would not
be retained as they had been proposed, rendered it necessary to guard
the Senate with peculiar care. A very animated discussion, in which
the same reasons were urged on both sides which had entered into the
debate on the qualifications of the representatives, enforced by the
peculiar dangers to which the Senate might be exposed, at length
resulted in a vote establishing the period of nine years' citizenship
as a qualification for the office of a senator.[159]

The origin of the number of senators and of the method of voting forms
an interesting and important topic, to which our inquiries should now
be directed. We have already seen that, in the formation of the
Virginia plan of government, as it was digested in the committee of
the whole, the purpose was entertained, and was once sanctioned by a
bare majority of the States, of giving to both branches of the
legislature a proportional representation of the respective
populations of the States; and that the sole difference between the
two chambers then contemplated was to be in the mode of election. But
in the actual situation of the different members of the confederacy,
it was a necessary consequence of such a representation, that the
Senate would be made by it inconveniently large, whether the members
were to be elected by the legislatures, the executives, or the people
of the States. It would, in fact, have made the first Senate to
consist of eighty or a hundred persons, in order to have entitled the
State of Delaware to a single member. This inconvenience was pointed
out at an early period, by Rufus King;[160] but it did not prevent the
adoption of this mode of representation. On the one side of that long
contested question were those who desired to found the whole system of
representation, as between the States, upon their relative numbers of
inhabitants. On the other side were those who insisted upon an
absolute equality between the States. But among the former there was a
great difference of opinion as to the best mode of choosing the
senators,--whether they should be elected by the people in districts,
by the legislatures or the executives of the States, or by the other
branch of the national legislature. So strongly, however, were some of
the members even from the most populous States impressed with the
necessity of preserving the State governments in some connection with
the national system, that, while they insisted on a proportional
representation in the Senate, they were ready to concede to the State
legislatures the choice of its members, leaving the difficulty arising
from the magnitude of the body to be encountered as it might be.[161]
The delegates of the smaller States accepted this concession, in the
belief that the impracticability of constructing a convenient Senate
in this mode would compel an abandonment of the principle of unequal
representation, and would require the substitution of the equality for
which they contended.

In this expectation they were not disappointed; for when the system
framed in the committee came under revision in the Convention, and the
severe and protracted contest ended at last in the compromise
described in a previous chapter, the States were not only permitted to
choose the members of the Senate, but they were admitted to an
equality of representation in that branch, and the subject was freed
from the embarrassment arising from the numbers that must have been
introduced into it by the opposite plan. From this point, the sole
questions that required to be determined related to the number of
members to be assigned to each State, and the method of voting. The
first was a question of expediency only; the last was a question both
of expediency and of principle.

The constant aim of the States, which had from the first opposed a
radical change in the structure of the government, was to frame the
legislature as nearly as possible upon the model of the Congress of
the Confederation. In that assembly, each State was allowed not more
than seven, and not less than two members; but in practice, the
delegations of the States perpetually varied between these two
numbers, or fell below the lowest, and in the latter case the State
was not considered as represented. The method of voting, however,
rendered it unimportant how many members were present from a State,
provided they were enough to cast the vote of the State at all; for
all questions were decided by the votes of a majority of the States,
and not of a majority of the members voting. I have already had
occasion more than once to notice the fact,--and it is one of no
inconsiderable importance,--that the first Continental Congress,
assembled in 1774, adopted the plan of giving to each Colony one vote,
because it was impossible to ascertain the relative importance of the
different Colonies. The record that was then made of this reason for a
method of voting that would have been otherwise essentially unjust,
shows quite clearly that a purpose was then entertained of adopting
some other method at a future time. But when the Articles of
Confederation were framed, in 1781, it appears as clearly from the
discussions in Congress, not only that the same difficulty of
obtaining the information necessary for a different system continued,
but that some of the States were absolutely unwilling to enter the
Confederation upon any other terms than a full federal equality. In
this way the practice of voting by States in Congress was perpetuated
down to the year 1787. It had come to be regarded by some of the
smaller States, notwithstanding the injustice and inconvenience which
it constantly produced, as a kind of birthright; and when the Senate
of the United States came to be framed, and an equality of
representation in it was conceded, some of the members of those States
still considered it necessary to preserve this method of voting, in
order to complete the idea of State representation, and to enable the
States to protect their individual rights.[162] But it is obvious
that, for this purpose, the question had lost its real importance,
when an equal number of Senators was assigned to each State; since,
upon every measure that can touch the separate rights and interests of
a State, the unanimity which is certain to prevail among its
representatives makes the vote of the State as efficient as it could
be if it were required to be cast as a unit, while the chances for its
protection are increased by the opportunity of gaining single votes
from the delegations of other States.

These and similar considerations ultimately led a large majority of
the States to prefer a union of the plan of an equal number of
senators from each State with that which would allow them to vote _per
capita_.[163] The number of two was adopted as the most convenient,
under all the circumstances, because most likely to unite the despatch
of business with the constant presence of an equal number from every
State.

With this peculiar character, the outline of the institution went to
the committee of detail. On the consideration of their report, these
provisions, as we have seen, became complicated with the restriction
of "money bills" to the House of Representatives, and the choice of
the executive. The mode in which those controversies were finally
settled being elsewhere stated, it only remains here to record the
fact that the particular nature and form of the representation in the
Senate was generally acquiesced in, when its relations to the other
branches of the government had been determined.

The difference of origin of the two branches of the legislature made
it necessary to provide for different modes of supplying the vacancies
that might occur in them. The obvious way of effecting this in the
case of a vacancy in the office of a representative was to order a new
election by the people, who can readily assemble for such a purpose;
and the duty of ordering such elections was imposed on the executives
of the States, because those functionaries would be best informed as
to the convenience of their meeting. But the State legislatures, to
whom the choice of senators was to be confided, would be in session
for only a part of the year; and to summon them for the special
purpose of filling a vacancy in the Senate might occasion great
inconvenience. The committee of detail, therefore, provided that
vacancies in the Senate might be supplied by the executive of the
State until the next meeting of its legislature.

It is now time to turn to the examination of that great scheme of
separate and concurrent powers, which it had been proposed to confer
upon the Senate, and the suggestion of which influenced to a great
degree the qualifications of the members, their term of office, and
indeed the entire construction of this branch of the legislature. The
primary purpose of a Senate was that of a second legislative chamber,
having equal authority in all acts of legislation with the first, the
action of both being necessary to the passage of a law. As the
formation of the Constitution proceeded, from the single idea of such
a second chamber, without any special character of representation to
distinguish it from the first, up to the plan of an equal
representation of the States, there was a strong disposition
manifested to accumulate power in the body for which this peculiar
character had been gained. It had been made the depositary of a direct
and equal State influence; and this feature of the system had become
fixed and irrevocable before the powers of the other departments, or
their origin or relations, had been finally settled. The consequence
was, that for a time, wherever jealousy was felt with regard to the
executive or the judiciary,--wherever there was a doubt about
confiding in the direct action of the people,--wherever a chasm
presented itself, and the right mode of filling it did not
occur,--there was a tendency to resort to the Senate.

Thus, when the committee of detail were charged with the duty of
preparing the Constitution according to the resolutions agreed upon in
the Convention, the Senate had not only been made a legislative body,
with authority co-ordinate to that of the House, but it had received
the separate power of appointing the judges, and the power to give a
separate vote in the election of the executive. The power to make war
and treaties, the appointment of ambassadors, and the trial of
impeachments, had not been distinctly given to any department; but
the general intention to be inferred from the resolutions was, that
these matters should be vested in one or both of the two branches of
the legislature. To the executive, the duty had been assigned, which
the name of the office implies, of executing the laws; to which had
been added a revisionary check upon legislation, and the appointment
to offices in cases not otherwise provided for. The judicial power had
been described in general and comprehensive terms, which required a
particular enumeration of the cases embraced by the principles laid
down; but it had not been distinctly foreseen, that one of the cases
to which those principles must lead would be an alleged conflict
between an act of legislation and the fundamental law of the
Constitution. The system thus marked out was carried into detail by
the committee, by vesting in the Senate the power to make treaties, to
appoint ambassadors and judges of the Supreme Court, and to adjudicate
questions of boundary between the States; by giving to the two
branches of the legislature the power to declare war; by assigning the
trial of impeachments to the Supreme Court, and enumerating the other
cases of which it was to have cognizance; and by providing for the
election of the executive by the legislature, and confining its powers
and duties to those prescribed for it by the resolutions.

It is scarcely necessary to pause for the purpose of commenting on the
practical inconveniences of some of these arrangements. However proper
it may be, in a limited and republican government, to vest the power
of declaring war in the legislative department, the negotiation of
treaties by a numerous body had been found, in our own experience, and
in that of other republics, extremely embarrassing. However wise may
be a jealousy of the executive department, it is difficult to say that
the same authority that is intrusted with the appointment to all other
offices should not be permitted to make an ambassador or a judge.
However august may be a proceeding that is to determine a boundary
between sovereign States, it is nothing more and nothing less than a
strictly judicial controversy, capable of trial in the ordinary forms
and tribunals of judicature, besides being one that ought to be safely
removed from all political influences. However necessary it may be
that an impeachment should be conducted with the solemnities and
safeguards of allegation and proof, it is not always to be decided by
the rules with which judges are most familiar, or to be determined by
that body of law which it is their special duty to administer. However
desirable it may be, that an elective chief magistracy should be
filled with the highest capacity and fitness, and that popular tumults
should be avoided, no government has yet existed, in which the
election of such a magistrate by the legislative department has
afforded any decided advantage over an election directly or indirectly
by the people; and to give a body constituted as the American Senate
is a negative in the choice of the executive, would be certainly
inconvenient, probably dangerous.

But the position of the Senate as an assembly of the States, and
certain opinions of its superior fitness for the discharge of some of
these duties, had united to make it far too powerful for a safe and
satisfactory operation of the government. It was found to be
impossible to adjust the whole machine to the quantity of power that
had been given to one of its parts. It was eminently just and
necessary that the States should have an equal and direct
representation in some branch of the government; but that a majority
of the States, containing a minority of the people, should possess a
negative in the appointment of the executive, and in the question of
peace or war, and the sole voice in the appointment of judges and
ambassadors, was neither necessary nor proper. Theoretically, it might
seem appropriate that a question of boundary between any two of the
States represented in it should be committed to the Senate, as a court
of the peers of the sovereign parties to the dispute; but practically,
this would be a tribunal not well fitted to try a purely judicial
question. It became necessary, therefore, to discover the true limit
of that control which the nature of the representation in the Senate
was to be allowed to give to a majority of the States. There had been
some effort, in the progress of the controversy respecting the
representative system, to confine the equal power of the States, in
matters of legislation, to particular questions or occasions; but it
had turned out to be impracticable thus to divide or limit the
ordinary legislative authority of the same body. If the Senate, as an
equal assembly of the States, was to legislate at all, it must
legislate upon all subjects by the same rule and method of suffrage.
But when the question presented itself as to the separate action of
this assembly,--how far it should be invested with the appointment of
other functionaries, how far it should control the relations of the
country with foreign nations, how far it should partake both of
executive and judicial powers,--it was much less difficult to draw the
line, and to establish proper limits to the direct agency of the
States. Those limits could not indeed be ascertained by the mere
application of theoretical principles. They were to be found in the
primary necessity for reposing greater powers in other departments,
for adjusting the relations of the system by a wider distribution of
authority, and for confiding more and more in the intelligence and
virtue of the people; and therefore it is, that, in these as in other
details of the Constitution, we are to look for the clew that is to
give us the purpose and design, quite as much to the practical
compromises which constantly took place between opposite interests, as
to any triumph of any one of opposite theories.

The first experiment that was made towards a restriction of the power
of the Senate, and an adjustment of its relations to the other
departments, was the preparation of a plan, by which the President was
to have the making of treaties, and the appointment of ambassadors,
judges of the Supreme Court, and all other officers not otherwise
provided for, by and with, the advice and consent of the Senate. The
trial of impeachments, of the President included, was transferred to
the Senate, and the trial of questions of boundary was placed, like
other controversies between States, within the scope of the judicial
power. The choice of the President was to be made in the first
instance by electors appointed by each State, in such manner as its
legislature might direct, each State to have a number of electors
equal to the whole number of its senators and representatives in
Congress; but if no one of the persons voted for should have a
majority of all the electors, or if more than one person should have
both a majority and an equal number of votes, the Senate were to
choose the President from the five highest candidates voted for by the
electors. In this plan, there was certainly a considerable increase of
the power of the President; but there was not a sufficient diminution
of the power of the Senate. The President could nominate officers and
negotiate treaties; but he must obtain the consent of the body by whom
he might have been elected, and by whom his re-election might be
determined, if he were again to become a candidate. It appeared,
therefore, to be quite necessary, either to take away the revisionary
control of the Senate over treaties and appointments, or to devise
some mode by which the President could be made personally independent
of that assembly. He could be made independent only by taking away all
agency of the Senate in his election, or by making him ineligible to
the office a second time. There were two serious objections to the
last of these remedies,--the country might lose the services of a
faithful and experienced magistrate, whose continuance in office would
be highly important; and even in a case where no pre-eminent merit had
challenged a re-election, the effect of an election by the Senate
would always be pernicious, and must be visible throughout the whole
term of the incumbent who had been successful over four other
competitors.

And after all, what necessity was there for confiding this vast power
to the Senate, opening the door of a small body to the corruption and
intrigue for which the magnitude of the prize to be gained and to be
given, and the facility for their exercise, would furnish an enormous
temptation? Was it so necessary that the States should force their
equality of privilege and of power into every department of the
Constitution, making it felt not only in all acts of legislation, but
in the whole administration of the executive and judicial duties? Was
nothing due to the virtue and sense and patriotism of a majority of
the people of the United States? Might they not reasonably be expected
to constitute a body of electors, who, chosen for the express purpose,
and dissolved as soon as their function had been discharged, would be
able to make an upright and intelligent choice of a chief magistrate
from among the eminent citizens of the Union?

Questions like these, posterity would easily believe, without the
clear record that has descended to them, must have anxiously and
deeply employed the framers of the Constitution. They were to
consider, not only what was theoretically fit and what would
practically work with safety and success, but what would be accepted
by the people for whom they were forming these great institutions.
That people undoubtedly detested everything in the nature of a
monarchy. But there was another thing which they hated with equal
intensity, and that was an oligarchy. Their experience had given them
quite as much reason for abhorring the one as the other. Such, at
least, was their view of that experience. A king, it is true, was the
chief magistrate of the mother country against which they had
rebelled, against which they had fought successfully for their
independence. The measures that drove them into that resistance were
executed by the monarch; but those measures were planned, as they
believed, by a ministry determined to enslave them, and were
sanctioned by a Parliament in which even the so-called popular branch
was then but another phase of the aristocracy which ruled the empire.
The worst enemy our grandfathers supposed they had in England,
throughout their Revolution, was the ministerial majority of that
House of Commons, made up of placemen sitting for rotten boroughs, the
sons of peers, and the country gentlemen, who belonged to a caste as
much as their first-cousins who sat by titles in the House of Lords.
Our ancestors did not know--they went to their graves without
knowing--that in the hard, implacable temper of the king, made harder
and more implacable by a narrow and bigoted conscientiousness, was
the real cause for the persistency in that fatal policy which severed
these Colonies from his crown.

That long struggle had been over for several years, and its result was
certainly not to be regretted by the people of America. But it had
left them, as it naturally must have left them, with as strong
prejudices and jealousies against every aristocratic, as against every
monarchical institution. Public liberty in England they knew might
consist with an hereditary throne, and with a privileged and powerful
aristocracy. But public liberty in America could consist with neither.
The people of the United States could submit to restraints; they could
recognize the necessity for checks and balances in the distribution of
authority; and they understood as much of the science of government as
any people then alive. But an institution,--however originating and
however apparently necessary its peculiar construction might
be,--embracing but a small number of persons, with power to elect the
chief magistrate, with power to revise every appointment from a chief
justice down to a tidewaiter, with power to control the President
through his subordinate agents, with power to reject every treaty that
he might negotiate, and with power to sit in judgment on his
impeachment, they would not endure. "We have, in some revolutions of
this plan of government," said Randolph, "made a bold stroke for
monarchy. We are now doing the same for an aristocracy."

How to attain the true intermediate ground, to avoid the substance of
a monarchy and the substance of an aristocracy, and yet not to found
the system on a mere democracy, was a problem not easy of solution.
All could see, that a government extended over a country so large,
which was to have the regulation of its commerce, the collection of
great revenues, the care of a vast public domain, the superintendence
of intercourse with hordes of savage tribes, the control of relations
with all the nations of the world, the administration of a peculiar
jurisprudence, and the protection of the local constitutions from
violence, must have an army and a navy, and great fiscal,
administrative, and judicial establishments, embracing a very numerous
body of public officers. To give the appointment of such a multitude
of public servants, invested with such functions, to the unchecked
authority of the President, would be to create an executive with power
not less formidable and real than that of some monarchs, and far
greater than that of others. No one desired that a sole power of
appointment should be vested in the President alone; it was
universally conceded that there must be a revisionary control lodged
somewhere, and the only question was where it should be placed. That
it ought to be in a body independent of the executive, and not in any
council of ministers that might be assigned to him, was apparent; and
there was no such body, excepting the Senate, which united the
necessary independence with the other qualities needful for a right
exercise of this power.

The negotiation of treaties was obviously a function that should be
committed to the executive alone. But a treaty might undertake to
dismember a State of part of its territory, or might otherwise affect
its individual interests; and even where it concerned only the general
interests of all the States, there was a great unwillingness to
intrust the treaty-making power exclusively to the President. Here,
the States, as equal political sovereignties, were unwilling to relax
their hold upon the general government; and the result was that
provision of the Constitution which makes the consent of two thirds of
the Senators present necessary to the ratification of a treaty.

But if it was to have these great overruling powers, the Senate must
have no voice in the appointment of the executive. There were two
modes in which the election might be arranged, so as to prevent a
mutual connection and influence between the Senate and the President.
The one was, to allow the highest number of electoral votes to appoint
the President;[164] the other was, to place the eventual election--no
person having received a majority of all the electoral votes--in the
House of Representatives. The latter plan was finally adopted, and the
Senate was thus effectually severed from a dangerous connection with
the executive.

This separation having been effected, the objections which had been
urged against the length of the senatorial term became of little
consequence. In the preparation of the plan marked out in the
resolutions sent to the committee of detail, the Senate had been
considered chiefly with reference to its legislative function; and the
purpose of those who advocated a long term of office was to establish
a body in the government of sufficient wisdom and firmness to
interpose against the impetuous counsels and levelling tendencies of
the democratic branch.[165] Six years was adopted as an intermediate
period between the longest and the shortest of the terms proposed; and
in order that there might be an infusion of different views and
tendencies from time to time, it was provided that one third of the
members should go out of office biennially.[166] Still, in the case of
each individual senator, the period of six years was the longest of
the limited terms of office created by the Constitution. Under the
Confederation, the members of the Congress had been chosen annually,
and were always liable to recall. The people of the United States were
in general strongly disposed to a frequency of elections. A term of
office for six years would be that feature of the proposed Senate most
likely, in the popular mind, to be regarded as of an aristocratic
tendency. If united with the powers that have just passed under our
review, and if to those powers it could be said that an improper
influence over the executive had been added, the system would in all
probability be rejected by the people. But if the Senate were deprived
of all agency in the appointment of the President, it would be mere
declamation to complain of their term of office; for undoubtedly the
peculiar duties assigned to the Senate could be best discharged by
those who had had the longest experience in them. The solid objection
to such a term being removed, the complaint of aristocratic tendencies
would be confined to those who might wish to find plausible reasons
for opposition, and might not wish to be satisfied with the true
reasons for the provision.

Having now described the formation and the special powers of the two
branches of the legislature, I proceed to inquire into the origin and
history of the disqualifications to which the members were subjected.

The Constitution of the United States was framed and established by a
generation of men, who had observed the operation upon the English
legislature of that species of influence, by the crown or its
servants, which, from the mode of its exercise, not seldom amounting
to actual bribery, has received the appropriate name of parliamentary
corruption. That generation of the American people knew but
little--they cared less--about the origin of a method of governing the
legislative body, which implies an open or a secret venality on the
part of its members, and a willingness on the part of the
administration to purchase their consent to its measures. What they
did know and what they did regard was, that for a long succession of
years the votes of members of Parliament had been bought, with money
or office, by nearly every minister who had been at the head of
affairs; that, if this practice had not been introduced under the
prince who was placed upon the throne by the revolution of 1688, it
had certainly grown to a kind of system in the hands of the statesmen
by whom that revolution was effected, and had attained its greatest
height under the first two princes of the house of Hanover; that it
was freely and sometimes shamefully applied throughout the American
war; and that, down to that day, no British statesman had had the
sagacity to discover, and the virtue to adopt, a purer system of
administration.[167] Whether this was a necessary vice of the English
constitution; whether it was inherent or temporary; or whether it was
only a stage in the development of parliamentary government, destined
to pass away when the relations of the representative body to the
people had become better settled,--could not then be seen even in
England. But to our ancestors, when framing their Constitution, it
presented itself as a momentous fact; whose warning was not the less
powerful, because it came from the centre of institutions with which
they had been most familiar, and from the country to which they traced
their origin,--a country in which parliamentary government had had the
fairest chances for success that the world had witnessed.

Yet it would not have been easy at that time, as it is not at the
present, and as it may never be, to define with absolute precision the
true limits which executive influence with the legislative body should
not be suffered to pass. Still less is it easy to say that such
influence ought not to exist at all;[168] although it is not difficult
to say that there are methods in which it should not be suffered to be
exercised. The more elevated and more clear-sighted public morality of
the present age, in England and in America, condemns with equal
severity and equal justice both the giver and the receiver in every
transaction that can be regarded as a purchase of votes upon
particular measures or occasions, whatever may have been the
consideration or motive of the bargain. But whether that morality
goes, or ought to go, farther,--whether it includes, or ought to
include, in the same condemnation, every form of influence by which an
administration can add extrinsic weight to the merits of its
measures,--is a question that admits of discussion.

It may be said, assuming the good intentions of an administration, and
the correctness of its policy and measures, that its policy and its
measures should address themselves solely to the patriotism and sense
of right of the members of the legislative department. But an ever
active patriotism and a never failing sense of right are not always,
if often, to be found; the members of a legislative body are men, with
the imperfections, the failings, and the passions of men; and if pure
patriotism and right perceptions of duty are alone relied upon, they
may, and sometimes inevitably will be, found wanting. On the other
hand, it is just as true, that the persons composing every
administration are mere men, and that it will not do to assume their
wisdom and good intentions as the sole foundations on which to rest
the public security, leaving them at liberty to use all the appliances
that may be found effectual for gaining right ends, and overlooking
the character of the means. One of the principal reasons for the
establishment of different departments, in the class of governments to
which ours belongs, is, that perfect virtue and unerring wisdom are
not to be predicated of any man in any station. If they were, a simple
despotism would be the best and the only necessary form of
government.

All correct reasoning on this subject, and all true construction of
governments like ours, must commence with two propositions, one of
which embraces a truth of political science, and the other a truth of
general morals. The first is, that, while the different functions of
government are to be distributed among different persons, and to be
kept distinctly separated, in order that there may be both division of
labor and checks against the abuse of power, it is occasionally
necessary that some room should be allowed for supplying the want of
wisdom or virtue in one department by the wisdom or virtue of another.
In matters of government depending on mere discretion, unlimited
confidence cannot with safety be placed anywhere.[169] The other
proposition is the very plain axiom in morals, that, while in all
human transactions there may be bad means employed to effect a worthy
object, the character of those means can never be altered, nor their
use justified, by the character of the end. With these two
propositions admitted, what is to be done is to discover that
arrangement of the powers and relations of the different departments
whose acts involve, more or less, the exercise of pure discretion,
which will give the best effect to both of these truths; and as all
government and all details of government, to be useful, must be
practically adapted to the nature of man, it will be found that an
approximation in practice to a perfect theory is all that can be
attained.

Thus the general duties and powers of the legislative and the
executive departments are capable of distinct separation. The one is
to make, the other is to execute the laws. But execution of the laws
of necessity involves administration, and administration makes it
necessary that there should be an executive policy. To carry out that
policy requires new laws; authority must be obtained to do acts not
before authorized; and supplies must be perpetually renewed. The
executive stands therefore in a close relation to the legislative
department;--a relation which makes it necessary for the one to appeal
frequently, and indeed constantly, to the discretion of the other. If
the executive is left at liberty to purchase what it believes or
alleges to be the right exercise of that discretion, by the
inducements of money or office applied to a particular case, the rule
of common morals is violated; conscience becomes false to duty, and
corruption, having once entered the body politic, may be employed to
effect bad ends as well as good. Nay, as bad ends will stand most in
need of its influence, it will be applied the most grossly where the
object to be attained is the most culpable. On the other hand, if the
members of the legislative body, by being made incapable of accepting
the higher or more lucrative offices of state, are cut off from those
inducements to right conduct and a true ambition which the
imperfections of our nature have made not only powerful, but sometimes
necessary, aids to virtue, the public service may have no other
security than their uncertain impulses or imperfect judgments. In the
midst of such tendencies to opposite mischiefs, all that human wisdom
and foresight can do is, to anticipate and prevent the evils of both
extremes, by provisions which will guard both the interests of
morality and the interests of political expediency as completely as
circumstances will allow.

I am persuaded it was upon such principles as I have thus endeavored
to state, that the framers of our national Constitution intended to
regulate this very difficult part of the relations between the
executive and the legislature. During a considerable period, however,
of their deliberations on the disabilities to which it would be proper
to subject the members of the latter department, they had another
example before them besides that afforded by the history of
parliamentary corruption in England. The Congress of the Confederation
had of course the sole power of appointment to offices under the
authority of the United States; and although there is no reason to
suppose that body at any time to have been justly chargeable with
corrupt motives, there were complaints of the frequency with which it
had filled the offices which it had created with its own members. In
these complaints, the people overlooked the justification. They forgot
that the nature of the government, and the circumstances of the
country, rendered it difficult for an assembly which both made and
filled the offices, and which exercised its functions at a time when
the State governments absorbed by far the greater part of the
interests and attention of their citizens, to find suitable men out of
its own ranks. In that condition of things, it might have been
expected,--and it implies no improper purpose,--that offices would be
sometimes framed or regulated with a view to their being filled by
particular persons. But the complaints existed;[170] the evil was one
that tended constantly to become worse; and, in framing the new
government, this was the first aspect in which the influence of office
and its emoluments presented itself to the Convention.

For when the Virginia members, through Edmund Randolph, brought
forward their scheme of government, they not only gave the executive
no power of appointment to any office, but they proposed to vest the
appointment of both the executive and the judiciary in the
legislature. Hence they felt the necessity of guarding against the
abuse that might follow, if the members of the legislature were to be
left at liberty to appoint each other to office,--an abuse which they
knew had been imputed to the Congress, and which they declared had
been grossly practised by their own legislature.[171] They proposed,
therefore, to go beyond the Confederation, and to make the members of
both branches ineligible to any office established under the authority
of the United States, (excepting those peculiarly belonging to their
own functions,) during their term of service and for one year after
its expiration. This provision passed the committee of the whole; but
in the Convention, on a motion made by Mr. Gorham to strike it out,
the votes of the States were divided. An effort was then made by Mr.
Madison to find a middle ground, between an eligibility in all cases
and an absolute disqualification. If the unnecessary creation of
offices and the increase of salaries was the principal evil to be
anticipated, he believed that the door might be shut against that
abuse, and might properly be left open for the appointment of members
to places not affected by their own votes, as an encouragement to the
legislative service. But there were several of the stern patriots of
the Convention who insisted on a total exclusion, and who denied that
there was any such necessity for holding out inducements to enter the
legislature.[172] This was a question on which different minds, of
equal sagacity and equal purity, would naturally arrive at different
conclusions. Still, it is apparent that the mischiefs most apprehended
at the time of Mr. Madison's proposition would be in a great degree
prevented, by taking from the legislature the power of appointing to
office; and that this modification of the system was what was needed,
to make his plan a true remedy for the abuses that had been displayed
in our own experience. The stigma of venality cannot properly be
applied to the laudable ambition of rising into the honorable offices
of a free government; and if the opportunity to create places, or to
increase their emoluments, and then to secure those places, is taken
away, by vesting the appointment in the executive, the question turns
mainly on the relations that ought to exist between that department
and the legislature. But Mr. Madison's suggestion was made before it
was ascertained that the executive would have any power of
appointment, and it was accordingly rejected;--a majority of the
delegations considering it best to retain the ineligibility in all
cases, as proposed by the Virginia plan.[173] In this way, the
disqualification became incorporated into the first draft of the
Constitution, prepared by the committee of detail.[174]

But by this time it was known that a large part of the patronage of
the government must be placed in the hands of the President; for it
had been settled that he was to appoint to all offices not otherwise
provided for, and the cases thus excepted were those of judges and
ambassadors, which stood, in this draft of the Constitution, vested in
the Senate. A strong opposition to this arrangement, however, had
already manifested itself, and the result was very likely to be,--as
it in fact turned out,--that nearly the whole of the appointments
would be made on the nomination of the President, even if the Senate
were to be empowered to confirm or reject them. Accordingly, when this
clause came under consideration, the principle of an absolute
disqualification for office was vigorously attacked, and as vigorously
defended. The inconvenience and impolicy of excluding officers of the
army and navy from the legislature; of rendering it impossible for the
executive to select a commander-in-chief from among the members, in
cases of pre-eminent fitness; of refusing seats to the heads of
executive departments; and of closing the legislature as an avenue to
other branches of the public service,--were all strenuously urged and
denied.[175] At length, a middle course became necessary, to
reconcile all opinions. By a very close vote, the ineligibility was
restrained to cases in which the office had been created, or the
emolument of it increased, during the term of membership;[176] and a
seat in the legislature was made incompatible with any other office
under the United States.[177]

Some at least of the probable sources of corruption were cut off by
these provisions. The executive can make no bargain for a vote, by the
promise of an office which has been acted upon by the member whose
vote is sought for; and there can be no body of placemen, ready at all
times to sell their votes as the price for which they are permitted to
retain their places. At the same time, the executive is not deprived
of the influence which attends the power of appointing to offices not
created, or the emoluments of which have not been increased, by any
Congress of which the person appointed has been a member. This
influence is capable of abuse; it is also capable of being honorably
and beneficially exerted. Whether it shall be employed corruptly or
honestly, for good or for bad purposes, is left by the Constitution to
the restraints of personal virtue and the chastisements of public
opinion.

A serious question, however, has been made, whether the interests of
the public service, involved in the relations of the two departments,
would not have been placed upon a better footing, if some of the
higher officers of state had been admitted to hold seats in the
legislature. Under the English constitution, there is no practical
difficulty, at least in modern times, in determining the general
principle that is to distinguish between the class of officers who
can, and those who cannot, be usefully allowed to have seats in the
House of Commons. The principle which, after much inconsistent
legislation and many abortive attempts to legislate, has generally
been acted on since the reign of George II., is, that it is both
necessary and useful to have in that House some of the higher
functionaries of the administration; but that it is not at all
necessary, and not useful, to allow the privilege of sitting in
Parliament to subordinate officers.[178] The necessity of the case
arises altogether from the peculiar relations of the ministry to the
crown, and of the latter to the Commons. If the executive government
were not admitted, through any of its members, to explain and
vindicate its measures, to advocate new grants of authority, or to
defend the prerogatives of the crown, the popular branch of the
legislature would either become the predominant power in the state, or
sink into insignificance. This is conceded by the severest writers on
the English government.

But when we pass from a civil polity which it has taken centuries to
produce, and which has had its departments adjusted much less by
reference to exact principles than by the results of their successive
struggles for supremacy over each other, and when we come to an
original distribution of powers, in the arrangements of a constitution
made entire and at once by a single act of the national will, we must
not give too much effect to analogies which after all are far from
being complete. In preparing the Constitution of the United States,
its framers had no prerogative, in any way resembling that of the
crown of England, to consider and provide for. The separate powers to
be conferred on the chief magistracy--aside from its concurrence in
legislation--were simply executive and administrative; the office was
to be elective, and not hereditary; and its functions, like those of
the legislature, were to be prescribed with all the exactness of which
a written instrument is capable. There was, therefore, little of such
danger that the one department would silently or openly encroach on
the rights or usurp the powers of the other, as there is where there
exists hereditary right on the one side and customary right on the
other, and where the boundaries between the two departments are to be
traced by the aid of ancient traditions, or collected from numerous
and perhaps conflicting precedents. There was no such necessity,
therefore, as there is in England, for placing members of the
administration in the legislature, in order to preserve the balance of
the Constitution. The sole question with us was, whether the public
convenience required that the administration should be able to act
directly upon the course of legislation. The prevailing opinion was
that this was not required. This opinion was undoubtedly formed under
the fear of corruption and the jealousy of executive power, chiefly
produced--and justly produced--by the example of what had long existed
in England. That the error, if any was committed, lay on the safer
side, none can doubt. It is possible that the chances of a corrupt
influence would not have been increased, and that the opportunities
for a salutary influence might have been enlarged,--as it is highly
probable that the convenience of communication would have been
promoted,--if some of the higher officers of state could have been
allowed to hold seats in either house of Congress. But it is difficult
to see how this could have been successfully practised, under the
system of representation and election which the framers of the
Constitution were obliged to establish: and perhaps this is a decisive
answer to the objection.[179]

Among the powers conceded by the Constitution to the legislature of
each State is that of prescribing the time, place, and manner of
holding the elections of its senators and representatives in Congress.
This provision[180] originated with the committee of detail; but, as
it was reported by them, there was no other authority reserved to
Congress itself than that of altering the regulations of the States;
and this authority extended as well to the place of choosing the
senators, as to all the other circumstances of the election.[181] In
the Convention, however, the authority of Congress was extended beyond
the alteration of State regulations, so as to embrace a power to make
rules, as well as to alter those made by the States. But the place of
choosing the senators was excepted altogether from this restraining
authority, and left to the States.[182] Mr. Madison, in his minutes,
adds the explanation, that the power of Congress to _make_ regulations
was supplied, in order to enable them to regulate the elections, if
the States should fail or refuse to do so.[183] But the text of the
Constitution, as finally settled, gives authority to Congress at "any
time" to "make or alter such regulations"; and this would seem to
confer a power, which, when exercised, must be paramount, whether a
State regulation exists at the time or not.

There is one other peculiarity of the American legislature, of which
it is proper in this connection to give a brief account; namely, the
compensation of its members for their public services. In the plan
presented by the Virginia delegation, it was proposed that the members
of both branches should receive "liberal stipends"; but it was not
suggested whether they were to be paid by the States, or from the
national treasury. The committee of the whole determined to adopt the
latter mode of payment; and as the representation in both branches,
according to the first decision, was to be of the same character, no
reason was then suggested for making a difference in the source of
their compensation. But when the construction of the Senate was
considered in the Convention, the idea was suggested that this body
ought in some way to represent wealth; and it was apparently under the
influence of this suggestion, that, after a refusal to provide for a
payment of the senators by their States, payment out of the national
treasury was stricken from the resolution under debate.[184] There was
thus introduced into the resolutions sent to the committee of detail,
a discrepancy between the modes of compensating the members of the two
branches; for while the members of the House were to be paid "an
adequate compensation" out of "the public treasury," the Senate were
to receive "a compensation for the devotion of their time to the
public service," but the source of payment was not designated. But
when the whole body of those resolutions had been acted on, the
character of the representation in the Senate had been settled, and
the idea of its being made a representation of wealth, in any sense,
had been rejected. The committee of detail had, therefore, in giving
effect to the decisions of the Convention, to consider merely whether
the members of the two branches should be paid by their States, or
from the national treasury; and for the purpose of making the same
provision as to both, and in order to avoid the question whether the
Constitution should establish the amount, or should leave it to be
regulated by the Congress itself, they provided that the members of
each house should receive a compensation for their services, to be
ascertained and paid by the State in which they should be chosen.[185]

This, however, was to encounter far greater evils than it avoided. If
paid by their States, the members of the national legislature would
not only receive different compensations, but they would be directly
subjected to the prejudices, caprices, and political purposes of the
State legislatures. Whatever theory might be maintained with respect
to the relations between the representatives, in either branch, and
the State in which they were chosen, or the people of the States, to
subject one class of public servants to the power of another class
could not fail to produce the most mischievous consequences. A large
majority of the States, therefore, decided upon payment out of the
national treasury,[186] and it was finally determined that the rate
of compensation should not be fixed by the Constitution, but should be
left to be ascertained by law.[187]

Among the separate functions assigned by the Constitution to the
houses of Congress are those of presenting and trying impeachments. An
impeachment, in the report of the committee of detail, was treated as
an ordinary judicial proceeding, and was placed within the
jurisdiction of the Supreme Court. That this was not in all respects a
suitable provision, will appear from the following considerations.
Although an impeachment may involve an inquiry whether a crime against
any positive law has been committed, yet it is not necessarily a trial
for crime; nor is there any necessity, in the case of crimes committed
by public officers, for the institution of any special proceeding for
the infliction of the punishment prescribed by the laws, since they,
like all other persons, are amenable to the ordinary jurisdiction of
the courts of justice, in respect of offences against positive law.
The purposes of an impeachment lie wholly beyond the penalties of the
statute or the customary law. The object of the proceeding is to
ascertain whether cause exists for removing a public officer from
office. Such a cause may be found in the fact, that, either in the
discharge of his office, or aside from its functions, he has violated
a law, or committed what is technically denominated a crime. But a
cause for removal from office may exist, where no offence against
positive law has been committed, as where the individual has, from
immorality or imbecility or maleadministration, become unfit to
exercise the office. The rules by which an impeachment is to be
determined are therefore peculiar, and are not fully embraced by those
principles or provisions of law which courts of ordinary jurisdiction
are required to administer.

From considerations of this kind, especially when applied to the
impeachment of a President of the United States, the Convention found it
expedient to place the trial in the Senate. In fact, the whole subject
of impeachments, as finally settled in the Constitution, received its
impress in a great degree from the attention that was paid to the
bearing of this power upon the executive. Few members of the Convention
were willing to constitute a single executive, with such powers as were
proposed to be given to the President, without subjecting him to removal
from office on impeachment; and when it was perceived to be necessary to
confer upon him the appointment of the judges, it became equally
necessary to provide some other tribunal than the Supreme Court for the
trial of his impeachment. There was no other body already provided for
in the government, with whom this jurisdiction could be lodged,
excepting the Senate; and the only alternative to this plan was to
create a special tribunal for the sole purpose of trying impeachments of
the President and other officers. This was justly deemed a manifest
inconvenience; and although there were various theoretical objections
suggested against placing the trial in the Senate, on the question being
stated there were found to be but two dissentient States.[188] This
point having been settled, in relation to impeachments of the President,
the trial of impeachments of all other civil officers of the United
States was, for the sake of uniformity, also confided to the
Senate.[189] The power of impeachment was confined, as originally
proposed, to the House of Representatives.[190]

The number of members of each house that should be made a _quorum_ for
the transaction of business gave rise to a good deal of difference of
opinion. The controlling reason why a smaller number than a majority
of the members of each house should not be permitted to make laws, was
to be found in the extent of the country and the diversity of its
interests. The central States, it was said, could always have their
members present with more convenience than the distant States; and
after some discussion, it was determined to establish a majority of
each house as its quorum for the transaction of business, giving to a
smaller number power to adjourn from day to day, and to compel the
attendance of absent members.[191]

Provisions making each house the judge of the elections, returns, and
qualifications of its own members; that for any speech, or debate in
either house no member shall be questioned in any other place; and
that in all cases, except treason, felony, or breach of the peace, the
members shall be privileged from arrest during their attendance at,
and in going to and returning from, the sessions of their respective
houses,--were agreed to without any dissent.[192]

The power of each house to determine the rules of its proceedings, to
punish its members for disorderly behavior, and to expel with the
concurrence of two thirds, was agreed to with general assent.[193]
Each house was also directed to keep a journal of its proceedings, and
from time to time to publish the same, excepting such parts as may in
their judgment require secrecy; and one fifth of the members present
in either house were empowered to require the yeas and nays to be
entered on its journal.[194]

The report of the committee of detail had made no provision for such
an officer as the Vice-President of the United States, and had
therefore declared that the Senate, as well as the House, should
choose its own presiding officer. This feature of their report
received the sanction of the Convention; but subsequently, when it
became necessary to create an officer to succeed the President of the
United States, in case of death, resignation, or removal from office,
the plan was adopted of making the former _ex officio_ the presiding
officer of the Senate, giving him a vote only in cases where the votes
of the members are equally divided.[195] To this was added the further
provision, that the Senate shall choose, besides all its other
officers, a President _pro tempore_, in the absence of the
Vice-President, or when he shall exercise the office of President of
the United States.[196] The House of Representatives were empowered to
choose their own Speaker, and other officers, as originally
proposed.[197]

The mode in which laws were to be enacted was the last topic
concerning the action of the legislature which required to be dealt
with in the Constitution. The principle had been already settled, that
the negative of the President should arrest the passage of a law,
unless, after he had refused his concurrence, it should be passed by
two thirds of the members of each house. In order to give effect to
this principle, the committee of detail made the following
regulations, which were adopted into the Constitution;--that every
bill, which shall have passed the two houses, shall, before it become
a law, be presented to the President of the United States; that, if he
approve, he shall sign it, but if not, he shall return it, with his
objections, to the house in which it originated, who shall enter the
objections at large on their journal, and proceed to reconsider it;
that if, after such reconsideration, two thirds of that house agree to
pass the bill, it is to be sent with the objections to the other
house, by which it is likewise to be reconsidered, and, if approved by
two thirds of that house, it is to become a law; but in all such
cases, the votes of both houses are to be determined by yeas and nays
entered upon the journal. If any bill be not returned by the President
within ten days (Sundays excepted) after it has been presented to him,
it is to become a law, in like manner as if he had signed it, unless
the Congress by adjourning prevent its return, in which case it is not
to become a law. All orders, resolutions, and votes to which the
concurrence of both houses is necessary, (except on a question of
adjournment,) are subject to these provisions.[198]

The two important differences between the negative thus vested in the
President of the United States and that which belongs to the King of
England are, that the former is a qualified, while the latter is an
absolute, power to arrest the passage of a law; and that the one is
required to render to the legislature the reasons for his refusal to
approve a bill, while the latter renders no reasons, but simply
answers that he will advise of the matter, which is the parliamentary
form of signifying a refusal to approve. The provision in our
Constitution which requires the President to communicate to the
legislature his objections to a bill, was rendered necessary by the
power conferred upon two thirds of both houses to make it a law,
notwithstanding his refusal to sign it. By this power, which makes the
negative of the President a qualified one only, the framers of the
Constitution intended that the two houses should take into
consideration the objections which may have led the President to
withhold his assent, and that his assent should be dispensed with, if,
notwithstanding those objections, two thirds of both houses should
still approve of the measure. These provisions, therefore, on the one
hand, give to the President a real participation in acts of
legislation, and impose upon him a real responsibility for the
measures to which he gives his official approval, while they give him
an important influence over the final action of the legislature upon
those which he refuses to sanction; and, on the other hand, they
establish a wide distinction between his negative and that of the King
in England. The latter has none but an absolute "veto"; if he refuse
to sign a bill, it cannot become a law; and it is well understood,
that it is on account of this absolute effect of the refusal, that
this prerogative has been wholly disused since the reign of William
III., and that the practice has grown up of signifying, through the
ministry, the previous opposition of the executive, if any exists,
while the measure is under discussion in Parliament. It is not needful
to consider here which mode of legislation is theoretically or
practically the best. It is sufficient to notice the fact, that the
absence from our system of official and responsible advisers of the
President, having seats in the legislature, renders it impracticable
to signify his views of a measure, while it is under the
consideration of either house. For this reason, and because the
President himself is responsible to the people for his official acts,
and in order to accompany that responsibility with the requisite power
both to act upon reasons and to render them, our Constitution has
vested in him this peculiar and qualified negative.[199]

The remaining topic that demands our inquiries, respecting the
legislature, relates to the place of its meeting. The Confederation
was a government without a capitol, or a seat; a want which seriously
impaired its dignity and its efficiency, and subjected it to great
inconveniences; at the same time, it was unable to supply the defect.
Its Congress, following the example of their predecessors, had
continued to assemble at Philadelphia, until June, 1783; when, as we
have already seen, in consequence of a mutiny by some of the federal
troops stationed in that neighborhood, against which the local
authorities failed to protect them, they left that city, and
reassembled at Princeton, in the State of New Jersey, in the halls of
a college.[200] There, in the following October, a resolution was
passed, directing that buildings for the use of Congress should be
erected at some suitable place near the falls of the Delaware; for
which the right of soil and an exclusive jurisdiction should be
obtained.[201] But this was entirely unsatisfactory to the Southern
States. They complained that the place selected was not central, was
unfavorable to the Union, and unjust to them. They endeavored to
procure a reconsideration of the vote, but without success.[202]
Several days were then consumed in fruitless efforts to agree on a
temporary residence; and at length it became apparent that there was
no prospect of a general assent to any one place, either for a
temporary or for a permanent seat. The plan of a single residence was
then changed, and a resolution was passed, providing for an alternate
residence at two places, by directing that buildings for the use of
Congress, and a federal town, should also be erected at or near the
lower falls of the Potomac, or Georgetown; and that until both places,
that on the Delaware and that on the Potomac, were ready for their
reception, Congress should sit alternately, for equal periods of not
more than one year and not less than six months, at Trenton, the
capital of the State of New Jersey, and at Annapolis, the capital of
the State of Maryland. The President was thereupon directed to adjourn
the Congress, on the 12th of the following November, to meet at
Annapolis on the 26th, for the despatch of business. Thither they
accordingly repaired, and there they continued to sit until June 3,
1784. A recess followed, during which a committee of the States sat,
until Congress reassembled at Trenton, on the 30th of the following
October.

At Trenton, the accommodations appear to have been altogether
insufficient, and the States of South Carolina and Pennsylvania proposed
to adjourn from that place.[203] The plan of two capitols in different
places was then rescinded,[204] and an ordinance was passed, for the
appointment of commissioners to establish a seat of government on the
banks of the Delaware, at some point within eight miles above or below
the lower falls of that river. Until the necessary buildings should be
ready for their reception, the ordinance provided that Congress should
sit at the city of New York.[205] When assembled there in January, 1785,
they received and accepted from the corporation an offer of the use of
the City Hall; and in that building they continued to hold their
sessions until after the adoption of the Constitution.[206]

It does not appear that any steps were taken under the ordinance of
1784, or under any of the previous resolutions, for the establishment
of a federal town and a seat of government at any of the places
designated. Whether the Congress felt the want of constitutional power
to carry out their project, or whether the want of means, or a
difficulty in obtaining a suitable grant of the soil and jurisdiction,
was the real impediment, there are now no means of determining. It
seems quite probable, however, that, after their removal to the city
of New York, they found themselves much better placed than they or
their predecessors had ever been elsewhere; and as the discussions
respecting a total revision of the federal system soon afterwards
began to agitate the public mind, the plan of establishing a seat for
the accommodation of the old government was naturally postponed.

The plan itself, on paper, was a bold and magnificent one. It
contemplated a district not less than two and not more than three
miles square, with a "federal house" for the use of Congress; suitable
buildings for the executive departments; official residences for the
president and secretary of Congress, and the secretaries of foreign
affairs, of war, of the marine, and the officers of the treasury;
besides hotels to be erected and owned by the States as residences for
their delegates. But, for this fine scheme of a federal metropolis, an
appropriation was made, which, even in those days, one might suppose,
would scarcely have paid for the land required. The commissioners who
were to purchase the site, lay out the town, and contract for the
erection and completion of all the public edifices,--excepting those
which were to belong to the States,--"in an elegant manner," were
authorized to draw on the federal treasury for a sum not exceeding one
hundred thousand dollars, for the whole of these purposes. If we are
to understand it to have been really expected and intended that this
sum should defray the cost of this undertaking, we must either be
amused by the modest requirements of the Union at that day, or stand
amazed at the strides it has since taken in its onward career of
prosperity and power. From the porticos of that magnificent Capitol
whose domes overhang the Potomac, the eye now looks down upon a city,
in which, at a cost of many millions, provision has been made for the
central functions of a government, whose daily expenditure exceeds the
entire sum appropriated for the establishment of the necessary public
buildings and official residences seventy years ago.

In truth, however, there is not much reason to suppose that the
Congress of the Confederation seriously contemplated the establishment
of a federal city. They were too feeble for such an undertaking. They
could pass resolutions and ordinances for the purpose, and send them
to the authorities of the States;--and if a more decent attention to
the wants and dignity of the federal body was excited, it was well,
and was probably the effect principally intended. If they had actually
proceeded to do what their resolution of 1783 proposed,--to acquire
the jurisdiction, as well as the right of soil, over a tract of
land,--they must have encountered a serious obstacle in the want of
constitutional power. This difficulty seems to have been felt at a
later period; for the ordinance of 1784 only directs a purchase of the
land, and is silent upon the subject of municipal jurisdiction. It is
fortunate, too, on all accounts, that the design was never executed,
if it was seriously entertained. The presence of Congress in the city
of New York, where the legislature of the State was also sitting, in
the winter of 1787, enabled Hamilton to carry those measures in both
bodies, which led immediately to the summoning of the national
Convention.[207] And it was especially fortunate that this whole
subject came before the Convention unembarrassed with a previous
choice of place by the old Congress, or with any steps concerning
municipal jurisdiction which they might have taken, or omitted.

For it was no easy matter, in the temper of the public mind existing
from 1783 to 1788, to determine where the seat of the federal, or that
of the national government, ought to be placed. The Convention found
this an unsettled question, and they wisely determined to leave it so.
The cities of New York and Philadelphia had wishes and expectations,
and it was quite expedient that the Constitution should neither decide
between them, nor decide against both of them. It was equally
important that it should not direct whether the seat of the national
government should be placed at any of the other commercial cities, or
at the capital or within the jurisdiction of any State, or in a
district to be exclusively under the jurisdiction of the United
States. These were grave questions, which involved the general
interests of the Union; but however settled, they would cost the
Constitution, in some quarter or other, a great deal of the support
that it required, if determined before it went into operation.[208]
Temporarily, however, the new government must be placed somewhere
within the limits of a State, and at one of the principal cities; and
as the Congress then sitting at New York would probably invite their
successors to assemble there, it became necessary to provide for a
future removal, when the time should arrive for a general agreement on
the various and delicate questions involved. The difference of
structure, however, between the two branches of the proposed Congress,
and the difference of interests that might predominate in each, made a
disagreement on these questions probable, if not inevitable; and a
disagreement on the place of their future sessions, if accompanied by
power to sit in separate places, would be fatal to the peace of the
Union and the operation of the government.

The committee of detail, therefore, inserted in their draft a clause
prohibiting either house, without the consent of the other, from
adjourning for more than three days, or to any other place than that
at which the Congress might be sitting. Mr. King expressed an
apprehension that this implied an authority in both houses to adjourn
to any place; and as a frequent change of place had dishonored the
federal government, he thought that a law, at least, should be made
necessary for a removal. Mr. Madison considered a central position
would be so necessary, and that it would be so strongly demanded by
the House of Representatives, that a removal from the place of their
first session would be extorted, even if a law were required for it.
But there was a fear that, if the government were once established at
the city of New York, it would never be removed if a law were made
necessary. The provision reported by the committee was therefore
retained, and it was left in the power of the two houses alone, during
a session of Congress, to adjourn to any place, or to any time, on
which they might agree.[209]

Still it was needful that the Constitution should empower the
legislature to establish a seat of government out of the jurisdiction
of any of the States, and away from any of their cities. The time
might come when this question could be satisfactorily met. The time
would certainly come, when the people of the whole Union could see
that the dignity, the independence, and the purity of the government
would require that it should be under no local influences; when every
citizen of the United States, called to take part in the functions of
that government, ought to be able to feel that he and his would owe
their protection to no power, save that of the Union itself. Some
disadvantage, doubtless, might be experienced, in placing the
government away from the great centres of commerce. But neither of the
principal seats of wealth and refinement was very near to the centre
of the Union; and if either of them had been, the necessity for an
exclusive local jurisdiction would probably be found, after the
adoption of the Constitution, to outweigh all other considerations.
Accordingly, when the Constitution was revised for the purpose of
supplying the needful provisions omitted in its preparation, it was
determined that no peremptory direction on the subject of a seat of
government should be given to the legislature; but that power should
be conferred on Congress to exercise an exclusive legislation, in all
cases, over such district, not exceeding ten miles square, as might,
by cession of particular States and the acceptance of Congress, become
the seat of government of the United States. This provision has made
the Congress of the United States the exclusive sovereign of the
District of Columbia, which it governs in its capacity of the
legislature of the Union. It enabled Washington to found the city
which bears his name; towards which, whatever may be the claims of
local attachment, every American who can discern the connection
between the honor, the renown, and the welfare of his country, and the
dignity, convenience, and safety of its government, must turn with
affection and pride.

With respect to a regular time of meeting, no instructions had been
given to the committee of detail; but they inserted in their draft of
the Constitution a clause which required the legislature to assemble
on the first Monday of December in every year. There was, however, a
great difference of opinion as to the expediency of designating any
time in the Constitution, and as to the particular period adopted in
the report. But as it was generally agreed that Congress ought to
assemble annually, the provision which now stands in the Constitution,
which requires annual sessions, and establishes the first Monday in
December as the time of their commencement, unless a different day
shall be appointed by law, was adopted as a compromise of different
views.[210]

FOOTNOTES:

[130] The first draft of the Constitution, reported by the committee
of detail, will be found in the Appendix.

[131] A general instruction had been given to report "certain
qualifications of property and citizenship," for the executive, the
judiciary, and the members of both houses of Congress.

[132] It is only necessary to mention the names of Hamilton, Wilson,
Robert Morris, and Fitzsimmons, to show the entire impracticability of
a rule that would have excluded all persons of _foreign birth_ from
being electors, or from being elected to office.

[133] I have called the naturalization power a _practical_ control
upon the States in the matter of suffrage. It is indirect, but it is
effectual; for I believe that no State has ever gone so far as, by
express statutory or constitutional provision, to admit to the right
of voting persons of foreign birth who are not naturalized citizens of
the United States.

[134] Art. VI. Sect. 2 of the reported draft.

[135] Art. IV. Sect. 2 of the reported draft.

[136] New Hampshire, Massachusetts, and Georgia alone voted to retain
it. Elliot, V. 404.

[137] The Constitution of Pennsylvania had given to foreigners, after
two years' residence, all the rights of citizens. There were similar
provisions in nearly all of the States.

[138] The members who advocated the exemption were G. Morris, Mercer,
Gorham, Madison, and Wilson; those who opposed it were Rutledge,
Sherman, General Pinckney, Mason, and Baldwin. The States voting for
it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5;
the States voting against it were New Hampshire, Massachusetts,
Delaware, North Carolina, South Carolina, Georgia, 6. The question
elicited a good deal of feeling, and was debated with some warmth.

[139] _Ante_, Chap. VII.

[140] See _ante_, Chap. VIII.

[141] See _post_, as to the compromise on this subject.

[142] September 8.

[143] Elliot, V. 530.

[144] By a majority of one State. Ibid.

[145] That is to say, Congress were authorized to apportion one
representative to thirty thousand inhabitants, but not to exceed that
number. Constitution, Art. I. § 2.

[146] Let the reader consult Mr. Hallam's acute and learned discussion
of this exclusive privilege of the House of Commons, (Const. Hist.,
III. 37-46,) and he will probably be satisfied, that, whatever
theoretical reasons different writers may have assigned for it, its
origin is so obscure, and its precise limits and purposes, deduced
from the precedents, are so uncertain, that it can now be said to rest
on no positive principles. Its basis is custom; which, having no
definite beginning, is now necessarily immemorial. It would not be
quite safe, therefore, to reason upon the well-defined provision of
our Constitution, as if there were a close analogy between the
situation of the two houses of Congress and the two branches of the
British legislature. The English example certainly had an influence,
in suggesting the plan of such a restriction; but care must be taken
not to overlook the peculiar arrangements which made it so highly
expedient, that it may be said to have been a necessity, even if there
had been no British example.

[147] C. Pinckney. Elliot, V. 189. June 13.

[148] On the question for restraining the Senate from originating
money bills, New York, Delaware, Virginia, _ay_, 3; Massachusetts,
Connecticut, New Jersey, Maryland, North Carolina, South Carolina,
Georgia, _no_, 7. Ibid.

[149] Elliot, V. 285. _Ante_, Chap. VIII.

[150] August 8. For striking out, New Jersey, Pennsylvania, Delaware,
Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hampshire,
Massachusetts, Connecticut, North Carolina, _no_, 4.

[151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V.
395-397.) It would be endless to cite the observations of different
members, to show the purposes which they entertained. The reader, who
desires to test the accuracy of my inferences in any of these
descriptions, must study the debates, and compare, as I have done, the
different _phases_ which the subject assumed from time to time.

[152] Moved by Randolph, August 13. Elliot, V. 414.

[153] Ibid. 420.

[154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought
forward as an amendment to the article (Art. VI. § 12) which was to
define the powers of the two houses.

[155] August 31. Elliot, V. 503.

[156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from
this committee, was confined to "bills for raising revenue"; and these
were made subject to "alterations and amendments by the Senate."

[157] Ibid. 519.

[158] The history of this provision shows clearly that a bill for
appropriating money may originate in the Senate.

[159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut,
Pennsylvania, and Maryland voted in the negative, and the vote of
North Carolina was divided.

[160] May 31. Elliot, V. 133.

[161] Dickinson, Gerry, Mason.

[162] Sherman, Luther Martin, Ellsworth. On the naked proposition,
moved by Ellsworth, July 2, to allow each State one vote in the
Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_,
5; Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, _no_, 5; Georgia divided.

[163] Maryland alone voted against it.

[164] This suggestion was made by Hamilton. Elliot, V. 517.

[165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June
26.

[166] Ibid.

[167] In Horace Walpole's Memoirs of the Reign of George II., there is
an amusing parallel--gravely drawn, however--between the mode in which
his father, Sir Robert, "traded for members," and the manner in which
Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir
Robert Walpole "the patron and parent of parliamentary corruption."
(Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say
that it originated under Charles II., and both admit that it was
practised down to the close of the American war. (Hallam's Const.
Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III.
541-549.) The latter, in a very masterly analysis of its origin and
history, treats it as a local disease, incident to the growth of the
English constitution. It must be confessed, that it had become
_chronic_.

[168] I am quite aware of the danger of reasoning from the
circumstances of one country to those of another, even in the case of
England and the United States. But I avail myself, in support of the
text, of the authority of a writer, whose high moral tone, and whose
profound knowledge of the constitution on which he has written, unite
to make it unnecessary that its history should be written again;--I
mean, of course, Mr. Hallam. He pronounces it an extreme supposition,
and not to be pretended, that Parliament was ever "absolutely, and in
all conceivable circumstances, under the control of the sovereign,
whether through intimidation or corrupt subservience." "But," he adds,
"as it would equally contradict notorious truth to assert that every
vote has been disinterested and independent, _the degree of influence
which ought to be permitted_, or which has at any time existed,
_becomes one of the most important subjects in our constitutional
policy_." (Const. Hist., III. 351.)

[169] The position and functions of the judiciary, after proper
measures have been taken to secure individual capacity and integrity,
do admit and require what may be called absolute confidence. That is
to say, their action is not only final and conclusive, but it is never
legitimately open to the influence of any other department. The reason
is, that their action does not proceed from individual discretion, but
is regulated by the principles of a moral science, whose existence is
wholly independent of the will of the particular judge. Whereas the
action of both the executive and the legislative departments, within
the limits prescribed to it by the fundamental law, involves the
exercise, to a wide extent, of mere individual discretion. The remedy
for a failure in the judge to justify the confidence reposed in him
is, therefore, only by impeachment.

[170] The legislature of Massachusetts had, before Congress
recommended the national Convention, instructed its delegates in
Congress not to agree to any modification of the fifth Article of the
Confederation, which prohibited the members of Congress from _holding_
any office under the United States, for which they or any other person
for their benefit could receive any salary, fee, or emolument. This
instruction was repealed, by the unqualified manner in which the State
accepted the recommendation for a national Convention. But it shows
the sentiment of the State on this point, and it also shows the
jealousy that was felt.

[171] See the assertion by Mr. Mason, and the admission by Mr.
Madison, Elliot, V. 230, 232.

[172] Butler, Mason, and Rutledge.

[173] Two States only, Connecticut and New Jersey, voted for Madison's
amendment. June 23. Elliot, V. 230-233.

[174] The disqualification, as applied to members of both houses, was
incorporated into one clause. Art. VI. § 9 of the draft of the
committee of detail. Elliot, V. 377.

[175] See the debate, August 14. Elliot, V. 420-425.

[176] There was a majority of only one State in favor of this
principle. Elliot, V. 506.

[177] This provision received a unanimous vote. Ibid.

[178] For the history of what have been called place-bills, see
Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339,
341, 342, 479, 480, 528.

[179] Mr. Justice Story has suggested, that, "if it would not have
been safe to trust the heads of departments, as representatives, to
the choice of the people, as their constituents, it would have been at
least some gain to have allowed them a seat, like territorial
delegates, in the House of Representatives, where they might freely
debate without a title to vote." (Commentaries on the Constitution, I.
§ 869.) An officer of an executive department, thus admitted to a seat
in Congress, must have been placed there merely in virtue of his
office, by a special provision. He could have represented no real
constituency, and must therefore have had an anomalous position. A
territorial delegate is admitted as the representative of a
dependency, somewhat colonial in its nature, whose inhabitants are not
on an equal footing with the constituencies of the States. He has
therefore no vote. When speaking for the interests of those whom he
represents, he is in somewhat the same attitude as counsel admitted to
be heard at the bar of the House. Whether the head of an executive
department could with dignity and convenience be placed in a similar
position, admits at least of grave doubt.

[180] Art. I. § 4 of the Constitution.

[181] Art. VI. § 1 of the first draft.

[182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309.

[183] Elliot, V. 402.

[184] Elliot, V. 247.

[185] Art. VI. § 10 of the first draft. Elliot, V. 378.

[186] Massachusetts and South Carolina in the negative.

[187] See the discussion on Art. VI. § 10 of the first draft. Elliot,
V. 425-427.

[188] Pennsylvania and Virginia.

[189] See Elliot, V. 507, 528, 529.

[190] As to the other provisions of the Constitution on this subject,
see the Index, _verb._ Impeachment.

[191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution.

[192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6.

[193] Elliot, V. 407. Constitution, Art. I. § 5.

[194] Elliot, V. 407. Constitution, Art. I. § 5.

[195] Elliot, V. 507, 520. Constitution, Art. I. § 3.

[196] Ibid.

[197] Art. I. § 2.

[198] Constitution, Art. I. § 7.

[199] A question has been made, whether it is competent to two thirds
of the members _present_ in each house to pass a bill notwithstanding
the President's objections, or whether the Constitution means that it
shall be passed by two thirds of all the members of each branch of the
legislature. The history of the "veto" in the Convention seems to me
to settle this question. There was a change of phraseology, in the
course of the proceedings on this subject, which indicates very
clearly a change of intention. The language employed in the
resolutions, in all the stages through which they passed, was, that
"The national executive shall have a right to negative any legislative
act, which shall not be afterwards passed by _two third parts of each
branch of the national legislature_." This was the form of expression
contained in the resolutions sent to the committee of detail; and if
it had been incorporated into the Constitution, there could have been
no question but that its meaning would have been, that the bill must
be afterwards passed by two thirds of all the members to which each
branch is constitutionally entitled. But the committee of detail
changed this expression, and employed one which has a technical
meaning, that meaning being made technical by the Constitution itself.
Before the committee came to carry out the resolution relating to the
President's negative, they had occasion to define what should
constitute a "_house_" in each branch of the legislature; and they did
so by the provision that a majority of each _house_ shall constitute a
quorum to do business. This expression, a "house," or "each house," is
several times employed in the Constitution, with reference to the
faculties and powers of the two chambers respectively, and it always
means, when so used, the constitutional quorum, assembled for the
transaction of business, and capable of transacting business. This
same expression was employed by the committee when they provided for
the mode in which a bill, once rejected by the President, should be
again brought before the legislative bodies. They directed it to be
returned "_to that_ HOUSE _in which it shall have originated_,"--that
is to say, to a constitutional quorum, a majority of which passed it
in the first instance; and they then provided, that, if "_two thirds_
of that HOUSE shall agree to pass the bill, it shall be sent, together
with the objections, to the other HOUSE,... and if approved by _two
thirds_ of that HOUSE, it shall become a law." This change of
phraseology, taken in connection with the obvious meaning of the term
"house," as used in the Constitution when it speaks of a chamber
competent to do business, shows the intention very clearly. It is a
very different provision from what would have existed, if the phrase
"two third parts of each branch of the national legislature" had been
retained. (See Elliot, V. 349, 376, 378, 431 536.)

This view will be sustained by an examination of all the instances in
which the votes of "two thirds" in either body are required. Thus,
"each house may determine the rules of its proceedings, punish its
members for disorderly behavior, and, _with the concurrence of two
thirds_, expel a member." (Art. I. § 5.) The context of the same
article defines what is to constitute a "house," and makes it clear
that two thirds of a "house" may expel. That this was the intention is
also clear from what took place in the Convention. Mr. Madison
objected to the provision as it stood on the report of the committee,
by which a mere _majority_ of a quorum was empowered to expel, and, on
his motion, the words "with the concurrence of two thirds" were
inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of
the Constitution empowers Congress, "_whenever two thirds of both_
HOUSES _shall deem it necessary_," to propose amendments to the
Constitution. The term "house" is here used as synonymous with a
quorum.

It has been suggested, however, that the use of a positive expression,
in relation to the action of the Senate upon treaties, throws some
doubt upon the meaning of the term "two thirds," as used in other
parts of the Constitution. A treaty requires the concurrence of "two
thirds of the senators _present_"; and it has been argued that the
omission of this term in the other cases shows that two thirds of all
the members are required in those cases. But it is to be remembered,
that the Constitution makes a general provision as to what shall
constitute a house for the transaction of business; that when it means
that a particular function shall not be performed by such a house, or
quorum, it establishes the exception by a particular provision, as
when it requires two thirds of all the States to be present in the
House of Representatives on the choice of a President, and makes a
majority of all the States necessary to a choice; and that whether the
function of the Senate in approving treaties is or is not a part of
the business which under the general provision is required to be done
in a "house" or quorum consisting of a majority of all the members,
the Constitution does not speak of this function as being done by a
"house," but it speaks of the "advice and consent of the _Senate_," to
be given "by two thirds of the senators _present_." The use of the
term "present" was necessary, therefore, in this connection, because
no term had preceded it which would guide the construction to the
conclusion intended; but in the other cases, the previous use of the
term "house," defined to be a majority of all the members, determines
the sense in which the term "two thirds" is to be understood, and
makes it, as I humbly conceive, two thirds of a constitutional quorum.

[200] _Ante_, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Passed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor
of the city that repairs were to be made.

[207] See _ante_, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See _post_, as to the power of the
President to assemble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (§ 829), that
this clause came into the Constitution in the _revised_ draft, near
the close of the Convention, and was silently adopted, without
opposition. This is a mistake. The clause was contained in the draft
of the committee of detail, and was modified as stated in the text, on
the 7th of August, after a full debate. Elliot, V. 377, 383-385.



CHAPTER X

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF
CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING
COMMERCE, EXPORTS, AND THE SLAVE-TRADE.


In the examination which has thus far been made of the process of
forming the Constitution, the reader will have noticed the absence of
any express provisions concerning the regulation of commerce, and the
obtaining of revenues. A system of government had been framed,
embracing a national legislature, in which the mode of representation
alone had been determined with precision. The powers of this
legislature had been described only in very general terms. It was to
have "the legislative rights vested in Congress by the Confederation,"
and the power "to legislate in all cases for the general interests of
the Union, and also in those to which the States were separately
incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation."

It might undoubtedly have been considered that, as the want of a power
in the Confederation to make uniform commercial regulations affecting
the foreign and domestic relations of the States was one of the
principal causes of the assembling of this Convention, such a power
was implied in the terms of the resolution, which had declared the
general principles on which the authority of the national legislature
ought to be regulated. Still, it remained to be determined what kind
of regulation of commerce was required by "the general interests of
the Union," or how far the States were incompetent, by their separate
legislation, to deal with the interests of commerce so as to promote
"the harmony of the United States." In the same way, a power to obtain
revenues might be implied on the same general principles. But whether
the commercial power foreshadowed in these broad declarations was to
be limited or unlimited; whether there were any special objects or
interests to which it was not to extend; and whether the revenues of
the government were to be derived from imposts laid at pleasure upon
imports or exports, or both; whether they might be derived from
excises on the manufactures or produce of the country; whether its
power of direct taxation was to be exercised under further limitations
than those already agreed upon for the apportionment of direct taxes
among the States;--all these details were as yet entirely unsettled.

Two subjects, one of which might fall within a general commercial
power, and the other within a general power to raise revenues, had
already been incidentally alluded to, and both were likely to create
great embarrassment. General Pinckney had twice given notice that
South Carolina could not accede to the new Union proposed, if it
possessed a power to tax exports.[211] It had also become apparent, in
the discussions and arrangements respecting the apportionment of
representatives, that the possible encouragement of the slave-trade,
which might follow an admission of the blacks into the rule of
representation, was one great obstacle, in the view of the Northern
States, to such an admission; and at the same time, that it was very
doubtful whether all the Southern States would surrender to the
general government the power to prohibit that trade.[212] The
compromise which had already taken place on the subject of
representation had settled the principles on which that difficult
matter was to be arranged. But the power to increase the slave
populations by continued importation had not been agreed to be
surrendered; and unless some satisfactory and reasonable adjustment
could be made on this subject, there could be no probability that the
Constitution would be finally ratified by the people of the Northern
States.[213] It is necessary, therefore, to look carefully at these
two subjects, namely, the taxation of exports and the prohibition of
the slave-trade.

That a power to lay taxes or duties on exported products belongs to
every government possessing a general authority to select the objects
from which its revenues are to be derived, is a proposition which
admits of little doubt. It is not to be doubted, either, that it is a
power which may be attended with great benefit, not only for purposes
of revenue, but for the encouragement of manufactures; and it is clear
that it may often be used as a means of controlling the commercial
policy of other countries, when applied to articles which they cannot
produce, but which they must consume. A government that is destitute
of this power is not armed with the most complete and effectual means
for counteracting the regulations of foreign countries that bear
heavily upon the industrial pursuits of its people, although it may
have other and sufficient sources of revenue; and therefore, until an
unrestricted commercial intercourse and a free exchange of commodities
become the general policy of the world, to deny to any government a
power over the exported products of its own country, is to place it at
some disadvantage with all commercial nations that possess the power
to enhance the price of commodities which they themselves produce.

But, on the other hand, the practice of taxing the products of a
country, as they pass out of its limits to enter into the consumption
of other nations, can be beneficially exercised only by a government
that can select and arrange the objects of such taxation so as to do
nearly equal justice to all its producing interests. If, for example,
the article of wine were produced only by a single province of France,
and all the other provinces produced no commodities sought for by
other nations, an export duty upon wine would fall wholly upon the
single province where it was produced, and would place its production
at an unequal competition with the wines of other countries. But
France produces a variety of wines, the growth of many different
provinces; and therefore, in the adjustment of an export duty upon
wines, the government of that country, after a due regard to the
demand for each kind or class of this commodity, has chiefly to
consider the effect of such a tax in the competition with the same
commodity produced by other nations.

At the time of the formation of the Constitution of the United States,
there was not a single production, common to all the States, of
sufficient importance to become an article of general exportation.
Indeed, there were no commodities produced for exportation by so many
of the States, that a tax or duty imposed upon them on leaving the
country would operate with anything like equality even in different
sections of the Union. In fact, from the extreme northern to the
extreme southern boundary of the Union, the exports were so various,
both in kind and amount, that a tax imposed on an article the produce
of the South could not be balanced by a tax imposed upon an article
produced or manufactured at the North. How, for example, could the
burden of an export duty on the tobacco of Virginia, or the rice or
indigo of South Carolina, be equalized by a similar duty on the lumber
or fish or flour of other States? Possibly, after long experience and
the accumulation of the necessary statistics, an approach towards an
equality of such burdens might have been made; but it could never have
become more than an unsatisfactory approximation; and while the effect
of such a tax at one end of the Union on the demand for the commodity
subjected to it might be estimated,--because the opportunity for other
nations to supply themselves elsewhere might be so precise as to be
easily measured,--its effect at the other end of the Union, on another
commodity, might be wholly uncertain, because the demand from abroad
might be influenced by new sources of supply, or might from accidental
causes continue to be nearly the same as before.

However theoretically correct it might have been, therefore, to confer
on the general government the same authority to tax exports as to
impose duties on imported commodities,--and the argument for it drawn
from the necessities for revenue and protection of manufactures was
exceedingly strong,--the actual situation of the country made it quite
impracticable to obtain the consent of some of the States to a full
and complete revenue power. Several of the most important persons in
the Convention were strongly in favor of it. Washington, Madison,
Wilson, Gouverneur Morris, and Dickinson are known to have held the
opinion, that the government would be incomplete, without a power to
tax exports as well as imports. But the decided stand taken by South
Carolina, whose exports for a single year were said by General
Pinckney to have amounted to £600,000, the fruit of the labor of her
slaves, probably led the committee of detail to insert in their report
of a draft of the Constitution a distinct prohibition against laying
any tax or duty on articles exported from any State.

A similar question, in relation to the extent of the commercial power,
was destined to arise out of the relations of the different States to
the slave-trade. If the power to regulate commerce, that might be
conferred upon the general government, was to be universal and
unlimited, it must include the right to prohibit the importation of
slaves. If the right to sanction or tolerate the importation of
slaves, which, like all other political rights, belonged to the people
of the several States as sovereign communities, was to be retained by
them as an exception from the commercial power which they might confer
upon the national legislature, that exception must be clearly and
definitely established. For several reasons, the question was
necessarily to be met, as soon as the character and extent of the
commercial power should come into discussion. While the trade had been
prohibited by all the other States, including Virginia and Maryland,
it had only been subjected to a duty by North Carolina, and was
subjected to a similar discouragement by South Carolina and Georgia.
The basis of representation in the national legislature, in which it
had been agreed that the slaves should be included in a certain ratio,
created a strong political motive with the Northern States to obtain
for the general government a power to prevent further importations. It
was fortunate that this motive existed; for the honor and reputation
of the country were concerned to put an end to this traffic. No other
nation, it was true, had at that time abolished it; but here were the
assembled States of America, engaged in framing a Constitution of
government, that ought, if the American character was to be consistent
with the principles of the American Revolution, to go as far in the
recognition of human rights as the circumstances of their actual
situation would admit. What was practicable to be done, from
considerations of humanity, and all that could be successfully done,
was the measure of their duty as statesmen, admitted and acted upon by
the framers of the Constitution, including many of those who
represented slaveholding constituencies, as well as the
representatives of States that had either abolished both the traffic
in slaves and the institution itself, or were obviously destined to do
it.

This just and necessary rule of action, however, which limited their
efforts to what the actual circumstances of the country would permit,
made a clear distinction between a prohibition of the future
importation of slaves, and the manumission of those already in the
country. The former could be accomplished, if the consent of the
people of the States could be obtained, without trenching on their
sovereign control over the condition of all persons within their
respective limits. It involved only the surrender of a right to add to
the numbers of their slaves by continued importations. But the power
to determine whether the slaves then within their limits should remain
in that condition, could not be surrendered by the people of the
States, without overturning every principle on which the system of the
new government had been rested, and which had thus far been justly
regarded as essential to its establishment and to its future
successful operation.

It is not, therefore, to be inferred, because a large majority of the
Convention sought for a power to prohibit the increase of slaves by
further importation, that they intended by means of it to extinguish
the institution of slavery within the States. So far as they acted
from a political motive, they designed to take away the power of a
State to increase its congressional representation by bringing slaves
from Africa; and so far as they acted from motives of general justice
and humanity, they designed to terminate a traffic which never has
been and never can be carried on without infinite cruelty and national
dishonor. That the individuals of an inferior race already placed in
the condition of servitude to a superior one may, by the force of
necessity, be rightfully left in the care and dominion of those on
whom they have been cast, is a proposition of morals entirely fit to
be admitted by a Christian statesman. That new individuals may
rightfully be placed in the same condition, not by the act of
Providence through the natural increase of the species, but by the act
of man in transferring them from distant lands, is quite another
proposition. The distinction between the two, so far as a moral
judgment is concerned with the acts of the framers of the Constitution
upon the circumstances before them, defines the limits of duty which
they intended to recognize.

No satisfactory means exist for determining to what extent a
continuance of the importation of slaves was necessary, in an
economical point of view, to the States of North Carolina, South
Carolina, and Georgia. There is some reason to suppose that the
natural increase of the slave population in Virginia at that period
more than supplied her wants; and perhaps the less healthy regions of
the more southern States may have still required foreign supplies in
order to keep the lands already occupied under cultivation, or to make
new lands productive.[214] All that is historically certain on this
subject is, that the representatives of the three most southerly
States acted upon the belief, that their constituents would not
surrender the right to continue the importation of slaves, although
they might, if left to themselves, discontinue the practice at some
future time.

These declarations, however, had not been made at the time when the
principles on which the Constitution was to be framed were sent to the
committee of detail. Nothing had yet occurred in the Convention, to
make it certain that the power to import would be retained by any of
the States. The committee of detail had, therefore, so far as the
action of the Convention had gone, an unrestricted choice between a
full and a limited commercial power. They consisted of three members
from non-slaveholding and two from slaveholding States;[215] but as
one of them, Mr. Rutledge of South Carolina, was one of the persons
who subsequently announced to the Convention the position that would
be taken by his own State and by North Carolina and Georgia, there can
be no doubt that he announced the same determination in the committee.
In their report, they shaped the commercial power accordingly. They
provided that the legislature of the United States should have power
to lay and collect taxes, duties, imposts, and excises; and to
regulate commerce with foreign nations, and among the several States.

But they also reported several restrictions upon both the revenue and
commercial powers. Besides providing, in accordance with the ninth
resolution adopted by the Convention, that direct taxation should be
proportioned among the States according to the census, to be taken by
a particular rule, they added the further restrictions, that no tax or
duty should be laid by the national legislature on articles exported
from any State, nor on the migration or importation of such persons as
the several States might think proper to admit; that such migration or
importation should not be prohibited; that no capitation tax should be
laid, unless in proportion to the census; and that no navigation act
should be passed without the assent of two thirds of the members
present in each house.

That the new government must have a direct revenue power, was
generally conceded, and it was also generally admitted that it must
have a power to regulate commerce with foreign countries. But the idea
was more or less prevalent among the Southern statesmen, that the
interest of their own States, considered as a distinct and separate
interest from that of the commercial States, did not require a
regulation of commerce by the general government. It is not easy to
determine to what extent these views were correct. Taking into
consideration nothing more than the fact, that the staple production
of Virginia was tobacco, as it was also partly that of North Carolina;
that rice and indigo were the great products of South Carolina and
Georgia; and that neither of these four States possessed a large
amount of shipping;--it might certainly be considered that an
unrestricted foreign intercourse was important to them.

But, on the other hand, if those States, by clothing the Union with a
power to regulate commerce, were likely to subject themselves to a
temporary rise of freights, the measures which might have that effect
would also tend directly to increase Southern as well as Northern
shipping, to augment the commercial marine of the whole country, and
thus to increase its general maritime strength. The general security
thus promoted was as important to one class of States as to another.
The increase of the coasting trade would also increase the consumption
of the produce of all the States. The great benefit, however, to be
derived from a national regulation of commerce,--a benefit in which
all the States would equally share, whatever might be their
productions,--was undoubtedly the removal of the existing and
injurious retaliations which the States had hitherto practised against
each other.[216]

Still, these advantages were indirect or incidental. The immediate and
palpable commercial interests of different portions of the Union,
regarded in the mass, were not identical; and it was in one sense
true, that the power of regulating commerce was a concession on the
part of the Southern States to the Northern, for which they might
reasonably expect equivalent advantages, or which they might
reasonably desire to qualify by some restriction.

On the reception of the report of the committee of detail, and when
the article relating to representation was reached, the consequences
of agreeing that the slaves should be computed in the rule, taken in
connection with an unrestrained power in the States to increase the
slave populations by further importation, and with the exemption of
exports from taxation, became more prominent, and more likely to
produce serious dissatisfaction. The concession of the slave
representation had been made by some of the Northern members, in the
hope that it might be the means of strengthening the plan of
government, and of procuring for it full powers both of revenue and of
commercial regulation. But now, it appeared that, as to two very
important points, the hands of the national legislature were to be
absolutely tied. The importation of slaves could not be prohibited;
exports could not be taxed. These restrictions seemed to many to have
an inevitable tendency to defeat the great primary purposes of a
national government. All must agree, that defence against foreign
invasion and against internal sedition was one of the principal
objects for which such a government was to be established. Were all
the States then to be bound to defend each, and was each to be at
liberty to introduce a weakness which would increase both its own and
the general danger, and at the same time to withhold the compensation
for the burden? If slaves were to be imported, why should not the
exports produced by their labor supply a revenue, that would enable
the general government to defend their masters? To refuse it, was so
inequitable and unreasonable, said Rufus King, that he could not
assent to the representation of the slaves, unless exports should be
taxable;--perhaps he could not finally consent to it, under any
circumstances.[217]

Gouverneur Morris, with his accustomed ardor, went further still, and
insisted on re-opening the subject of representation, now that the
other features of the system were to be made to favor the increase of
slaves, and to throw the burdens of maintaining the government chiefly
upon the Northern States. It was idle, he declared, to say that direct
taxation might be levied upon the slaveholding States in proportion to
their representative population: for the general government could
never stretch out its hand, and put it directly into the pockets of
the people, over so vast a country. Its revenues must be derived from
exports, imports, and excises. He therefore would not consent to the
sacrifices demanded, and moved the insertion of the word "free" before
the word "inhabitants," in the article regulating the basis of
representation.[218]

But there were few men in the Convention bold enough to hazard the
consequences of unsettling an arrangement, which had cost so much
labor and anxiety; which had been made as nearly correct in theory as
the circumstances of the case would allow; and which was, in truth,
the best practical solution of a great difficulty. Mr. Morris's motion
received the vote of a single State only.[219] The great majority of
the delegations considered it wiser to go on to the discussion of the
proposed restrictions upon the revenue and commercial powers, in the
hope that each of them might be considered and acted upon with
reference to the true principles applicable to the subject, or that
the whole might be adjusted by some agreement that would not disturb
what had been settled with so much difficulty.

The great embarrassment attending the proposed restriction upon the
taxation of exports was, that, however the question might be decided,
it would probably lose for the new government the support of some
important members of the Convention. Those who regarded it as right
that the government should have a complete revenue power, contended
for the convenience with which a large staple production, in which
America was not rivalled in foreign markets, could be made the subject
of an export tax, that would in reality be paid by the foreign
consumer. On the other side, the very facility with which such objects
could be selected for taxation alarmed the States whose products
presented the best opportunity for exercising this power. They did not
deny the obvious truth, that the tax must ultimately fall on the
consumer; but they considered it enough to surrender the power of
levying duties upon imports, without giving up the control which each
State now had over its own productions.[220]

But there was also another question involved in the form in which the
proposed restriction had been presented. It prohibited the national
government from taxing exports, but imposed no restraint in this
respect upon the power of the States. If they were to retain the power
over their own exports, they would have the same right to tax the
products of other States exported through their maritime towns. This
power had been used to a great extent, and always oppressively.
Virginia had taxed the tobacco of North Carolina; Pennsylvania had
taxed the products of Maryland, of New Jersey, and of Delaware; and it
was apparent, that every State, not possessed of convenient and
accessible seaports, must hereafter submit to the same exactions, if
this power were left unrestrained. Give it to the general government,
said the advocates for a full revenue power, and the inconveniences
attending its exercise by the separate States will be avoided. But
those who were opposed to the possession of such a power by the
general government, apprehended greater oppression by a majority of
the States acting through the national legislature, than they could
suffer at the hands of individual States. The eight Northern States,
they said, had an interest different from the five Southern States,
and in one branch of the legislature the former were to have
thirty-six votes, and the latter twenty-nine.

From considerations like these, united with others which would render
it nearly impracticable to select the objects of such taxation so as
to make it operate equally, the restriction prevailed.[221] The
revenue power was thus shorn of one great branch of taxation, which,
however difficult it might be to practise it throughout such a country
as this, is part of the prerogatives of every complete government,
which was believed by many to be essential to the success of the
proposed Constitution, but which was resisted successfully by others,
as oppressive to their local and peculiar interests.

Was the commercial power to experience a like diminution from the full
proportions of a just authority over the external trade of the States?
Were the States, whose great homogeneous products, derived from the
labor of slaves, would supply no revenue to the national treasury, to
be left at liberty to import all the slaves that Africa could furnish?
Were the commercial States to see the carrying trade of the
country--embracing the very exports thus exempted from burdens of
every kind, and thus stimulated by new accessions of slaves--pass
into foreign bottoms, and be unable to protect their interests by a
majority of votes in the national legislature? Was there to be no
advantageous commercial treaty obtained from any foreign power, unless
the measures needful to compel it could gain the assent of two thirds
of Congress? Was the North to be shut out for ever from the West India
trade, and was it at the same time to see the traffic in slaves
prosecuted without restraint, and without the prospect or the hope of
a final termination?

These were grave and searching questions. The vote exempting exports
from the revenue power could not be recalled. It had passed by a
decided majority of the States; and many suffrages had been given for
the exemption, not from motives of a sectional nature, but on account
of the difficulty that must attend the exercise of the power, and from
the conviction that such taxation is incorrect in principle. So far,
therefore, the Southern States had gained all that they desired in
respect to the revenue power, and now three of them, with great
firmness, declared that the question in relation to the commercial
power was, whether they should or should not be parties to the Union.
If required to surrender their right to import slaves, North Carolina,
South Carolina, and Georgia would not accept the Constitution,
although they were willing to make slaves liable to an equal tax with
other imports.[222] It was also manifest, that the clause which
required a navigation act to be passed by two thirds of each house,
was to be insisted on by some, although not by all, of the Southern
members.

Thus was a dark and gloomy prospect a second time presented to the
framers of the Constitution. If, on the one side, there were States
feeling themselves bound as a class to insist on certain concessions,
on the other side were those by whom such concessions could not be
made. The chief motive with the Eastern, and with most of the Northern
States, in seeking a new union under a new frame of government, was a
commercial one. They had suffered so severely from the effects of the
commercial policy of England and other European nations, and from the
incapacity of Congress to control that policy, that it had become
indispensable to them to secure a national power which could dictate
the terms and vehicles of commercial intercourse with the whole
country. Cut off from the British West India trade by the English
Orders in Council, the Eastern and Middle States required other means
of counteracting those oppressive regulations than could be found in
their separate State legislation, which furnished no power whatever
for obtaining a single commercial treaty.[223] Besides these
considerations, which related to the special interests of the
commercial States, the want of a navy, which could only be built up by
measures that would encourage the growth of the mercantile marine, and
which, although needed for the protection of commerce, was also
required for the defence of the whole country, made it necessary that
the power to pass a navigation act should be burdened with no serious
restrictions.

The idea of requiring a vote of two thirds in Congress for the passage
of a navigation act, founded on the assumed diversity of Northern and
Southern, or the commercial and the planting interests, proceeded upon
the necessity for a distinct protection of the latter against the
former, by means of a special legislative check. To a certain extent,
as I have already said, these interests, when regarded in their
aggregates, offered a real diversity. But it did not follow that this
peculiar check upon the power of a majority was either a necessary or
an expedient mode of providing against oppressive legislation. In
every system of popular government, there are great disadvantages in
departing from the simple rule of a majority; and perhaps the
principle which requires the assent of more than a majority ought
never to be extended to mere matters of legislation, but should be
confined to treaty stipulations, and to those fundamental changes
which affect the nature of the government and involve the terms on
which the different portions of society are associated together.

It was undoubtedly the purpose of those who sought for this particular
restriction, to qualify the nature of the government, in its relation
to the interests of commerce. But the real question was, whether there
existed any necessary reason for placing those interests upon a
different footing from that of all other subjects of national
legislation. The operation of the old rule of the Confederation, which
required the assent of nine States in Congress to almost all the
important measures of government, many of which involved no
fundamental right of separate States, had revealed the inconveniences
of lodging in the hands of a minority the power to obstruct just and
necessary legislation. If, indeed, it was highly probable that the
power, by being left with a majority, would be abused,--if the
interests of the Eastern and Middle States were purely and wholly
commercial, and would be likely so to shape the legislation of the
country as to encourage the growth of its mercantile marine, at the
expense of other forms of industry and enterprise, and no other
suitable and efficient checks could be found,--then the restriction
proposed might be proper and necessary.

But in truth the separate interests of the Eastern and Middle States,
when closely viewed, were not in all respects the same. Connecticut
and New Jersey were agricultural States. New York and Pennsylvania,
although interested in maritime commerce, were destined to be great
producers of the most important grains. Maryland, although a
commercial, was also an agricultural State. The new States likely to
be formed in the West would be almost wholly agricultural, and would
have no more shipping than might be required to move the surplus
products of their soil upon their great inland lakes towards the
shores of the Atlantic. All these States, existing and expectant, were
interested to obtain commercial treaties with foreign countries; all
needed the benefits of uniform commercial regulations; but they were
not all equally interested in a high degree of encouragement to the
growth of American shipping, by means of a stringent navigation act,
that would bear heavily upon the Southern planter.

Not only was there a very considerable protection against the abuse of
its power by a sectional majority, in these more minute diversities of
interest, but there were also two very efficient legislative checks
upon that power already introduced into the government. If an unjust
and oppressive measure had commanded a majority in the House, it might
be defeated in the Senate, or, if that check should fail, it might be
arrested by the executive.

It had, nevertheless, been made part of the limitations upon the
commercial power, embraced in the report of the committee of detail,
that a navigation act should require a vote of two thirds of both
branches of the legislature. The vote which adopted the prohibition
against taxes on exports, taken on the 21st of August, was followed,
on that day and the next, by an excited debate on the taxation of the
slave-trade, in which the three States of Georgia, North Carolina, and
South Carolina made the limitation upon the power of the Union over
this traffic the condition of their accepting the Constitution. This
debate was closed by the proposition of Gouverneur Morris, to refer
the whole subject to a committee of one from each State, in order
that the three matters of exports, the slave-trade, and a navigation
act might form a bargain or compromise between the Northern and the
Southern States.[224] But the prohibition against taxing exports had
already been agreed to, and there remained to be committed only the
proposed restriction against taxing or prohibiting the migration or
importation of such persons as the States might see fit to admit, the
restriction which required a capitation tax to conform to the census,
and the proposed limitation upon the power to pass a navigation act.
Thus, in effect, the questions to come before this committee were,
whether the slave-trade should be excepted from both the commercial
and revenue powers of the general government, and whether the
commercial power should be subjected to a restriction which required a
vote of two thirds in dealing with the commercial interests of the
Union.

We know very little of the deliberations of this committee; but as
each State was equally represented in it, and as the position of the
different sectional objects is quite clear, we can have no difficulty
in forming an opinion as to the motives and purposes of the settlement
which resulted from their action, or in obtaining a right estimate of
the result itself.

In the first place, then, we are to remember the previous concessions
already made by the Northern States, and the advantages resulting from
them. These concessions were the representation of the slaves and the
exemption of exports from taxation. If the slaves had not been
included in the system of representation, the Northern States could
have had no political motive for acquiring the power to put an end to
the slave-trade. If the exports of their staple productions had not
been withdrawn from the revenue power, the Southern States could have
had no very strong or special motive to draw them into the new Union;
but with such an exemption, they could derive benefits from the
Constitution as great as those likely to be enjoyed by their Northern
confederates. Both parties, therefore, entered the final committee of
compromise with a strong desire to complete the Union and to establish
the new government. The Northern States wished for a full commercial
power, including the slave-trade and navigation laws, to be dependent
on the voices of a majority in Congress. The Southern States struggled
to retain the right to import slaves, and to limit the enactment of
navigation laws to a vote of two thirds. Both parties could be
gratified only by conceding some portion of their respective demands.

If the Northern States could accept a future, instead of an immediate,
prohibition of the slave-trade, they could gain ultimately a full
commercial power over all subjects, to be exercised by a national
majority. If the Southern States could confide in a national majority,
so far as to clothe them with full ultimate power to regulate
commerce, they could obtain the continuance of the slave-trade for a
limited period.

Such was in reality the adjustment made and recommended by the
committee. They proposed that the migration or importation of such
persons as the several States then existing might think proper to
admit, should not be prohibited by the national legislature before the
year 1800, but that a tax or duty might be imposed on such persons, at
a rate not exceeding the average of the duties laid on imports; that
the clause relating to a capitation tax should remain; and that the
provision requiring a navigation act to be passed by a vote of two
thirds, should be stricken out.[225]

No change was made in this arrangement, when it came before the
Convention, except to substitute the year 1808 as the period at which
the restriction on the commercial power was to terminate, and to
provide for a specific tax on the importation of slaves, not exceeding
ten dollars on each person.[226] The remaining features of this
settlement, relating to a capitation tax and a navigation act, were
sanctioned by a large majority of the States.[227]

Thus, by timely and well-considered concessions on each side, was the
slave-trade brought immediately within the revenue power of the
general government, and also, at the expiration of twenty years,
within its power to regulate commerce. By the same means, the
commercial power, without any other restriction than that relating to
the temporary toleration of the importation of slaves, was vested in
a national majority. This result at once placed the foreign
slave-trade by American vessels or citizens within the control of the
national legislature, and enabled Congress to forbid the carrying of
slaves to foreign countries; and at the end of the year 1808, it
brought the whole traffic within the reach of a national
prohibition.[228]

Too high an estimate cannot well be formed, of the importance and
value of this final settlement of conflicting sectional interests and
demands. History has to thank the patriotism and liberality of the
Northern States, for having acquired, for the government of the Union,
by reasonable concessions, the power to terminate the African
slave-trade. We know, from almost every day's experience since the
founding of the government, that individual cupidity, which knows no
geographical limits, which defies public opinion whether in the North
or in the South, required and still requires the restraint and
chastisement of national power. The separate authority of the States
would have been wholly unequal to the suppression of the slave-trade:
for even if they had all finally adopted the policy of a stringent
prohibition, without a navy, and without treaties, they could never
have contended against the bold artifice and desperate cunning of
avarice, stimulated by the enormous gains which have always been
reaped in this inhuman trade.

The just and candid voice of History has also to thank the Southern
statesmen who consented to this arrangement, for having clothed a
majority of the two houses of Congress with a full commercial power.
They felt, and truly felt, that this was a great concession. But they
looked at what they had gained. They had gained the exemption of their
staple productions from taxation as objects of foreign commerce; the
enumeration of their slaves in the basis of Congressional
representation; and the settlement of the slave-trade upon terms not
offensive to State pride. They had also gained the Union, with its
power to maintain an army and a navy,--with its power and duty to
protect them against foreign invasion and domestic insurrection, and
to secure their republican constitutions. They looked, therefore, upon
the grant of the power to regulate commerce by the ordinary modes of
legislation, in its relations to the interests of a great empire,
whose foundations ought to be laid broadly and deeply on the national
welfare.[229] They saw that the Revolution had cost the Eastern States
enormous sacrifices of commercial wealth, and that the weakness of the
Confederation had destroyed the little remnant of their trade.[230]
They saw and admitted the necessity for an unrestrained control over
the foreign commerce of the country, if it was ever to rise from the
prostrate condition in which it had been placed by foreign powers.
They acted accordingly; and by their action, they enabled the States
of North Carolina, South Carolina, and Georgia to enter the new Union
without humiliation and without loss.[231]

Thus was accomplished, so far as depended on the action of this
Convention, that memorable compromise, which gave to the Union its
control over the commercial relations of the States with foreign
nations and with each other. An event so fraught with consequences of
the utmost importance cannot be dismissed without some of the
reflections appropriate to its consideration.

Nature had marked America for a great commercial nation. The sweep of
the Atlantic coast, from the Bay of Fundy to the Gulf of Florida,
comprehending twenty degrees of latitude, broken into capacious bays
and convenient harbors, and receiving the inward flow of the sea into
great navigable rivers that stretched far into the interior, presented
an access to the ocean not surpassed by that of any large portion of
the globe. This long range of sea-coast embraced all the varieties of
climate that are found between a hard and sterile region, where summer
is but the breath of a few fervid weeks, and the ever blooming
tropics, where winter is unknown. The products of the different
regions, already entering, or fit to enter, into foreign commerce,
attested as great a variety of soils. The proximity of the country to
the West Indies, where the Eastern and the Middle States could find
the best markets for some of their most important exports, afforded
the promise of a highly lucrative trade; while the voyage to the East
Indies from any American port could be performed in as short a time as
from England or Holland or France. In the South, there were great
staples already largely demanded by the consumption of Europe. In the
North, there were fisheries of singular importance, capable of
furnishing enormous additions to the wealth of the country. Beyond the
Alleghanies, the West, with its vast internal waters and its almost
unequalled fertility, had been opened to a rapid emigration, which was
soon to lay the foundation of new States, destined to be the abodes of
millions of men.

The very variety and extent of these interests had for many years
occasioned a struggle for some mode of reconciling and harmonizing
them all. But divided into separate governments, the commercial
legislation of the States could produce nothing but the confusion and
uncertainty which retaliation necessarily engenders. Different systems
and rates of revenue were in force in seaports not a hundred miles
apart, through which the inhabitants of other jurisdictions were
obliged to draw their supplies of foreign commodities, and to export
their own productions. The paper-money systems of the several States
made the commercial value of coin quite different in different places,
and gave an entirely insecure basis to trade.

The reader, who has followed me through the preceding volume, has
seen how the people of the United States, from the earliest stages of
the Revolution, struggled to free themselves from these
embarrassments;--how they commenced with a jealous reservation of
State authority over all matters of commerce and revenue; how they
undertook to supply the necessities of a central government by
contributions which they had not the power to make good, because their
commercial condition did not admit of heavy taxation; how they
endeavored to pass from this system to a grant of temporary revenues
and temporary commercial regulation, to be vested in the federal
Union; how they found it impracticable to agree upon the principles
and details of a temporary power; how they turned to separate
commercial leagues, each with its immediate neighbors, and were
disappointed in the result or frustrated in the effort; and how at
last they came to the conception of a full and irrevocable surrender
of commercial and fiscal regulations to a central legislature, that
could grasp the interests of the whole country and combine them in one
harmonious system.

The influence of the commercial and revenue powers, thus obtained by
the general government, on the condition of this country, has far
exceeded the most sanguine hopes which the framers of the Constitution
could have indulged. No one can doubt that the people of America owe
to it both the nature and the degree of their actual prosperity;--and
as the national prosperity has given them importance in the world, it
is just and accurate to say, that commerce and its effects have
elevated republican institutions to a dignity and influence which they
have attained through no other of the forms or the spirit of society.
Let the reader consider the interests of commerce, in their widest
relations with all that they comprehend,--the interests of the
merchant, the artisan, and the tiller of the soil being alike
involved,--as the chief purpose of the new government given to this
Union; let him contemplate this as the central object around which are
arranged almost all the great provisions of the Constitution of the
United States;--and he will see in it a wonderfully harmonious and
powerful system, created for the security of property, and the
promotion of the material welfare and prosperity of individuals,
whatever their occupation, employment, or condition. That such a code
of civil government should have sprung from the necessities of
commerce, is surely one of the triumphs of modern civilization.

It is not to be denied, that the sedulous care with which this great
provision was made for the general prosperity has had the effect of
impressing on the national character a strong spirit of acquisition.
The character of a people, however, is to be judged not merely by the
pursuit or the possession of wealth, but chiefly by the use which they
make of it. If the inhabitants of the United States can justly claim
distinction for the benevolent virtues; if the wealth that is eagerly
sought and rapidly acquired is freely used for the relief of human
suffering; if learning, science, and the arts are duly cultivated; if
popular education is an object of lavish expenditure; if the
institutions of religion, though depending on a purely voluntary
support, are provided for liberally, and from conscientious
motives;--then is the national spirit of acquisition not without
fruits, of which it has no need to be ashamed.

The objection, that the Constitution of the United States, and the
immense prosperity which has flowed from it, were obtained by certain
concessions in favor of the institution of slavery, results from a
merely superficial view of the subject. If we would form a right
estimate of the gain or loss to human nature effected by any given
political arrangement, we must take into consideration the antecedent
facts, and endeavor to judge whether a better result could have been
obtained by a different mode of dealing with them. We shall then be
able to appreciate the positive good that has been gained, or the
positive loss that has been suffered.

The prominent facts to be considered in this connection are, in the
first place, that slavery existed, and would long exist, in certain of
the States; and that the condition of the African race in those States
was universally regarded as a matter of purely local concern. It could
not in fact have been otherwise; for there were slaves in every State
excepting Massachusetts and New Hampshire; and among the other States
in which measures had been, or were likely to be, taken for the
removal of slavery, there was a great variety of circumstances
affecting the time and mode in which it should be finally
extinguished. As soon as the point was settled, in the formation of
the Constitution of the United States, that the State governments were
to be preserved, with all their powers unimpaired which were not
required by the objects of the national government to be surrendered
to the Union, the domestic relations of their inhabitants with each
other necessarily remained under their exclusive control. Those
relations were not involved in the purposes of the Federal Union.

So soon, also, as this was perceived and admitted, it became a
necessary consequence of the admission, that the national authority
should guarantee to the people of each State the right to shape and
modify their own social institutions; for without this principle laid
at the foundation of the Union, there could be no peace or security
for such a mixed system of government.

In the second place, we have to consider the fact, that, among the
political rights of the States anterior to the national Constitution,
was the right to admit or to prohibit the further importation of
slaves;--a traffic not then forbidden by any European nation to its
Colonies, but which had been interdicted by ten of the American
States. The transfer of this right to the Federal Union was a purely
voluntary act; it was not strictly necessary for the purposes for
which it was proposed to establish the Constitution of the United
States; although there were political reasons for which a part of the
States might wish to acquire control over this subject, as well as
moral reasons why all the States should have desired to vest that
control in the general government. Three of the States, however, as we
have seen, took a different view of their interest and duty, and
declined to enter the new Union unless this traffic should be excepted
from the power over commerce for a period of twenty years.

It is quite plain, that, if these facts had been met and dealt with in
a manner different from the settlement that was actually made, one of
two consequences must have ensued;--either no Constitution at all
could have been adopted, or there would have been a Union of some
kind, from which three at least of the States must have been excluded.
If the first, by far the most probable contingency, had happened, a
great feebleness and poverty of society must have continued to be the
lot of all these States; there must have been perpetual collisions and
rival confederacies; there certainly would have been an indefinite
continuance of the slave-trade, accompanied and followed by a great
external pressure upon the States which permitted it, which would have
led to a war of races, or to a frightful oppression of the slaves.
Most of these evils would have followed the establishment of a partial
confederacy.

On the other hand, we are to consider what has been gained to humanity
by the establishment of the Constitution. The extinction of the
slave-trade, followed by a public opinion with reference to it that is
as strong and reliable in the Southern as in the Northern States, was
purchased at a price by no means unreasonable, when compared with the
magnitude of the acquisition. The great prosperity and high
civilization which are due to the commercial power of the Constitution
have been a vast benefit to both races;--to the whites by the superior
refinement they have created, and to the blacks by the gradual but
certain amelioration of their condition. The social strength and
security occasioned by constantly increasing wealth, combined with the
acknowledgment and establishment of the doctrine which makes every
State the uncontrolled arbiter of the domestic condition of its
inhabitants, has put it in the power of those who have charge of the
negro to deal prudently and wisely with their great problem, without
the interference of those who could benefit neither race by their
intervention. This, in every rational view of the subject, cannot but
be regarded as one of the chief blessings conferred by the
Constitution of the United States.

It has made emancipation possible, where otherwise it would have been
impossible, or where it could have been obtained only through the
horrors of both servile and civil war. It has enabled local
authorities to adapt changes to local circumstances. Its beneficent
influences may be traced in the laws of the States, in the records of
their jurisprudence, and in the advanced and advancing condition of
their public sentiment; and he who should follow those influences in
all their details, and count the sum of what it has effected for the
moral and physical well-being of the subjected race, would find cause
for devout gratitude to the Ruler of the Universe. Great as has been
the increase of slaves in the United States during the last seventy
years, there can be no question that the general improvement of their
condition has been equally great, and that it has kept pace with the
increasing prosperity of the country. That prosperity has enabled
individual enterprise and benevolence to plant a colony upon the coast
of Africa, which, after centuries of discipline and education, may yet
be the means of restoring to its native soil, as civilized and
Christian men, a race that came to us as heathens and barbarians.

Surely, then, with such results to look back upon, with such hopes in
the future, the patriot and the Christian can have no real cause for
regret or complaint, that in a system of representative government,
made necessary by controlling circumstances, the unimportant anomaly
should be found, of a representation of men without political rights
or social privileges; or that the question of emancipation, either for
the mass or the individual, should be carefully secured to local
authority; or even that the slave-trade should have been prosecuted
for a few years, to be extinguished by America first of all the
nations of the world.

FOOTNOTES:

[211] See Madison, Elliot, V. 302, 357.

[212] See the remarks of Gouverneur Morris in the debate on the
apportionment of representatives, in which he stated the dilemma
precisely in this way. Elliot, V. 301.

[213] No candid man, said Rufus King, could undertake to justify to
them a system under which slaves were to continue to be imported, and
to be represented, while the exports produced by their labor were not
to pay any part of the expenses of the government which would be
obliged to defend their masters against domestic insurrections or
foreign attacks. Elliot, V. 391.

[214] See the remarks of Mr. Ellsworth and General Pinckney, as
reported by Mr. Madison, Elliot, V. 458, 459.

[215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and
Wilson. I have classed Mr. Ellsworth among the representatives of
non-slaveholding States; for although there were between two and three
thousand slaves in Connecticut at this time, provision had already
been made for its prospective and gradual abolition. It was not
finally extinct in that State until after the year 1840. The United
States census for 1790 returned 2,759 slaves for Connecticut; the
census for 1840 returned 17; in the census for 1850 none were
returned. A like gradual abolition took place in New Hampshire, Rhode
Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery
was abolished by the State Constitution of 1780.

[216] See the remarks of Mr. Madison, Elliot, V. 490.

[217] Madison, Elliot, V. 391, 392.

[218] Ibid. 392, 393.

[219] New Jersey.

[220] The opposition to a power to tax exports was not confined to the
members from North and South Carolina and Georgia. Ellsworth and
Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts
considered such a power wrong in principle, and incapable of being
exercised with equality and justice.

[221] The vote was taken (August 21) upon so much of the fourth
section of the seventh article of the reported draft, as affirmed that
"no tax or duty shall be laid by the legislature on articles exported
from any State." Massachusetts, Connecticut, Maryland, Virginia
(General Washington and Mr. Madison _no_), North Carolina, South
Carolina, Georgia, _ay_, 7; New Hampshire, New Jersey, Pennsylvania,
Delaware, _no_, 4.--If the subject had been left in this position,
exports would have been taxable by the States. The plan of restraining
the power of the States over exports was subsequently adopted, after
the compromise involving the revenue and commercial powers of the
general government had been settled.

[222] Elliot, V. 457-461.

[223] See _ante_, Vol. I. Book III. Chap. IV., on the origin and
necessity of the commercial power.

[224] Elliot, V. 460.

[225] Elliot, V. 470, 471.

[226] Two grave objections were made to this settlement respecting the
importation of slaves. Mr. Madison records himself as saying, in
answer to the motion of General Pinckney to adopt the year 1808, that
twenty years would produce all the mischief that could be apprehended
from the slave-trade, and that so long a term would be more
dishonorable to the American character, than to say nothing about it
in the Constitution. But the real question was, whether the power to
prohibit the importation at any time could be acquired for the
Constitution; and the facts show that it could have been obtained only
by the arrangement proposed and carried. The votes of seven States
against four, given for General Pinckney's motion, show the
convictions then entertained. The other objection (urged by Roger
Sherman and Mr. Madison) was, that to lay a tax upon imported slaves
implied an acknowledgment that men could be articles of property. But
it appears from the statements of other members, also recorded by
Madison, that it was part of the compromise agreed upon in committee,
that the slave-trade should be placed under the revenue power, in
consideration of its not being placed at once within the commercial
power. It also appears that the tax was made to apply to the
"_importation_ of such persons as the States might see fit to admit,"
until the year 1808, in order to include and to discourage the
introduction of convicts.

But the principal object was undoubtedly the slave-trade; and this
particular phraseology was employed, instead of speaking directly of
the importation of _slaves_ into the States of North Carolina, South
Carolina, and Georgia, in order, on the one hand, not to give offence
to those States, and on the other, to avoid offending those who
objected to the use of the word "slaves" in the Constitution. Elliot,
V. 477, 478.

[227] That part of the compromise relating to the slave-trade, &c. was
adopted in Convention by the votes of New Hampshire, Massachusetts,
Connecticut, Maryland, North Carolina, South Carolina, Georgia, _ay_,
7; New Jersey, Pennsylvania, Delaware, Virginia, _no_, 4. Maryland,
Virginia, North Carolina, and Georgia voted for a proposition made by
C. Pinckney, to postpone the report, in order to take up a clause
requiring all commercial regulations to be passed by two thirds of
each house. But on the rejection of this motion, the report of the
compromise committee, recommending that a two-thirds vote for a
navigation act be stricken out, was agreed to, _nem. con._; as was
also the clause relating to a capitation tax.

[228] See the note on the American abolition of the slave-trade,
_ante_, Vol. I. p. 460.

[229] See the remarks of John Rutledge. Madison, Elliot, V. 491.

[230] General Pinckney. Ibid. 489.

[231] The point respecting the slave-trade was insisted upon by the
delegates of those three States, both as a matter of State pride and a
matter of practical interest. They regarded the increase of their
slave population by new importations as a thing of peculiarly domestic
concern, the control of which they were unwilling to transfer to the
general government. But they also contended for a political right
which their States intended to exercise. The following table, taken
from the United States Census, shows that in the twenty years which
elapsed from 1790 to 1810 during eighteen of which the importation of
slaves could not be prohibited by Congress, the slaves of those three
States increased in a ratio so much larger than the rate of increase
after the year 1808, as to make it apparent that it was not a mere
abstraction on which they insisted. The right to admit the importation
of slaves was exercised, and was intended to be exercised;--as some of
the delegates of the three States declared in the Convention.

PROGRESS OF THE SLAVE POPULATION FROM 1790 TO 1850, SHOWING THE
INCREASE PER CENT IN EACH PERIOD OF TEN YEARS.

                 North Carolina.   South Carolina.   Georgia.
  1790 to 1800        32.53             36.46         102.99
  1800 to 1810[A]     26.65             34.35          77.12
  1810 to 1820        21.43             31.62          42.23
  1820 to 1830        19.79             22.62          45.35
  1830 to 1840[B]      0.08              3.68          29.15
  1840 to 1850        17.38             17.71          35.85

  [A] The constitutional power of Congress to prohibit the importation
  took effect and was exercised in 1808.

  [B] The great diminution in the rates of increase during this period
  is probably due to the removal of slaves into Alabama, Arkansas,
  Louisiana, and Texas.

But while the census shows that the power to admit slaves was
exercised freely during the twenty years that followed the adoption of
the Constitution of the United States, it also shows that the States
which insisted on retaining it for that period could well afford to
surrender it at the stipulated time. In 1810, the proportion of the
blacks of North Carolina to the whole population was 32.24 per cent,
and in 1850 it was 36.36; in South Carolina the proportion in 1810 was
48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in
1850, 42.44. It is not probable, therefore, that the prosperity of
those States has been diminished by the discontinuance of the
slave-trade; for it is not likely that they could well sustain a much
larger ratio of the blacks to the whites than that which now exists,
and which will probably continue to be maintained at about the same
point for a long period of time.



CHAPTER XI.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF
CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES.


In the last preceding chapter, the reader has traced the origin of the
revenue and commercial powers, and of certain restrictions applied to
them in the progress of those great compacts, by means of which they
became incorporated into the Constitution. We have now to examine some
other qualifications which were annexed to those powers after the
first draft of the instrument had been prepared and reported by the
committee of detail.

That committee had presented a naked power to lay and collect taxes,
duties, imposts, and excises,[232] with a certain restriction as to
the taxation of exports, the final disposition of which has been
already described; but they had designated no particular objects to
which the revenues thus derived were to be applied. The general clause
embracing the revenue power was affirmed unanimously by the
Convention, on the 16th of August, leaving the exception of exports
for future action. At a subsequent period we find the words, "to pay
the debts and provide for the common defence and general welfare of
the United States," added to the clause which empowers Congress to
levy taxes and duties; and it is a somewhat important inquiry, how and
with what purpose they were placed there.

While the powers proposed by the committee of detail were under
consideration, Mr. Charles Pinckney introduced several topics designed
to supply omissions in their report, which were thereupon referred to
that committee. The purpose of one of his suggestions was to provide,
on the one hand, that funds appropriated for the payment of public
creditors should not, during the time of such appropriation, be
diverted to any other purpose; and, on the other hand, that Congress
should be restrained from establishing perpetual revenues. Another of
his suggestions contemplated a power to secure the payment of the
public debt, and still another to prevent a violation of the public
faith when once pledged to any public creditor.[233] Immediately after
this reference, Mr. Rutledge moved for what was called a grand
committee,[234] to consider the expediency of an assumption by the
United States of the State debts; and after some discussion of the
subject, such a committee was raised, and Mr. Rutledge's motion was
referred to them, together with a proposition introduced by Mr. Mason
for restraining grants of perpetual revenue.[235] Thus it appears that
the principal subject involved in the latter reference was the
propriety of inserting in the Constitution a specific power to make
special appropriations for the payment of debts of the United States
and of the several States, incurred during the late war for the common
defence and general welfare; and not to make a declaration of the
general purposes for which revenues were to be raised. Both
committees, however, seemed to have been charged with the
consideration of some restraint on the revenue power, with a view to
prevent perpetual taxes of any kind. The grand committee reported
first, presenting the following special provision:--"The legislature
of the United States shall have power to fulfil the engagements which
have been entered into by Congress, and to discharge, as well the
debts of the United States, as the debts incurred by the several
States during the late war for the common defence and general
welfare."[236] On the following day, the committee of detail presented
a report, recommending that at the end of the clause already adopted,
which contained the grant of the revenue power, the following words
should be added: "for payment of the debts and necessary expenses of
the United States; provided that no law for raising any branch of
revenue, except what may be specially appropriated for the payment of
interest on debts or loans, shall continue in force for more than
----years."[237]

Two distinct propositions were thus before the Convention. One of them
contemplated a qualification of the revenue power, the other did not.
One was to give authority to Congress to pay the revolutionary debt,
both of the United States and of the States, and to fulfil all the
engagements of the Confederation; the other was to declare that
revenues were to be raised and taxes levied for the purpose of paying
the debts and necessary expenses of the United States, limiting all
revenue laws, excepting those which were to appropriate specific funds
to the payment of interest on debts or loans, to a term of years. When
these propositions came to be acted upon, that reported by the grand
committee was modified into the declaration that "all debts contracted
and engagements entered into, by or under the authority of Congress,
shall be as valid against the United States, under this Constitution,
as under the Confederation." The State debts were thus left out; the
declaration was prefixed, as an amendment, to the clause which granted
the revenue power, and was thus obviously no qualification of that
power.[238]

But it was thought by Mr. Sherman, that the clause for laying taxes
and duties ought to have connected with it an express provision for
the payment of the old debts; and he accordingly moved to add to that
clause the words, "for the payment of said debts, and for the
defraying the expenses that shall be incurred for the common defence
and general welfare." This was regarded by the Convention as
unnecessary, and was therefore not adopted.[239] But the provision
reported by the committee of detail, which was intended as a
qualification of the revenue power, by declaring the objects for which
taxes and duties were to be levied, had not yet been acted upon, and
on the 31st of August, this, with all other matters not disposed of,
was referred to a new grand committee, who, on the 4th of September,
introduced an amendment to the revenue clause, which made it read as
follows:--"The legislature shall have power to lay and collect taxes,
duties, imposts, and excises, to pay the debts, and provide for the
common defence and general welfare of the United States." This
amendment was unanimously adopted;[240] and when the Constitution was
revised, at the close of the proceedings, the declaration which made
the debts and engagements of the Confederation obligatory upon the new
Congress, was separated from the context of the revenue clause, and
placed by itself in the _sixth_ article.

There is one other restraint upon the revenue, as well as upon the
commercial power, the history of which now demands our inquiries. But
in order to understand it correctly, it will be necessary for the
reader to recur to the position in which the revenue and commercial
powers were left by the sectional compromises described in the last
chapter. The struggle between the Northern and the Southern States
concerning the limitations of those powers turned, as we have seen, on
certain restrictions desired by the latter. They wished to have
exports excepted out of the revenue power; they wished to have a vote
of two thirds made necessary to the passage of any commercial
regulation; and three of them wished to have the slave-trade excepted
from both the revenue and the commercial powers. We have seen that the
result of the sectional compromises was to leave the commercial and
revenue powers unlimited, excepting by the saving in relation to the
slave-trade; that they left the revenue power unlimited, excepting by
the restriction concerning exports and a capitation tax; and that the
commercial power was to be exercised, like other legislative powers,
by a majority in Congress. General commercial and revenue powers,
then, without other restrictions than these, would enable Congress to
collect their revenues where they should see fit, without obliging
them to adopt the old ports of entry of the States, or to consider the
place where a cargo was to be unladen. They might have custom-houses
in only one place in each State, or in only such States as they might
choose to select, and might thus compel vessels bound from or to all
the other States to clear or enter at those places. But, on the other
hand, a constitutional provision which would require them to establish
custom-houses at the old ports of entry of the States, without leaving
them at liberty to establish other ports of entry, or to compel
vessels to receive on board revenue officers before they had reached
their ports of destination, would create opportunities and facilities
for smuggling.

It appears that the people of Maryland felt some apprehension that an
unrestricted power to make commercial and fiscal regulations might
result in compelling vessels bound to or from Baltimore to enter or
clear at Norfolk, or some other port in Virginia. The delegates of
Maryland accordingly introduced a proposition, which embraced two
ideas; first, that Congress shall not oblige vessels, domestic or
foreign, to enter or pay duties or imposts in any other State than in
that to which they may be bound, or to clear from any other State than
that in which their cargoes may be laden; secondly, that Congress
shall not induce vessels to enter or clear in one State in preference
to another, by any privileges or immunities.[241] This proposition
became the basis of that clause of the Constitution, which declares
that "no preference shall be given by any regulation of commerce or
revenue to the ports of one State over those of another; nor shall
vessels bound to, or from, one State, be obliged to enter, clear, or
pay duties in another."[242]

It was while this subject of the equal operation of the commercial and
revenue powers upon the different States was under consideration, that
the further provision was devised and incorporated into the
Constitution, which requires all duties, imposts, and excises to be
uniform throughout the United States. This clause, in the final
revision of the instrument, was annexed to the power of taxation.[243]

The commercial power, besides being subjected to the restrictions
which have been thus described, was extended to a subject not embraced
in it by the report of the committee of detail. They had included in
it "commerce with foreign nations, and among the several
States";--meaning, by the former term, not to include the Indian
tribes upon this continent, but all other communities, civilized and
barbarian, foreign to the people of the United States. By the system
which had always prevailed in the relations of Europeans and their
descendants with the Indians of America, those tribes had constantly
been regarded as distinct and independent political communities,
retaining their original rights, and among them the undisputed
possession of the soil; subject to the exclusive right of the European
nation making the first discovery of their territory to purchase it.
This principle, incorporated into the public law of Europe at the time
of the discovery and settlement of the New World, and practised by
general consent of the nations of Europe, was the basis of all the
relations maintained with the Indian tribes by the imperial
government, in the time of our colonial state, by our Revolutionary
Congress, and by the United States under the Confederation. It
recognized the Indian tribes as nations, but as nations peculiarly
situated, inasmuch as their intercourse and their power to dispose of
their landed possessions were restricted to the first discoverers of
their territory. This peculiar condition drew after it two
consequences;--first, that, as they were distinct nations, they could
not be treated as part of the subjects of any one of the States, or of
the United States; and secondly, that, as their intercourse and trade
were subjected to restraint, that restraint would be most
appropriately exercised by the federal power. So general was the
acquiescence in these necessities imposed by the principle of public
law which defined the condition of the Indian tribes, that during the
whole of the thirteen years which elapsed from the commencement of the
Revolution to the adoption of the Constitution, the regulation of
intercourse with those tribes was left to the federal authority. It
was tacitly assumed by the Revolutionary Congress, and it was
expressly conferred by the Articles of Confederation.

The provision of the Confederation on this subject gave to the United
States the exclusive right and power "of regulating the trade and
managing all affairs with the Indians not members of any of the
States, provided that the legislative right of any State within its
own limits be not infringed or violated." The exception of such
Indians as were members of any State, referred to those broken
members of tribes who had lost their nationality, and had become
absorbed as individuals into the political community of the whites.
With all other Indians, remaining as distinct and self-governing
communities, trade and intercourse were subject to the regulation of
Congress; while at the same time each State retained to itself the
regulation of its commerce with all other nations. The broad
distinction thus early established, and thus perpetuated in the
Confederation, between commerce with the Indian tribes, and commerce
with "foreign nations," explains the origin and introduction of a
special provision for the former, as distinguished from the latter, in
the Constitution of the United States.

For although there might have been some reason to contend that
commerce with "foreign nations"--if the grant of the commercial power
had not expressly embraced the Indian tribes--would have extended to
those tribes, as nations foreign to the United States, yet the entire
history of the country, and the peculiarity of the intercourse needful
for their security, made it eminently expedient that there should be a
distinct recognition of the Indian communities, in order that the
power of Congress to regulate all commerce with them might not only be
as ample as that relating to foreign nations, but might stand upon a
distinct assertion of their condition as _tribes_. Accordingly, Mr.
Madison introduced the separate proposition "to regulate affairs with
the Indians, as well within as without the limits of the United
States";[244] and the committee to whom it was referred gave effect to
it, by adding the words, "and with the Indian tribes," to the end of
the clause containing the grant of the commercial power.[245]

The remaining powers of Congress may be considered in the order in
which they were acted upon by the Convention. The powers to establish
a uniform rule of naturalization, to coin money and regulate the value
thereof and of foreign coin, and fix the standard of weights and
measures, were adopted without discussion and with entire unanimity,
as they had been proposed in the draft prepared by the committee of
detail. The power to establish post-offices was extended to embrace
post-roads.[246]

These were succeeded by the subject of borrowing money and emitting
bills on the credit of the United States; a power that was proposed to
be given by the committee of detail, while they at the same time
proposed to restrain the States from emitting bills of credit. I have
not been able to discover upon what ground it was supposed to be
proper or expedient to confer a power of emitting bills of credit on
the United States, and to prohibit the States from doing the same
thing. That the same thing was in contemplation in the two provisions
reported by the committee, sufficiently appears from the debates and
from the history of the times. The object of the prohibition on the
States was to prevent the issue and circulation of paper money; the
object of the proposed grant of power to the United States was to
enable the government to employ a paper currency, when it should have
occasion to do so. But the records of the discussions that have come
down to us do not disclose the reasons which may have led to the
supposition that a paper currency could be used by the United States
with any more propriety or safety than by a State. One of the
principal causes which had led to the experiment of making a national
government with power to prevent such abuses, had been the frauds and
injustice perpetrated by the States in their issues of paper money;
and there was at this very time a loud and general outcry against the
conduct of the people of Rhode Island, who had kept themselves aloof
from the national Convention, for the express purpose, among others,
of retaining to themselves the power to issue such a currency.

It is possible that the phrase "emit bills on the credit of the United
States" might have been left in the Constitution, without any other
danger than the hazards of a doubtful construction, which would have
confined its meaning to the issuing of certificates of debt under the
power to "borrow money." But this was not the sense in which the term
"bills of credit" was generally received throughout the country, nor
the sense intended to be given to it in the clause which contained the
prohibition on the States. The well-understood meaning of the term had
reference to paper issues, intended to circulate as currency, and
bearing the public promise to pay a sum of money at a future time,
whether made or not made a legal tender in payment of debts. It would
have been of no avail, therefore, to have added a prohibition against
making such bills a legal tender. If a power to issue them should once
be seen in the Constitution, or should be suspected by the people to
be there, wrapt in the power of borrowing money, the instrument would
array against itself a formidable and probably a fatal opposition. It
was deemed wiser, therefore, even if unforeseen emergencies might in
some cases make the exercise of such a power useful, to withhold it
altogether. It was accordingly stricken out, by a vote of nine States
against two, and the authority of Congress was thus confined to
borrowing money on the credit of the United States, which appears to
have been intended to include the issuing of government notes not
transferable as currency.[247]

The clauses which authorize Congress to constitute tribunals inferior
to the Supreme Court,[248] and to make rules as to captures on land
and water,[249]--the latter comprehending the grant of the entire
prize jurisdiction,--were assented to without discussion.[250] Then
came the consideration of the criminal jurisdiction in admiralty, and
that over offences against the law of nations. The committee of
detail had authorized Congress "to declare the law and punishment of
piracies and felonies committed on the high seas, ... and of offences
against the law of nations." The expression to "declare the law," &c.
was changed to the words "define and punish," for the following
reason. Piracy is an offence defined by the law of nations, and also
by the common law of England. But in those codes a single crime only
is designated by that term.[251] It was necessary that Congress should
have the power to declare whether this definition was to be adopted,
and also to determine whether any other crimes should constitute
piracy. In the same way, the term "felony" has a particular meaning in
the common law, and it had in the laws of the different States of the
Union a somewhat various meaning. It was necessary that Congress
should have the power to adopt any definition of this term, and also
to determine what other crimes should be deemed felonies. So also
there were various offences known to the law of nations, and generally
regarded as such by civilized States. But before Congress could have
power to punish for any of those offences, it would be necessary that
they, as the legislative organ of the nation, should determine and
make known what acts were to be regarded as offences against the law
of nations; and that the power to do this should include both the
power to adopt from the code of public law offences already defined
by that code, and to extend the definition to other acts. The term
"declare" was therefore adopted expressly with a view to the
ascertaining and creating of offences, which were to be treated as
piracies and felonies committed on the high seas, and as offences
against the law of nations.[252]

The same necessity for an authority to prescribe a previous definition
of the crime of counterfeiting the securities and current coin of the
United States would seem to have been felt; and it was probably
intended to be given by the terms "to provide for the punishment of"
such counterfeiting.[253]

The power to "declare" war had been reported by the committee as a
power to "make" war. There was a very general acquiescence in the
propriety of vesting the war power in the legislature rather than the
executive; but the former expression was substituted in place of the
latter, in order, as it would seem, to signify that the legislature
alone were to determine formally the state of war, but that the
executive might be able to repel sudden attacks.[254] The clause which
enables Congress to grant "letters of marque and reprisal" was added
to the war power, at a subsequent period, on the recommendation of a
committee to whom were referred sundry propositions introduced by
Charles Pinckney, of which this was one.[255]

In addition to the war power, which would seem to involve of itself
the authority to raise all the necessary forces required by the
exigencies of a war, the committee of detail had given the separate
power "to raise armies," which the Convention enlarged by adding the
term to "support."[256] This embraced standing armies in time of
peace, and, as the clause thus amended would obviously allow, such
armies might be enlarged to any extent and continued for any time. The
nature of the government, and the liberties and the very prejudices of
the people, required that some check should be introduced, to prevent
an abuse of this power. A limitation of the number of troops that
Congress might keep up in time of peace was proposed, but it was
rejected by all the States as inexpedient and impracticable.[257]
Another check, capable of being adapted to the proper exercise of the
power itself, was to be found in an idea suggested by Mr. Mason, of
preventing a perpetual revenue.[258] The application of this principle
to the power of raising and supporting armies would furnish a salutary
limitation, by requiring the appropriations for this purpose to pass
frequently under the review of the representatives of the people,
without embarrassing the exercise of the power itself. Accordingly,
the clause now in the Constitution, which restricts the appropriation
of money to the support of the army to a term not longer than two
years, was added to the power of raising and supporting armies.[259]

Authority "to provide and maintain a navy" was unanimously agreed as
the most convenient definition of the power, and to this was added,
from the Articles of Confederation, the power "to make rules for the
government and regulation of the land and naval forces."[260]

The next subject which required consideration was the power of the
general government over the militia of the States. There were few
subjects dealt with by the framers of the Constitution exceeding this
in magnitude, in importance, and delicacy. It involved not only the
relations of the general government to the States and the people of
the States, but the question whether and how far the whole effective
force of the nation could be employed for national purposes and
directed to the accomplishment of objects of national concern. The
mode in which this question should be settled would determine, in a
great degree, and for all time, whether the national power was to
depend, for the discharge of its various duties in peace and in war,
upon standing armies, or whether it could also employ and rely upon
that great reservation of force that exists in all countries
accustomed to enroll and train their private citizens to the use of
arms.

The American Revolution had displayed nothing more conspicuously than
the fact, that, while the militia of the States were in general
neither deficient in personal courage, nor incapable of being made
soldiers, they were inefficient and unreliable as troops. One of the
principal reasons for this was, that, when called into the field in
the service of the federal power, the different corps of the several
States looked up to their own local government as their sovereign; and
being amenable to no law but that of their own State, they were
frequently indisposed to recognize any other authority. But a far more
powerful cause of their inefficiency lay in the fact that they were
not disciplined or organized or armed upon any uniform system. A
regiment of militia drawn from New Hampshire was a very different body
from one drawn from New York, or Pennsylvania, or New Jersey, or South
Carolina. The consequence was, that when these different forces were
brought to act together, there were often found in the same campaign,
and sometimes in the same engagement, portions of them in a very
respectable state of discipline and equipment, and others in no state
of discipline or equipment at all.

The necessity, therefore, for a uniform system of disciplining and
arming the militia was a thing well ascertained and understood, at the
time of the formation of the Constitution. But the control of this
whole subject was a part of the sovereignty of each State, not likely
to be surrendered without great jealousy and distrust; and one of the
most delicate of the tasks imposed upon the Convention was that of
determining how far and for what purposes the people of the several
States should be asked to confer upon the general government this very
important part of their political sovereignty. One thing, however, was
clear;--that, if the general government was to be charged with the
duty of undertaking the common defence against an external enemy, or
of suppressing insurrection, or of protecting the republican character
of the State constitutions, it must either maintain at all times a
regular army suitable for any such emergency, or it must have some
power to employ the militia. The latter, when compared with the
resource of standing armies, is, as was said of the institution of
chivalry, "the cheap defence of nations"; and although no nation has
found, or will be likely to find, it sufficient, without the
maintenance of some regular troops, the nature of the liberties
inherent in the construction of the American governments, and the
whole current of the feelings of the American people, would lead them
to the adoption of a policy that might restrain, rather than
encourage, the growth of a permanent army. So far, therefore, it
seemed manifest, from the duties which were to be imposed on the
government of the Union, that it must have a power to employ the
militia of the States; and this would of necessity draw after it, if
it was to be capable of a beneficial exercise, the power to regulate,
to some extent, their organization, armament, and discipline.

But the first draft of the Constitution, prepared by the committee of
detail, contained no express power on this subject, excepting "to
call forth the aid of the militia in order to execute the laws of the
Union, enforce treaties, suppress insurrections, and repel
invasions."[261] Possibly it might have been contended, after the
Constitution had gone into operation, that the general power to make
all laws necessary and proper for the execution of the powers
specially enumerated, would enable Congress to prescribe regulations
of the force which they were authorized to employ, since the authority
to employ would seem to involve the right to have the force kept in a
fit state to be employed. But this would have been a remote
implication of power, too hazardous to be trusted; and it at once
occurred to one of the wisest and most sagacious of the statesmen
composing the Convention, who, though he never signed the
Constitution, exercised a great and salutary influence in its
preparation,--Mr. Mason of Virginia,--that an express and unequivocal
power of regulating the militia must be conferred. He stated the
obvious truth, that, if the disciplining of the militia were left in
the hands of the States, they never would concur in any one system;
and as it might be difficult to persuade them to give up their power
over the whole, he was at first disposed to adopt the plan of placing
a part of the militia under the control of the general government, as
a select force.[262] But he, as well as others, became satisfied that
this plan would not produce a uniformity of discipline throughout the
entire mass of the militia. The question, therefore, resolved itself
practically into this,--what should be the nature and extent of the
control to be given to the general government, assuming that its
control was to be applicable to the entire militia of the several
States. This important question, involved in several distinct
propositions, was referred to a grand committee of the States.[263] It
was by them that the plan was digested and arranged by which Congress
now has the power to provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be employed in
the service of the United States, reserving to the States the
appointment of the officers, and the authority of training the militia
according to the discipline prescribed by Congress;[264]--a provision
that was adopted by a large majority of the States. The clause
reported by the committee of detail was also adopted, by which
Congress is enabled to provide for calling forth the militia to
execute the laws of the Union, suppress insurrections, and repel
invasions.[265]

The next subject in the order of the report made by the committee of
detail was that general clause now found at the close of the
enumeration of the express powers of Congress, which authorizes them
"to make all laws which may be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this
Constitution in the government of the United States, or in any
department or officer thereof."[266] Nothing occurred in the
proceedings on this provision which throws any particular light upon
its meaning, excepting a proposition to include in it, expressly, the
power to "establish all offices" necessary to execute the powers of
the Constitution; an addition which was not made, because it was
considered to be already implied in the terms of the clause.[267]

The subjects of patents for useful inventions and of copyrights of
authors appear to have been brought forward by Mr. Charles Pinckney.
They gave rise to no discussion in the Convention, but were considered
in a grand committee, with other matters, and there is no account of
the views which they took of this interesting branch of the powers of
Congress. We know, however, historically, that these were powers not
only possessed by all the States, but exercised by some of them,
before the Constitution of the United States was formed. Some of the
States had general copyright laws, not unlike those which have since
been enacted by Congress;[268] but patents for useful inventions were
granted by special acts of legislation in each case. When the power to
legislate on these subjects was surrendered by the States to the
general government, it was surrendered as a power to legislate for the
purpose of securing a natural right to the fruits of mental labor.
This was the view of it taken in the previous legislation of the
States, by which the power conferred upon Congress must of course, to
a large extent, be construed.

Such are the legislative powers of Congress, which are to be exercised
within the States themselves;--and it is at once obvious, that they
constitute a government of limited authority. The question arises,
then, whether that authority is anywhere full and complete, embracing
all the powers of government and extending to all the objects of which
it can take cognizance. It has already been seen, that, when provision
was made for the future acquisition of a seat of government, exclusive
legislation over the district that might be acquired for that purpose
was conferred upon Congress.[269] In the same clause, the like
authority was given over all places that might be purchased, with the
consent of any State legislature, for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings.[270] All
the other places to which the authority of the United States can
extend are included under the term "territories," which are out of the
limits and jurisdiction of any State. As this is a subject which is
intimately connected with the power to admit new States into the
Union, we are now to consider the origin and history of the authority
given to Congress for that purpose.

In examining the powers of Congress contained in the first article of
the Constitution, the reader will not find any power to admit new
States into the Union; and while he will find there the full
legislative authority to govern the District of Columbia and certain
other places ceded to the United States for particular purposes, of
which I have already spoken, he will find no such authority there
conferred in relation to the territory which had become the property
of the United States by the cession of certain of the States before
and after the adoption of the Articles of Confederation. If this power
of legislation exists as to the territories, it is to be looked for in
another connection; and although it is not the special province of
this work to discuss questions of construction, it is proper here to
state the history of those portions of the Constitution which relate
to this branch of the authority of Congress.

In the first volume of this work, I have given an account of the
origin of the Northwestern Territory, of its relations to the Union,
and of the mode in which the federal Congress had dealt with it down
to the time when the national Convention was assembled.[271] From the
sources there referred to, and from others to which reference will now
be made, it may be convenient to recapitulate what had been done or
attempted by the Congress of the Confederation.

It appears that during the preparation of the Articles of
Confederation an effort was made to include in them a grant of express
power to the United States in Congress to ascertain and fix the
western boundaries of the existing States, and to lay out the
territory beyond the boundaries that were to be thus ascertained into
new States. This effort totally failed. It was founded upon the idea
that the land beyond the rightful boundaries of the old States was
already, or would by the proposed grant of power to ascertain those
boundaries become, the common property of the Union. But the States,
which then claimed an uncertain extension westward from their actual
settlements, were not prepared for such an admission, or such a grant;
and accordingly the Articles of Confederation, which were issued in
1777 and took effect in 1781, contained no express power to deal with
landed property of the United States, and no provision which could
safely be construed into a power to form and admit new States out of
then unoccupied lands anywhere upon the continent. Still, the Articles
were successively ratified by some of the States, and finally became
established, in the express contemplation that the United States
should be made the proprietor of such lands, by the cession of the
States which claimed to hold them. In order to procure such cessions,
as the means of inducing a unanimous accession to the confederacy, the
Congress in 1780 passed a resolve, in which they promised to dispose
of the lands for the common benefit of the United States, to settle
and form them into distinct republican States, and to admit such
States into the Union on an equal footing with its present
members.[272] The great cession by Virginia, made in 1784, was
immediately followed by another resolve, for the regulation of the
territory thus acquired.[273]

This resolve, as originally reported by Mr. Jefferson, embraced a plan
for the organization of temporary governments in certain States which
it undertook to describe and lay out in the Western territory, and for
the admission of those States into the Union. In one particular, also,
it undertook, as it was first reported, to regulate the personal
rights or relations of the settlers, by providing that, after the year
1800, slavery, or involuntary servitude except for crime, should not
exist in any of the States to be formed in the territory. But this
clause was stricken out before the resolve was passed, and its removal
left the measure a mere provision for the political organization of
temporary and permanent governments of States, and for the admission
of such States into the Union. So far as personal rights or relations
were involved in it, the settlers were authorized to adopt, for a
temporary government, the constitution and laws of any one of the
original States, but the laws were to be subject to alteration by
their ordinary legislature. The conditions of their admission into the
Union referred solely to their political relations to the United
States, or to the rights of the latter as the proprietor of the
ungranted lands.

In about a year from the passage of this measure introduced by Mr.
Jefferson, and after he had gone on his mission to France, an effort
was made by Mr. King to legislate on the subject of the immediate and
perpetual exclusion of slavery from the States described in Mr.
Jefferson's resolve. Mr. King's proposition was referred to a
committee, but it does not appear that it was ever acted upon.[274]
The cessions of Massachusetts and Connecticut followed, in 1785 and
1786. Within two years from this period, such had been the rapidity of
emigration and settlement, and so inconvenient had become the plan of
1784, that Congress felt obliged to legislate anew on the whole
subject of the Northwestern Territory, and proceeded to frame and
adopt the Ordinance of July 13, 1787. This instrument not only
undertook to make political organizations, and to provide for the
admission of new States into the Union, but it also dealt directly
with the rights of individuals. Its exclusion of slavery from the
territory is well known as one of its fundamental articles, not
subject to alteration by the people of the territory, or their
legislature.[275]

The power of Congress to deal with the admission of new States was not
only denied at the time, but its alleged want of such power was one of
the principal reasons which were said to require a revision of the
federal system. It does not appear that the subject of legislation on
the rights or condition of persons attracted particular attention; nor
do we know, from anything that has come down to us, that the clause
relating to slavery was stricken from Mr. Jefferson's resolve in
1784, upon the special ground of a want of constitutional power to
legislate on such a question. But Mr. Jefferson has himself informed
us, that a majority of the States in Congress would not consent to
construe the Articles of Confederation as if they had reserved to nine
States in Congress power to admit new States into the Union from the
territorial possessions of the United States; and that they so shaped
his measure, as to leave the question of power and the rule for voting
to be determined when a new State formed in the territory should apply
for admission.[276] It seems, also, that although the power to frame
territorial governments, to organize States and admit them into the
Union, was assumed in the Ordinance of 1787, the Congress of the
Confederation never acted upon the power so far as to admit a
State.[277] Finally, we are told by Mr. Madison, in the Federalist,
that all that had been done in the Ordinance by the Congress of the
Confederation, including the sale of lands, the organization of
governments, and the prescribing of conditions of admission into the
Union, had been done "without the least color of constitutional
authority";[278]--an assertion which, whether justifiable or not,
shows that the power of legislation was by some persons strenuously
denied.[279]

With regard to the powers of Congress, under the Confederation, to
erect new States in the Northwestern Territory, and to admit them into
the Union, the truth seems to be this. There is no part of the
Articles of Confederation which can be said to confer such a power;
and, in fact, when the Articles were framed, the Union, although it
then existed by an imperfect bond, not only possessed no such
territory, but it did not then appear likely to become the proprietor
of lands, claimed by certain of the States as the successors of the
crown of Great Britain, and lying within what they regarded as their
original chartered limits. The refusal of those States to allow the
United States to determine their boundaries, made it unnecessary to
provide for the exercise of authority over a public domain. But in the
interval between the preparation of the Articles and their final
ratification, a great change took place in the position of the Union.
It was found that certain of the smaller States would not become
parties to the Confederation, if the great States were to persist in
their refusal to cede to the Union their claims to the unoccupied
Western lands; and although the States which thus held themselves
back, for a long time, from the ratification of the Articles, finally
adopted them, before the cessions of Western territory were made,
they did so upon the most solemn assertion that they expected and
confided in a future relinquishment of their claims by the other
States. Those just expectations were fulfilled. By the acts of
cession, and by the proceedings of Congress which invited them, the
United States not only became the proprietors of a great public
domain, but they received that domain upon the express trust that its
lands should be disposed of for the common benefit, and that the
country should be settled and formed into republican States, and that
those States should be admitted into the Union. In these conveyances,
made and accepted upon these trusts, there was a unanimous
acquiescence by the States.

While, therefore, in the formal instrument under which the Congress
was organized, and by which the United States became a corporate body,
there was no article which looked to the admission of new States into
that body, formed out of territory thus acquired, and no power was
conferred to dispose of such lands or govern such territory, there
were, outside of that instrument, and closely collateral to it,
certain great compacts between the States, arising out of deeds of
cession and the formal guaranties by which those cessions had been
invited, and with which they had been received, which proceeded as if
there were a competent authority in the United States in Congress to
provide for the formation of the States contemplated, and for their
admission into the Union. Strictly speaking, however, there was no
such authority. It was to be gathered, if at all, from public acts
and general acquiescence, and could not be found in the instrument
that formed the charter and established the powers of the Congress. It
was an authority, therefore, liable to be doubted and denied; it was
one for the exercise of which the Congress was neither well fitted nor
well situated; and it was moreover so delicate, so extensive, and so
different from all the other powers and duties of the government, as
to make it eminently necessary to have it expressly stated and
conferred in the instrument under which all the other functions of the
government were to be exercised.[280]

Such was the state of things at the period of the formation of the
Constitution; and as we are to look for the germ of every power
embraced in that instrument in some stage of the proceedings which
took place in the course of its preparation, it is important at once
to resort to the first suggestion of any authority over these
subjects. In doing so, we are to remember that the United States had
accepted cessions of the Northwestern Territory, impressed with two
distinct trusts: first, that the country should be settled and formed
into distinct republican States, which should be admitted into the
Union; secondly, that the lands should be disposed of for the common
benefit of all the States.[281]

Accordingly, we find in the plan of government presented by Governor
Randolph at the opening of the Convention, a resolution declaring
"that provision ought to be made for the admission of States lawfully
arising within the limits of the United States, whether from a
voluntary junction of government and territory or otherwise, with the
consent of a number of voices in the national legislature less than
the whole."[282] This resolution remained the same in phraseology and
in purpose through all the stages to which the several propositions
that formed the outline of the new government were subjected, down to
the time when they were sent to the committee of detail for the
purpose of having the Constitution drawn out. Looking to the manifest
want of power in the Confederation to admit new States into the
Union; to the probability that Vermont, Kentucky, Tennessee (then
called Franklin), and Maine,--none of which were embraced in any
cessions that had then been made to the United States,--might become
separate States; and to the prospective legislation of the Ordinance
of 1787 concerning the admission of States that were to be formed in
the territory northwest of the Ohio, which had been ceded to the
Union;--it seems quite certain that the purpose of the resolution was
to supply a power to admit new States, whether formed from the
territory of one of the existing States, or from territory that had
become the exclusive property of the United States. The resolution
contained, however, no positive restriction, which would require the
assent of any existing State to the separation of a part of its
territory; but as the States to be admitted were to be those "lawfully
arising," it is apparent that the original intention was that no
present State should be dismembered without its consent. But in order
to make this the more certain, the committee of detail, in the article
in which they carried out the resolution, gave effect to its
provisions in these words:--"New States lawfully constituted or
established within the limits of the United States may be admitted, by
the legislature, into this government; but to such admission the
consent of two thirds of the members present in each house shall be
necessary. If a new State shall arise within the limits of any of the
present States, the consent of the legislatures of such States shall
be also necessary to its admission. If the admission be consented to,
the new States shall be admitted on the same terms with the original
States. But the legislature may make conditions with the new States
concerning the public debt which shall be then subsisting."[283]

In the first draft of the Constitution, therefore, there was contained
a qualified power to admit new States, whether arising within the
limits of any of the old States, or within the territory of the United
States. But in this proposition there was a great omission; for
although the States to be admitted were to be those lawfully arising,
and such a State might be formed out of the territory of an existing
State by the legislative power of the latter, yet it was not
ascertained how a State was "lawfully to arise" in the territory of
the United States. Nor was there, at present, any provision introduced
into the Constitution by which Congress could dispose of the soil of
the national domain. These as well as other omissions at once
attracted the attention of Mr. Madison, who, as we have seen, held the
opinion that the entire legislation of the old Congress in reference
to the Northwestern Territory was without constitutional authority.
Before the article which embraced the admission of new States was
reached, he moved the following among other powers:[284] "to dispose
of the unappropriated lands of the United States"; and "to institute
temporary governments for new States arising therein." These
propositions were referred to the committee of detail, but before any
action upon them, the article previously reported by that committee
was reached and taken up, and there ensued upon it a course of
proceeding which resulted in the provisions that now stand in the
third section of the fourth article of the Constitution.[285]

The first alteration made in the article reported by the committee was
to strike out the clause which declared that the new States should be
admitted on an equal footing with the old ones. The reason assigned
for this change was, that the legislature ought not to be tied down to
such an admission, as it might throw the balance of power into the
Western States.[286] The next modification was to strike out the
clause which required a vote of two thirds of the members present for
the admission of a State.[287] This left the proposed article a mere
grant of power to admit new States, requiring the consent of the
legislature of any State that might be dismembered, as well as the
consent of Congress. An earnest effort was then made, by some of the
members from the smaller States, to remove this restriction, upon the
ground that the United States, by the treaty of peace with England,
had become the proprietor of the crown lands which were situated
within the limits claimed by some of the States that would be likely
to be divided; and it was urged, that to require the consent of
Virginia, North Carolina, and Georgia to the separation of their
Western settlements, might give those States an improper control over
the title of the United States to the vacant lands lying within the
jurisdiction claimed by those States, and would enable them to retain
the jurisdiction unjustly, against the wish of the settlers. But a
large majority of the States refused to concede a power to dismember a
State, without its consent, by taking away even its claims to
jurisdiction. It was considered by them, that as to municipal
jurisdiction over settlements already made within limits claimed by
Virginia, North Carolina, and Georgia, the Constitution ought not to
interfere, without the joint consent of the settlers and the State
exercising such jurisdiction; that if the title to lands unoccupied at
the treaty of peace, lying within the originally chartered limits of
any of the States, was in dispute between them and the United States,
that controversy would be within the reach of the judicial power, as
one between a State and the United States, or it might be terminated
by a voluntary cession of the State claim to the Union.[288]

The next step taken in the settlement of this subject was to provide
for the case of Vermont, which was then in the exercise of an
independent sovereignty, although it was within the asserted limits of
New York. It was thought proper, in this particular case, not to make
the State of Vermont, already formed, dependent for her admission
into the Union on the consent of New York. For this reason, the words
"hereafter formed" were inserted in the article under consideration,
and the word "jurisdiction" was substituted for "limits."[289] Thus
modified, the article stood as follows:--

"New States may be admitted by the legislature into the Union; but no
new State shall be hereafter formed or erected within the jurisdiction
of any of the present States, without the consent of the legislature
of such State, as well as of the general legislature."

This provision was quite unsatisfactory to the minority. They wished
to have the Constitution assert a distinct power in Congress to erect
new States within, as well as without, the territory claimed by any of
the States, and to admit such new States into the Union; and they also
wished for a saving clause to protect the title of the United States
to vacant lands ceded by the treaty of peace. Luther Martin
accordingly moved a substitute article, embracing these two objects,
but it was rejected.[290] A clause was then added to the article
pending, which declared that no State should be formed by the junction
of two or more States, or parts of States, without the consent of the
States concerned, as well as the consent of Congress. This completed
the substance of what is now the first clause of the third section of
the fourth article of the Constitution.[291]

Mr. Carroll thereupon renewed the effort to introduce a clause saving
the rights of the United States to vacant lands; and after some
modification, he finally submitted it in these words: "Nothing in this
Constitution shall be construed to alter the claims of the United
States, or of the individual States, to the Western territory; but all
such claims shall be examined into, and decided upon, by the Supreme
Court of the United States." Before any vote was taken upon this
proposition, however, Gouverneur Morris moved to postpone it, and
brought forward as a substitute the very provision which now forms the
second clause of the third section of article fourth, which he
presented as follows: "The legislature shall have power to dispose of,
and make all needful rules and regulations respecting, the territory
or other property belonging to the United States; and nothing in this
Constitution contained shall be so construed as to prejudice any
claims, either of the United States or of any particular State." This
provision was adopted, without any other dissenting vote than that of
the State of Maryland.[292]

The purpose of this provision, as it existed at the time in the minds
of the framers of the Constitution, must be gathered from the whole
course of their proceedings with respect to it, and from the
surrounding facts, which exhibit what was then, and what was
afterwards likely to become, the situation of the United States in
reference to the acquisition of territory and the admission of new
States. There were, then, at the time when this provision was made,
four classes of cases in the contemplation of the Convention. The
first consisted of the Northwestern Territory, in which the title to
the soil and the political jurisdiction were already vested in the
United States. The second embraced the case of Vermont, which was then
exercising an independent jurisdiction adversely to the State of New
York, and the case of Kentucky, then a district under the jurisdiction
of Virginia; in both of which the United States neither claimed nor
sought to acquire either the title to the vacant lands or the rights
of political sovereignty, but which would both require to be received
as new and separate States, the former without the consent of New
York, the latter with the consent of Virginia. The third class
comprehended the cessions which the United States in Congress were
then endeavoring to obtain from the States of North Carolina, South
Carolina, and Georgia, and in which were afterwards established the
States of Tennessee, Mississippi, and Alabama.[293] These cessions, as
it then appeared, might or might not all be made. If made, the title
of the United States to the unoccupied lands would be complete,
resting both upon the cessions and upon the treaty of peace with
England; and the political jurisdiction over the existing settlements,
as well as over the whole territory, would be transferred with the
cessions, subject to any conditions which the ceding States might
annex to their grants. If the cessions should not be made, the claims
of the United States to the unoccupied lands would stand upon the
treaty of peace, and would require to be saved by some clause in the
Constitution which should signify that they were not surrendered;
while the claims of the respective States would require to be
protected in like manner.

The reader will now be prepared to understand the following
explanation of the third section of the fourth article of the
Constitution. First, with reference to the Northwestern Territory, the
soil and jurisdiction of which was already completely vested in the
United States, it was necessary that the Constitution should confer
upon Congress power to exercise the political jurisdiction of the
United States, power to dispose of the soil, and power to admit new
States that might be formed there into the Union. Secondly, with
reference to such cases as that of Vermont, it was necessary that
there should be a power to admit new States into the Union without
requiring the assent of any other State, when such new States were not
formed within the actual jurisdiction of any other State. Thirdly,
with reference to such cases as that of Kentucky, which would be
formed within the actual jurisdiction of another State, it was
necessary that the power to admit should be qualified by the condition
of the consent of that State. Fourthly, with reference to such
cessions as were expected to be made by North Carolina, South
Carolina, and Georgia, it was necessary to provide the power of
political government, the power to admit into the Union, and the power
to dispose of the soil, if the cessions should be made; and at the
same time to save the claims of the United States and of the
respective States as they then stood, if the cessions anticipated
should not be made. None of these cases, however, were specifically
mentioned in the Constitution, but general provisions were made, which
were adapted to meet the several aspects of these cases. From the
generality of these provisions, it is held by some that the clause
which relates to "the territory or other property of the United
States," was intended to be applied to all cessions of territory that
might ever be made to the United States, as well as to those which had
been made, or which were then specially anticipated; while others give
to the clause a much narrower application.[294]

There now remain to be considered the restraints imposed upon the
exercise of the powers of Congress, both within the States and in all
other places; both where the authority of the United States is limited
to certain special objects, and where it is unlimited and universal,
excepting so far as it is narrowed by these constitutional restraints.
Some of them I have already described, in tracing the manner in which
they were introduced into the Constitution. We have seen how far the
commercial and revenue powers became limited in respect to the
slave-trade, to taxes on exports, to preferences between the ports of
different States, and to the levying of capitation or other direct
taxes. These restrictions were applicable to these special powers. But
others were introduced, which apply to the exercise of all the powers
of Congress, and are in the nature of limitations upon its general
authority as a government.

One of these is embraced in the provision, "that the privilege of the
writ of habeas corpus shall not be suspended, unless when, in cases of
rebellion or invasion, the public safety may require it."[295] The
common law of England, which recognizes the right to the writ of
habeas corpus for the purpose of delivery from illegal imprisonment
or restraint, was the law of each of the American States; and it
appears from the proceedings of the Convention to have been the
purpose of this provision to recognize this right, in the relations of
the people of the States to the general government, and to secure and
regulate it. The choice lay between a declaration of the existence of
the right, making it inviolable and absolute, under all circumstances,
and a recognition of its existence by a provision which would admit of
its being suspended in certain emergencies. The latter course was
adopted, although three of the States recorded their votes against the
exception of cases of rebellion or invasion.[296]

The prohibition upon Congress to pass bills of attainder, or _ex post
facto_ laws, came into the Constitution at a late period, and while
the first draft of it was under consideration. Bills of attainder, in
the jurisprudence of the common law, are acts of legislation
inflicting punishment without a judicial trial. The proposal to
prohibit them was received in the Convention with unanimous assent.
With regard to the other class of legislative acts, described as "_ex
post facto_ laws," there was some difference of opinion, in
consequence probably of different views of the extent of the term. In
the common law, this expression included only, then and since, laws
which punish as crimes acts which were not punishable as crimes when
they were committed. Laws of a civil nature, retrospective in their
operation upon the civil rights and relations of parties, were not
embraced by this term, according to the definition of English jurists.
But it is manifest from what was said by different members, that, at
the time when the vote was taken which introduced this clause into the
Constitution, the expression "_ex post facto_ laws" was taken in its
widest sense, embracing all laws retrospective in their operation. It
was objected, therefore, that the prohibition was unnecessary, since,
upon the first principles of legislation, such laws are void of
themselves, without any constitutional declaration that they are so.
But experience had proved that, whatever might be the principles of
civilians respecting such laws, the State legislatures had passed
them, and they had been acted on. A large majority of the Convention
determined, therefore, to place this restraint upon the national
legislature, and at the time of the vote I think it evident that all
retrospective laws, civil as well as criminal, were understood to be
included.[297] But when the same restraint came afterwards to be
imposed upon the State legislatures, the attention of the assembly was
drawn to the distinction between criminal laws and laws relating to
civil interests. In order to reach and control retrospective laws
operating upon the civil rights of parties, when passed by a State, a
special description was employed to designate them, as "laws impairing
the obligation of contracts," and the term "_ex post facto_ laws" was
thus confined to laws creating and punishing criminal offences after
the acts had been committed.[298] What is now the settled
construction of this term, therefore, is in accordance with the sense
in which it was finally intended to be used by the framers of the
Constitution before the instrument passed from their hands.

The committee of detail had reported in their draft of the
Constitution a clause which restrained the United States from granting
any title of nobility. The Convention, for the purpose of preserving
all officers of the United States independent of external influence,
added to this a provision that no person holding an office of profit
or trust under the United States shall, without the consent of
Congress, accept of any present, emolument, office, or title, of any
kind whatever, from any king, prince, or foreign state.[299]

In addition to the special powers conferred by the Constitution upon
the national government, it has imposed certain restraints on the
political power of the States, which qualify and diminish what would
otherwise be the unlimited sovereignty of each of them. These
restraints are of two classes;--a part of them being designed to
remove all obstructions that might be placed by State legislation or
action in the way of the appropriate exercise of the powers vested in
the United States, and a part of them being intended to assimilate the
nature of the State governments to that of the Union, by the
application of certain maxims or rules of public policy. These
restraints may now be briefly examined, with reference to this
classification.

The idea of imposing special restrictions upon the power of the
separate States was not expressly embraced in the plan of government
described by the resolutions on which the committee of detail were
instructed to prepare the instrument of government. Such restrictions,
however, were not unknown to the previous theory of the Union. They
existed in the Articles of Confederation, where they had been
introduced with the same general purpose of withdrawing from the
action of the States those objects, which, by the stipulations of that
instrument, had been committed to the authority of the United States
in Congress. But the inefficacy of those provisions lay in the fact,
that they were the mere provisions of a theory. The step now proposed
to be taken was to superadd to the prohibitions themselves the
principle of their supremacy as matters of fundamental law, and to
enable the national judiciary to make that supremacy effectual.

Almost all the restraints imposed by the Articles of Confederation
upon the States could be removed or relaxed by the consent of the
Congress to the doing of what was otherwise prohibited. In the first
draught of the Constitution, the committee of detail inserted four
absolute prohibitions, which could not be removed by Congress itself.
These related to the coining of money, the granting of letters of
marque and reprisal, the making of treaties, alliances, and
confederations, and the granting of titles of nobility. All the other
restraints on the States were to be operative or inoperative,
according to the pleasure of Congress.[300] Among these were included
bills of credit; laws making other things than specie a tender in
payment of debts; the laying of imposts or duties on imports; the
keeping of troops or ships of war in time of peace; the entering into
agreements or compacts with other States, or with foreign powers; and
the engaging in war, when not invaded, or in danger of invasion before
Congress could be consulted. The enactment of attainder and _ex post
facto_ laws, and of laws impairing the obligation of contracts, was
not prohibited at all.

But when these various subjects came to be regarded more closely, it
was perceived that the list of absolute prohibitions must be
considerably enlarged. Thus the power of emitting bills of credit,
which had been the fruitful source of great evils, must either be
taken away entirely, or the contest between the friends and the
opponents of paper money would be transferred from the State
legislatures to Congress, if Congress should be authorized to sanction
the exercise of the power. Fears were entertained that an absolute
prohibition of paper money would excite the strenuous opposition of
its partisans against the Constitution; but it was thought best to
take this opportunity to crush it entirely; and accordingly the votes
of all the States but two were given to a proposition to prohibit
absolutely the issuing of bills of credit.[301] To the same class of
legislation belonged the whole of that system of laws by which the
States had made a tender of certain other things than coin legal
satisfaction of a debt. By placing this class of laws under the ban of
a strict prohibition, not to be removed by the consent of Congress in
any case, the mischiefs of which they had been a fruitful source would
be at once extinguished. This was accordingly done, by unanimous
consent.[302]

At this point, the kindred topic of the obligation of contracts
presented itself to the mind of Rufus King, suggested doubtless by a
provision in the Ordinance then recently passed by Congress for the
government of the Northwestern Territory.[303] The idea of a special
restraint on legislative power, for the purpose of rendering inviolate
the obligation of contracts, appears to have originated with Nathan
Dane, the author of that Ordinance. It was not embraced in the resolve
of 1784, reported by Mr. Jefferson, which contained the first scheme
adopted by Congress for the establishment of new States in the
Northwestern Territory; and it first appears in our national
legislation in the Ordinance of 1787. Its transfer thence into the
Constitution of the United States was a measure of obvious expediency,
and indeed of clear necessity. In the Ordinance, Congress had
provided a system of fundamental law, intended to be of perpetual
obligation, for new communities, whose legislative power was to be
moulded by certain original maxims of assumed justice and right. The
opportunity thus afforded for shaping the limits of political
sovereignty according to the requirements of a preconceived policy,
enabled the framers of the Ordinance to introduce a limitation, which
is not only peculiar to American constitutional law, but which, like
many features of our institutions, grew out of previous abuses.

In the old States of the Confederacy, from the time when they became
self-governing communities, the power of a mere majority had been
repeatedly exercised in legislation, without any regard to its effect
on the civil rights and remedies of parties to existing contracts. The
law of debtor and creditor was not only subjected to constant changes,
but the nature of the change depended in many of the States upon the
will of the debtor class, who formed the governing majority. So
pressing were the evils thus engendered, that, when the framers of the
Ordinance came to provide for the political existence of communities
whose institutions they were to dictate, they determined to impose an
effectual restraint on legislative power; and they accordingly
provided, in terms much more stringent than were afterwards employed
in the Constitution, that no law should have effect in the Territory
which should in any manner whatever interfere with or affect private
contracts or engagements previously made.[304]

The framers of the Constitution were not engaged in the same work of
creating new political societies, but they were to provide for such
surrenders by existing States of their present unquestioned
legislative authority, as the dictates of sound policy and the evils
of past experience seemed to require. When this subject was first
brought forward in the Convention, the restriction was made to embrace
all retrospective laws bearing upon contracts, which were supposed to
be included in the term "_ex post facto_ laws." It being ascertained,
however, that the latter phrase would not, in its usual acceptation,
extend to civil cases, it became necessary to consider how such cases
were to be provided for, and how far the prohibition should extend.
The provision of the Ordinance was regarded as too sweeping; no
legislature, it was said, ever did or can altogether avoid some
retrospective action upon the civil relations of parties to existing
contracts, and to require it would be extremely inconvenient. At
length, a description was found, which embodied the extent to which
the prohibition could with propriety be carried. The legislatures of
the States were restrained from passing any "law impairing the
obligation of contracts";--a provision that has been found amply
sufficient, and attended with the most salutary consequences, under
the interpretation that has been given to it.[305]

Bills of attainder and _ex post facto_ laws, which had not been
included in the prohibitions on the States by the committee of detail,
were added by the Convention to the list of positive restrictions,
which was thus completed.

In the class of conditional prohibitions, or those acts which might be
done by the States with the consent of Congress, the committee of
detail had placed the laying of "imposts or duties on imports." To
this the Convention added "exports," in order to make the restriction
applicable both to commodities carried out of and those brought into a
State. But this provision, as thus arranged, would obviously make the
commercial system extremely complex and inconvenient. On the one hand,
the power to lay duties on imports had been conferred upon the general
government, for the purposes of revenue, and to leave the States at
liberty, with the consent of Congress, to lay additional duties, would
subject the same merchandise to separate taxation by two distinct
governments. On the other hand, if the States should be deprived of
all power to lay duties on exports, they would have no means of
defraying the charges of inspecting their own productions. At the same
time, it was apparent that, under the guise of inspection laws, if
such laws were not to be subject to the revision of Congress, a State
situated on the Atlantic, with convenient seaports, could lay heavy
burdens upon the productions of other States that might be obliged to
pass through those ports to foreign markets. Again, if the States
should be deprived of all power to lay duties on imports, they could
not encourage their own manufactures; and if allowed to encourage
their own manufactures by such State legislation, it must operate not
only upon imports from foreign countries, but upon imports from other
States of the Union, which would revive all the evils that had flowed
from the want of general commercial regulations. To prevent these
various mischiefs, the Convention adopted three distinct safeguards.
They provided, first, by an exception, that the States might, without
the consent of Congress, lay such duties and imposts as "may be
absolutely necessary for executing their inspection laws"; second,
that the net produce of all duties and imposts laid by any State,
whether with or without the consent of Congress, shall be for the use
of the Treasury of the United States; third, that all such State laws,
whether passed with or without the previous consent of Congress, shall
be subject to the revision and control of Congress.[306] There is,
therefore, a twofold remedy against any oppressive exercise of the
State power to lay duties for purposes of inspection. The question
whether the particular duties exceed what is absolutely necessary for
the execution of an inspection law, may be made a judicial question;
and in addition to this, the law imposing the inspection duty is at
all times subject to the revision and control of Congress. Any
tendency to lay duties or imposts for purposes of revenue or
protection, is checked by the requirement that the net produce of all
duties or imposts laid by any State on imports or exports shall be
paid over to the United States, and such tendency may moreover be
suppressed by Congress at any time, by the exercise of its power of
revision and control.

In order to vest the supervision and control of the whole subject of
navigation in Congress, it was further provided that no State, without
the consent of Congress, shall lay any duty of tonnage. An exception,
proposed by some of the Maryland and Virginia members, with a view to
the situation of the Chesapeake Bay, illustrates the object of this
provision. They desired that the States might not be restrained from
laying duties of tonnage "for the purpose of clearing harbors and
erecting light-houses." It was perhaps capable of being contended,
that, as the regulation of commerce was already agreed to be vested in
the general government, the States were restrained by that general
provision from laying tonnage duties. The object of the special
restriction was, to make this point entirely certain; and the object
of the proposed exception was to divide the commercial power, and to
give the States a concurrent authority to regulate tonnage for a
particular purpose. But a majority of the States considered the
regulation of tonnage an essential part of the regulation of trade.
They adopted the suggestion of Mr. Madison, that the regulation of
commerce was, in its nature, indivisible, and ought to be wholly under
one authority. The exception was accordingly rejected.[307]

The same restriction, with the like qualification of the consent of
Congress, was applied to the keeping of troops or ships of war in time
of peace, entering into agreements or compacts with another State or a
foreign power, or engaging in war, unless actually invaded or in such
imminent danger as will not admit of delay.[308]

FOOTNOTES:

[232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V.
378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards
referred the subject of the militia. See _infra_.

[236] August 21. Elliot, V. 451.

[237] August 22. Ibid. 462.

[238] See the proceedings which took place, August 22, 24, and 25.
Elliot, V. 462, 463, 464, 471, 475-477.

[239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as
being unnecessary, was disagreed to"; that is, unnecessary as a
security of the _old debts_ of the United States.

[240] Ibid. 506, 507.

[241] Elliot, V. 478, 479.

[242] Constitution, Art. I. §9. See the proceedings which took place
on the proposition of the Maryland delegates. Elliot, V. 478, 479,
483, 502, 545.

[243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1.

[244] Elliot, V. 439.

[245] Ibid. 506, 507.

[246] Ibid. 434. Journal, Elliot, I. 245.

[247] See the debate, and Mr. Madison's explanation of his vote,
Elliot, V. 434, 435, and the note on the latter page.

[248] Constitution, Art. I. § 8, clause 9.

[249] Ibid., clause 11.

[250] Elliot, V. 436.

[251] That is to say, it is the same crime, committed on the high
seas, that is denominated robbery when committed on the land.

[252] Madison, Elliot, V. 436, 437.

[253] In the clause as it passed the Convention, the offence of
_counterfeiting_ was placed with the other crimes which Congress was
to "define" and "punish"; but, on the revision of the Constitution,
counterfeiting was placed in a separate clause, under the term "to
provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10.

[254] Elliot, V. 438, 439.

[255] Elliot, V. 440, 510, 511.

[256] Ibid. 442.

[257] Ibid. 443.

[258] Ibid. 440.

[259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12.

[260] Elliot, V. 443.

[261] Art. VII. § 1 of the first draft. Elliot, V. 379.

[262] Ibid. 440.

[263] Aug 18. Elliot, V. 445.

[264] Constitution, Art. I § 8, cl. 16.

[265] Art. I. § 8, cl. 15. Ibid. p. 467.

[266] Constitution, Art. I. § 8, cl. 18.

[267] Elliot, V. 447.

[268] See the statutes of Massachusetts and Connecticut, &c. cited in
Curtis on Copyright, pp. 77, 78, 79.

[269] _Ante_, Chap. IX.

[270] Elliot, V. 510, 511, 512.

[271] _Ante_, Vol. I. Book III. ch. 5, p. 291 _et seq._

[272] Resolve of October 10, 1780. Journals, VI. 325.

[273] Resolve of April 23, 1784. Journals, IX. 153.

[274] March 16, 1785. Journals, X. 79. See _ante_, Vol. I. p. 299.

[275] See the note on the authorship of the Ordinance of 1787, in the
Appendix to this volume.

[276] _Ante_, Chap. IV. p. 77, note.

[277] See the proceedings concerning Kentucky, in 1788. Journals,
XIII. 16, 32, 51, 52, 55.

[278] The Federalist, No. 38.

[279] The passage quoted from Mr. Jefferson, _ante_, p. 77, also shows
that strong doubts were felt in Congress, in 1784, respecting their
power to admit new States formed out of unoccupied territory. Indeed,
the whole of the proceedings upon Mr. Jefferson's measure of April 23,
1784, show that the powers of Congress over the territory that had
been acquired under the cession of Virginia were very variously
regarded by the different delegates. See Journals, IX. 138-156. The
State of South Carolina voted against the resolve on its final
passage, and after it had been modified to meet some of the objections
raised.

[280] I think we are to understand Mr. Madison's assertion in the
Federalist,--that what had been done by Congress in relation to the
Northwestern Territory was without constitutional authority,--to mean,
that it had been done without the authority of any proper
constitutional provision. Mr. Madison himself, being a member of
Congress in 1783, voted for the acceptance of a report, by the
adoption of which Congress settled the conditions on which the cession
of Virginia was to be received by the United States. These conditions
embraced the whole of the three fundamental points, that the territory
should be held and disposed of for the common benefit of the United
States, that it should be divided into States, and that those States
should be admitted into the Union. So that Mr. Madison was a party to
the arrangement by which Congress undertook to hold out these promises
to the States. (Journals of Congress for September 13, 1783, VIII.
355-359.) But he was not a member of Congress in 1784, when Mr.
Jefferson's measure was adopted; and although he was a member in 1787,
when the Ordinance was adopted, he was at that time in attendance upon
the national Convention, and consequently never voted upon the
Ordinance. His participation in the proceedings of the Convention, by
which the necessary power was created, shows his sense of its
necessity.

[281] See especially the cession by Virginia, of March 1, 1784.
Journals of Congress, IX. 67. Cession by Massachusetts, April 19,
1785. Journals, X. 128. Cession by Connecticut, September 13, 1786.
Journals, XI. 221. Also the resolve of Congress passed, in
anticipation of these cessions, October 10, 1780. Journals, VI. 325.

[282] Resolution 10. Madison, Elliot, V. 128.

[283] Art. XVII. of the draft prepared by the committee of detail.
Elliot, V. 381.

[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a
recommitment for the purpose of asserting in the Constitution the
right of the United States to the lands ceded by Great Britain in the
treaty of peace. New Jersey, Delaware, and Maryland alone voted for
the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_.

[291] When the Constitution was finally revised, the word "hereafter"
was left out of the first clause of the third section of article
fourth, apparently because the phraseology of the clause was
sufficient, without it, to save the case of Vermont, which was
regarded as not being within the "_jurisdiction_," although it was
within the asserted _limits_, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, title,
interest, jurisdiction, and claim" to the "territory or tract of
country" lying, within certain northern and southern limits, between
the western boundary of that State and the river Mississippi, was in
fact made and accepted in Congress, August 9-10, 1787, twenty days
before the territorial clause was finally settled in the Convention,
which took place August 30. (Journals of the Old Congress, XII.
129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the
same year, the Congress passed a resolution urging the States of North
Carolina and Georgia to cede their Western claims. This request was
not complied with until after the Constitution had gone into
operation. The cession of North Carolina was made February 25, 1790;
that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this
question. I have recently had occasion professionally to maintain that
the territorial clause is applicable to all territorial cessions made
to the United States, whether by States of the Union or by foreign
States, and that it clothes the government with a full legislative
power over such territories and their inhabitants, which is subject
only to the particular restrictions enumerated in the Constitution.
Perhaps it is needless for me to add that I entertain this opinion.
But it is rejected by others, and, in the present state of judicial
interpretation of this part of the Constitution, by the supreme
tribunal, it is not easy to determine what will finally become the
settled construction.

[295] Constitution, Art. I. § 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South
Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Constitution, Art. I. § 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was passed July 13, was published at length
in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on
the 25th of July (1787). Mr. King's motion was made August 28, and is
described by Mr. Madison as a motion "to add, in the words used in the
Ordinance of Congress establishing new States, a prohibition on the
States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452,
note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.



CHAPTER XII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE
NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON.


Among the resolutions sent to the committee, there were four which had
reference to the supremacy of the government of the United States.
They declared that it ought to consist of a supreme legislative,
executive, and judiciary;--that its laws and treaties should be the
supreme law of the several States, so far as they related to the
States or their citizens and inhabitants, and that the judiciaries of
the States should be bound by them, even against their own laws;--that
the officers of the States, as well as of the United States, should be
bound by oath to support the Articles of Union;--and that the question
of their adoption should be submitted to assemblies of representatives
to be expressly chosen by the people of each State under the
recommendation of its legislature.[309]

In order to give effect to these precise and stringent directions, the
committee of detail introduced into their draft of a constitution a
preamble; two articles asserting and providing for the supremacy of
the national government; a provision for the oath of officers; and a
declaration of the mode in which the instrument was intended to be
ratified.

The preamble of the Constitution, as originally reported by this
committee, differed materially from that subsequently framed and
adopted. It spoke in the name of the people of the States of New
Hampshire, Massachusetts, &c., who were said "to ordain, declare, and
establish this Constitution for the government of ourselves and our
posterity"; and it stated no special motives for its establishment. In
this form it was unanimously adopted on the 7th of August. But when,
at a subsequent period, the instrument was sent to another committee,
whose duty it was to revise its style and arrangement, this
phraseology was changed, and the preamble was made to speak in the
name of the people of the United States, and to declare the purposes
for which _they_ ordained and established the Constitution.[310] The
language thus employed in the preamble has justly been considered as
having an important connection with the provisions made for the
ratification of the instrument to which it was prefixed.

The articles specially designed to assert and carry out the supremacy
of the national government, as they came from the committee, embodied
the resolutions on the same subject which had passed the Convention.
The only material addition consisted in the qualification, that the
legislative acts of the United States, which were to be the supreme
law, were such as should be made in pursuance of the Constitution.
Subsequently, the article was so amended as to make the Constitution,
the laws passed in pursuance of it, and the treaties of the United
States, the supreme law of the land, binding upon all judicial
officers.[311]

It is a remarkable circumstance, that this provision was originally
proposed by a very earnest advocate of the rights of the
States,--Luther Martin. His design, however, was to supply a
substitute for a power over State legislation, which had been embraced
in the Virginia plan, and which was to be exercised through a negative
by the national legislature upon all laws of the States contravening
in their opinion the Articles of Union, or the treaties subsisting
under the authority of the Union.[312] The purpose of the substitute
was to change a legislative into a judicial power, by transferring
from the national legislature to the judiciary the right of
determining whether a State law, supposed to be in conflict with the
Constitution, laws, or treaties of the Union, should be inoperative or
valid. By extending the obligation to regard the requirements of the
national Constitution and laws to the judges of the State tribunals,
their supremacy in all the judicatures of the country was secured.
This obligation was enforced by the oath or affirmation to support
the Constitution of the United States;[313] and, as we shall see
hereafter, lest this security should fail, the final determination of
questions of this kind was drawn to the national judiciary, even when
they might have originated in a State tribunal.[314]

Closely connected in purpose with these careful provisions was the
mode in which the Constitution was to be ratified. The committee of
detail had made this the subject of certain articles in the
Constitution itself.[315] But the committee of revision afterwards
presented certain resolutions in the place of two of those articles,
which were adopted by the Convention after the Constitution had been
signed; leaving in the instrument itself nothing but the article which
determined the number of States whose adoption should be sufficient
for establishing it.[316] These resolutions pursued substantially the
mode previously agreed upon, of a transmission of the instrument to
Congress, a recommendation by the State legislatures to the people to
institute representative assemblies to consider and decide on its
adoption, and a notice of their action to Congress by each State
assembly so adopting it. The purpose of this form of proceeding, so
far as it was connected with the primary authority by which the
Constitution was to be enacted, has been already explained.[317]

What then were the meaning and scope of that supremacy which the
framers of the Constitution designed to give to the acts of the
government which they constructed?

In seeking an answer to this question, it is necessary to recur, as we
have constantly been obliged to do, to the nature of the government
which the Constitution was made to supersede. In that system, the
experiment had been tried of a union of States,--each possessed of a
complete government of its own,--which was intended to combine their
several energies for the common defence and the promotion of the
general welfare. But this combined will of distinct communities,
expressed through the action of a common agent, was wholly unable to
overcome the adverse will of any of them expressed by another and
separate agent, although the objects of the powers bestowed on the
confederacy were carefully stated and sufficiently defined in a public
compact. Thus, for example, the treaty-making power was expressly
vested in the United States in Congress assembled; but when a treaty
had been made, it depended entirely upon the separate pleasure of each
State whether it should be executed. If the State governments did not
see fit to enforce its provisions upon their own citizens, or thought
proper to act against them, there was no remedy, both because the
Congress could not legislate to control individuals, and because there
was no department clothed with authority to compel individuals to
conform their conduct to the requirements of the treaty, and to
disregard the opposing will of the State.

This defect was now to be supplied, by giving to the national
authority, not only theoretically but practically, a supremacy over
the authority of each State. But this was not to be done by
annihilating the State governments. The government of every State was
to be preserved; and so far as its original powers were not to be
transferred to the general government, its authority over its own
citizens and within its own territory must, from the nature of
political sovereignty, be supreme. There were, therefore, to be two
supreme powers in the same country, operating upon the same
individuals, and both possessed of the general attributes of
sovereignty. In what way, and in what sense, could one of them be made
paramount over the other?

It is manifest that there cannot be two supreme powers in the same
community, if both are to operate upon the same objects. But there is
nothing in the nature of political sovereignty to prevent its powers
from being distributed among different agents for different purposes.
This is constantly seen under the same government, when its
legislative, executive, and judicial powers are exercised through
different officers; and in truth, when we come to the law-giving
power alone, as soon as we separate its objects into different
classes, it is obvious that there may be several enacting authorities,
and yet each may be supreme over the particular subject committed to
it by the fundamental arrangements of society. Supreme laws, emanating
from separate authorities, may and do act on different objects without
clashing, or they may act on different parts of the same object with
perfect harmony. They are inconsistent when they are aimed at each
other, or at the same indivisible object.[318] When this takes place,
one or the other must yield; or, in other terms, one of them ceases to
be supreme on the particular occasion. It was the purpose of the
framers of the Constitution of the United States to provide a
paramount rule, that would determine the occasions on which the
authority of a State should cease to be supreme, leaving that of the
United States unobstructed. Certain conditions were made necessary to
the operation of this rule. The State law must conflict with some
provision of the Constitution of the United States, or with a law of
the United States enacted in pursuance of the constitutional authority
of Congress, or with a treaty duly made by the authority of the Union.
The operation of this rule constitutes the supremacy of the national
government. It was supposed that, by a careful enumeration of the
objects to which the national authority was to extend, there would be
no uncertainty as to the occasions on which the rule was to apply;
and as all other objects were to remain exclusively subject to the
authority of the States within their respective territorial limits,
the operation of the rule was carefully limited to those occasions.

The highly complex character of a system in which the duties and rights
of the citizen are thus governed by distinct sovereignties, would seem
to render the administration of the central power--surrounded as it is
by jealous and vigilant local governments--an exceedingly difficult and
delicate task. Its situation is without an exact parallel in any other
country in the world. But it possesses the means which no government of
a purely federal character has ever enjoyed, of an exact determination
by itself of its own powers; because every conflict between its
authority and the authority of a State may be made a judicial question,
and as such is to be solved by the judicial department of the nation.
This peculiar device has enabled the government of the United States to
act successfully and safely. Without it, each State must have been left
to determine for itself the boundaries between its own powers and those
of the Union; and thus there might have been as many different
determinations on the same question as the number of the States. At the
same time, this very diversity of interpretation would have deprived
the general government of all power to enforce, or even to have, an
interpretation of its own. Such a confused and chaotic condition had
marked the entire history of the Confederation. It was terminated with
the existence of that political system, by the establishment of the
rule which provides for the supremacy of the Constitution of the United
States, and by making one final arbiter of all questions arising under
it.

By means of this skilful arrangement, a government, in which the
singular condition is found of separate duties prescribed to the
citizen by two distinct sovereignties, has operated with success. That
success is to be measured not wholly, or chiefly, by the diversities
of opinion on constitutional questions that may from time to time
prevail; nor by the means, aside from the Constitution, that may
sometimes have been thought of for counteracting its declared
interpretation; but by the practical efficiency with which the powers
of the Union have operated, and the general readiness to acquiesce in
the limitations given to those powers by the department in which their
construction is vested. This general acquiescence has steadily
increased, from the period when the government was founded until the
present day; and it has now come to be well understood, that there is
no alternative to take the place of a ready submission to the national
will, as expressed by or under the Constitution interpreted by the
proper national organ, excepting a resort to methods that lie wholly
without the Constitution, and that would completely subvert the
principles on which it was founded. For while it is true that the
people of each State constitute the sovereign power by which the
rights and duties of its inhabitants not involved in the Constitution
of the United States are to be exclusively governed, it is equally
true that they do not constitute the whole of the sovereign power
which governs those relations of its inhabitants that are committed to
the national legislature. The framers of the Constitution resorted to
an enactment of that instrument by the people of the United States,
and employed language which speaks in their name, for the express
purpose, among other things, of bringing into action a national
authority, on certain subjects. The organs of the general government,
therefore, are not the agents of the separate will of the people of
each State, for certain specified purposes, as its State government is
the agent of their separate will for all other purposes; but they are
the agents of the will of a collective people, of which the
inhabitants of a State are only a part. That the will of the whole
should not be defeated by the will of a part, was the purpose of the
supremacy assigned to the Constitution of the United States; and that
the rights and liberties of each part, not subject to the will of the
whole, should not be invaded, was the purpose of the careful
enumeration of the objects to which that supremacy was to extend.

In this supremacy of the national government within its proper sphere,
and in the means which were devised for giving it practical
efficiency, we are to look for the chief cause that has given to our
system a capacity of great territorial extension. It is a system in
which a few relations of the inhabitants of distinct States are
confided to the care of a central authority; while, for the purpose of
securing the uniform operation of certain principles of justice and
equality throughout the land, particular restraints are imposed on the
power of the States. With these exceptions, the several States remain
free to pursue such systems of legislation as in their own judgment
will best promote the interest and welfare of their inhabitants. Such
a division of the political powers of society admits of the union of
far greater numbers of people and communities, than could be provided
for by a single representative government, or by any other system than
a vigorous despotism. Many of the wisest of the statesmen of that
period, as we now know, entertained serious doubts whether the country
embraced by the thirteen original States would not be too large for
the successful operation of a republican government, having even so
few objects committed to it as were proposed to be given to the
Constitution of the United States. If those objects had been made to
embrace all the relations of social life, it is extremely probable
that the original limits of the Union would have far exceeded the
capacities of a republican and representative government, even if the
first difficulties arising from the differences of manners,
institutions, and local laws could have been overcome.

But these very differences may be, and in fact have been, made a means
of vast territorial expansion, by the aid of a principle which has
been placed at the foundation of the American Union. Let a number of
communities be united under a system which embraces the national
relations of their inhabitants, and commits a limited number of the
objects of legislation to the central organs of a national will,
leaving their local and domestic concerns to separate and local
authority, and the growth of such a nation may be limited only by its
position on the surface of the earth. The ordinary obstacles arising
from distance, and the physical features of the country, may be at
once overcome for a large part of the purposes of government, by this
division of its authority. The wants and interests of civilized life,
modified into almost endless varieties, by climate, by geographical
position, by national descent, by occupation, by hereditary customs,
and by the accidental relations of different races, may in such a
state of things be governed by legislation capable of exact adaptation
to the facts with which it has to deal. In this way, separate States
under the republican form may be multiplied indefinitely.

Now what is required in order to make such a multiplication of
distinct States at the same time a national growth, is the operation
of some principle that will preserve their national relations to the
control of a central authority. This is effected by the supremacy of
the Constitution of the United States, against which no separate State
power can be exerted. This supremacy secures the republican form of
government, the same general principles and maxims of justice, and the
same limitations between State and national authority, throughout all
the particular communities; while, at the same time, it regulates by
the same system of legislation, applied throughout the whole, the
rights and duties of individuals that are committed to the national
authority. It was for the want of this supremacy and of the means of
enforcing it, that the Confederation, and all the other federal
systems of free government known in history, had failed to create a
powerful and effective nationality; and it is precisely this, which
has enabled the Constitution of the United States to do for the nation
what all other systems of free government had failed to accomplish.

In this connection, it seems proper to state the origin and purpose of
that definition of treason which is found in the Constitution, and
which was placed there in order, on the one hand, to defend the
supremacy of the national government, and on the other, to guard the
liberty of the citizen against the mischiefs of constructive
definitions of that crime. No instructions had been given to the
committee of detail on this subject. They, however, deemed it
necessary to make some provision that would ascertain what should
constitute treason against the United States. They resorted to the
great English statute of the 25th Edward III.; and from it they
selected two of the offences there defined as treason, which were
alone applicable to the nature of the sovereignty of the United
States. The statute, among a variety of other offences, denominates as
treason the levying of war against the king in his realm, and the
adhering to the king's enemies in his realm, giving them aid and
comfort in the realm, or elsewhere.[319] The levying of war against
the government, and the adhering to the public enemy, giving him aid
and comfort, were crimes to which the government of the United States
would be as likely to be exposed as any other sovereignty; and these
offences would tend directly to subvert the government itself. But to
compass the death of the chief magistrate, to counterfeit the great
seal or the coin, or to kill a judge when in the exercise of his
office, however necessary to be regarded as treason in England, were
crimes which would have no necessary tendency to subvert the
government of the United States, and which could therefore be left out
of the definition of treason, to be punished according to the separate
nature and effects of each of them. The committee accordingly provided
that "treason against the United States shall consist only in levying
war against the United States, or any of them; and in adhering to the
enemies of the United States, or any of them."[320]

But here, it will be perceived, two errors were committed. The first
was, that the levying of war against a State was declared to be
treason against the United States. This opened a very intricate
question, and loaded the definition with embarrassment; for, however
true it might be, in some cases, that an attack on the sovereignty of
a State might tend to subvert or endanger the government of the
United States, yet a concerted resistance to the laws of a State,
which is one of the forms of "levying war" within the meaning of that
phrase, might have in it no element of an offence against the United
States, and might have no tendency to injure their sovereignty.
Besides, if resistance to the government of a State were to be made
treason against the United States, the offender, as was well said by
Mr. Madison, might be subject to trial and punishment under both
jurisdictions.[321] In order, therefore, to free the definition of
treason of all complexity, and to leave the power of the States to
defend their respective sovereignties without embarrassment, the
Convention wisely determined to make the crime of treason against the
United States to consist solely in acts directed against the United
States themselves.

The other error of the committee consisted in omitting from the
definition the qualifying words of the statute of Edward III., "giving
them aid and comfort," which determine the meaning of "adhering" to
the public enemy.[322] These words were added by the Convention, and
the crime of treason against the United States was thus made to
consist in levying war against the United States, or in adhering to
_their_ enemies by the giving of aid and comfort.[323]

With respect to the nature of the evidence of this crime, the
committee provided that no person should be convicted of treason
unless on the testimony of two witnesses. But to make this more
definite, it was provided by an amendment, that the testimony of the
two witnesses should be to the same overt act; and also that a
conviction might take place on a confession made in open court. The
punishment of treason was not prescribed by the Constitution, but was
left to be declared by the Congress; with the limitation, however,
that no attainder of treason should work corruption of blood, or
forfeiture, except during the life of the person attainted.[324]

FOOTNOTES:

[309] These were the 1st, 7th, 20th, and 21st of the resolutions.
_Ante_, p. 190 _et seq._, note.

[310] "We, the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity,
provide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America."

[311] The Constitution, Art. VI. (See Appendix.)

[312] July 17. Elliot, V. 322.

[313] The Constitution. Art. VI.

[314] Ibid. Art. III. § 2.

[315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381.

[316] The Constitution, Art. VII.

[317] _Ante_, p. 177, _et seq._ The resolutions may be found in
Elliot, V. 541 (Sept. 13). But the proceedings on them are not found
in Mr. Madison's Minutes, or in the Journal of the Convention. The
official record of their unanimous adoption was laid before Congress
on the 28th of September, 1787, and it bears date September 17th. It
recites the presence in Convention of all the states that attended
excepting New York, and in the place of that _State_ stands "Mr.
Hamilton _from_ New York." This record precedes the official letter
addressed by the Convention to Congress. See Journals of Congress for
September 28, 1787, Vol. XII. pp. 149-165.

[318] See a speech made by Hamilton in the Convention of New York.
Works, II. 462.

[319] 4 Blackstone's Com., Book IV. ch. 6.

[320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V.
379.

[321] Elliot, V. 450.

[322] The effect of these words is as if the statute read "adhering to
the enemy _by_ giving him aid and comfort," and not as if they were
two separate offences.

[323] See the debate, Elliot, V. 447-451.

[324] Ibid. Art. III. § 3 of the Constitution.



CHAPTER XIII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--ELECTION AND POWERS OF
THE PRESIDENT.


In describing the manner in which the Constitution and powers of the
Senate were finally arranged, I have already had occasion to state,
that, after the report of the committee of detail came in,--vesting
the appointment of the President in the national legislature, creating
a term of seven years, and making the incumbent ineligible a second
time,--a direct election by the people was negatived by a large
majority. This mode of election, as a means of removing the
appointment from the legislature, would have been successful, but it
was inadmissible on other accounts. In the first place, it would have
given to the government a character of complete consolidation, so far
as the executive department was concerned, to have vested the election
in the people of the United States as one community. In the second
place, not only would the States, as sovereignties, have been excluded
from representation in this department, but the slaveholding States
would have had a relative weight in the election only in the
proportion of their free inhabitants. On the other hand, to provide
that the executive should be appointed by electors, to be chosen by
the people of the States, involved the necessity of prescribing some
rule of suffrage for the people of all the States, or of adopting the
existing rules of the States themselves. Probably it was on account of
this embarrassment, that a proposition for electors to be chosen in
this mode was negatived, by a bare majority, soon after the vote
rejecting a direct election of the President by the people.[325] There
remained the alternatives of an election by one or both of the houses
of Congress, or by electors appointed by the States in a certain
ratio, or by electors appointed by Congress. The difficulty of
selecting from these various modes led the Convention to adhere to an
election by the two houses; and when the disadvantages of this plan,
already described, had developed the necessity for some other mode of
appointment, the relations between the Senate and the executive were,
as we have seen, sent to a grand committee, who devised a scheme for
their adjustment.

In this plan it was proposed that each State should appoint, in such
manner as its legislature might direct, a number of electors equal to
the whole number of senators and representatives in Congress to which
the State might be entitled under the provisions of the Constitution
already agreed upon. The advantages of this plan were, that it
referred the mode of appointing the electors to the States themselves,
so that they could adopt a popular election, or an election by their
legislatures, as they might prefer; and that it would give to each
State the same weight in the choice of the President that it was to
have in the two houses of Congress, provided a majority or a plurality
of the electoral votes were to determine the appointment. The
committee recommended that the electors should meet in their
respective States, on the same day, and vote by ballot for two
persons, one of whom, at least, should not be an inhabitant of the
same State with themselves; and that the person having the greatest
number of votes, if such number were a majority of all the electoral
votes, should be the President. To this part of the plan, there was
likely to be little objection. But the mode of electing the President
in case of a failure to concentrate a majority of the electoral votes
upon one person, or in case more than one person should have such a
majority, was the most difficult part of the whole scheme. The object
of the committee was to devise a process which should result in the
election both of a President and a Vice-President; and they proposed
to make the person having the next largest number of electoral votes
the Vice-President. If two of the persons voted for should have a
majority of all the votes, and the same number of votes, then the
Senate were immediately to choose one of them, by ballot, as the
President; if no person should have such a majority, then the Senate
were to choose the President by ballot from the five highest on the
list of candidates returned by the electors. If a choice of the
President had been effected by the electoral votes, the person having
the next highest number of electoral votes was to be the
Vice-President; and if there were two or more having an equal number
of electoral votes, the Senate were to choose one of them as
Vice-President.

From the proceedings which took place upon this plan, it appears that
what many of the framers of the Constitution most apprehended was,
that the votes in the electoral bodies would not be sufficiently
concentrated to effect a choice, from want of the requisite general
knowledge of the persons who might be considered in different parts of
the Union as fit candidates for these high offices; and consequently
that the election would be thrown into such other body as might be
directed to make it after a failure in the action of the electors. It
is a remarkable proof of their wisdom, that, although intimations
began to appear in the public prints, as soon as the Constitution was
published, that Washington would be the first President of the United
States,--an expectation that must, therefore, have been entertained by
the members of the Convention before they had finished their
labors,--they were at no time under the influence of this pleasing
anticipation.[326] They kept steadily in view a state of things in
which, from the absence of statesmen of national reputation and
influence, and from the effect of local preferences, no choice would
be made by the electors. Hence their solicitude to provide for the
secondary election, in such a way as to admit of a re-election of the
incumbent. It was soon found that between the President and the Senate
there would be a mutual connection and influence, which would be
productive of serious evils, whether he were to be made eligible or
ineligible a second time, if the Senate were to have the appointment
after the electors had failed to make a choice. To remedy this, many
of the members, among whom was Hamilton, preferred to let the highest
number of electoral votes, whether a majority or not, appoint the
President. As the grand committee had proposed to reduce the term of
office from seven to four years, and to strike out the clause making
the incumbent ineligible,--a change which met the approbation of a
large majority of the States,--it became still more necessary to
prevent any resort to the Senate for a secondary election. But an
appointment by less than a majority of the electoral votes presented,
on the other hand, the serious objection that the President might owe
his appointment to a minority of the States. To preserve, as far as
possible, a federal character for the government, in some of its
departments, was justly regarded as a point of great importance. One
branch of the legislature had become a depositary of the democratic
power of a majority of the people of the United States;--the other
branch was the representative of the States in their corporate
capacities;--the President was to be in some sense a third branch of
the legislative power, by means of his limited control over the
enactment of laws;--and it was, therefore, something more than a mere
question of convenience, whether he should, at the final stage of the
process, be elected by a less number than a majority of all the
States. That part of the plan which proposed to elect him by a
majority of all the electoral votes, giving to each State as many
votes as it was to have in both houses of Congress, might make the
individual, when so elected, theoretically the choice of a majority of
the people of the United States, although not necessarily the choice
of a majority of the States. But there was a peculiar feature of this
plan,--afterwards, in the year 1804, changed to a more direct
method,--by which the electors were required to return their votes for
two persons, without designating which of them was their choice for
President, and which for Vice-President, the designation being
determined by the numbers of votes found to be given for each person.
This method of voting increased the chances of a failure to choose the
President by the electoral votes. It is not easy to understand why the
framers of the Constitution adhered to it; although it is probable
that its original design was to prevent corruption and intrigue.
Whatever its purpose may have been, it served to make still more
prominent the expediency, not only of removing the ultimate election
from the Senate, but of providing some mode of conducting that
election by which an appointment by a minority of the States would be
prevented, when a majority of the electoral votes had not united upon
any one individual, or had united upon two.

The plan which had been prepared by the grand committee, and which
adjusted the relations between the executive and the Senate respecting
appointments and treaties, had left no body in the government so
likely to be free from intimate relations with the President, and at
the same time so capable of being made the instrument of an election,
as the House of Representatives. By the fundamental principle on which
that body had been agreed to be organized,--in direct contrast to the
basis of the Senate,--its members were the representatives of the
people inhabiting the several States, and in the business of
legislation a majority of their votes was to express the will of a
majority of the people of the United States. But the representatives
were to be chosen in the separate States; and nothing was more easy,
therefore, than to provide that, in any other function, they should
act as the agents of their States, making the States themselves the
real parties to the act, without doing any violence to the principle
on which they were assembled for the purposes of legislation.
Accordingly, as soon as a transfer of the ultimate election from the
Senate to the House of Representatives was proposed, the method of
voting by States was adopted, with only a single dissent.[327] The
establishment of two thirds as a quorum of the States for this
purpose, and the provision that a majority of all the States should be
necessary to a choice, followed naturally as the proper safeguards
against corruption, and were adopted unanimously.

The principal office of the executive department was thus provided
for; but the ultimate choice of the Vice-President remained to be
regulated. This office was unknown to the draft of the Constitution
prepared by the committee of detail, and was suggested only when the
mode of organizing the executive, and of providing for some of the
separate functions of the Senate, came to be closely considered
together. We are to look for its purposes, therefore, in the
provisions specially devised for the settlement of these relations. In
the first place, it was apparent that the executive would be a branch
of the government that ought never to be vacant. The principle which,
in hereditary monarchies, on the death of the sovereign, instantly
devolves the executive power upon him who stands next in a fixed order
of succession, must in some degree be imitated in purely elective
governments, if great mischiefs are to be avoided. The difficulty
which attends its application to such governments consists not in the
nature of the principle itself, but in finding a number of public
functionaries who can be placed in a certain order of succession,
without creating mere heirs to the succession, for that purpose alone.
In hereditary governments, the members of a family, in a designated
order, stand as the successive recipients of the executive office; and
each of them, until he reaches the throne, may have no other function
in the state than that of an heir, near or remote, to the crown, and
may, without inconvenience to the public welfare, occupy that
position alone. But in elective, and especially in republican
governments, the succession must be devolved on some person already
filling some other office; for to designate as a successor to the
chief magistrate a person who has no public employment, and no other
public position than that of an heir apparent, would be attended with
many obvious disadvantages, in such a government.

Fortunately, the peculiar construction of the Senate was found to
require a presiding officer who should not be a member of the body
itself. As each State was to be represented by two delegates, and as
it would be important not to withdraw either of them from active
participation in the business of the chamber, a presiding officer was
needed who would represent neither of the States. By placing the
Vice-President of the United States in this position, he would have a
place of dignity and importance, would be at all times conversant with
the public interests, and might pass to the chief magistracy, on the
occurrence of a vacancy, attended with the public confidence and
respect. This arrangement was devised by the grand committee, and was
adopted with general consent. It contemplated, also, that the
Vice-President, as President of the Senate, should have no vote,
unless upon questions on which the Senate should be equally divided;
and on account of his relation to this branch of the legislature, the
ultimate election of the Vice-President, when the electors had failed
to appoint him under the rule prescribed, was retained in the hands of
the Senate.

The rule that was to determine when the Vice-President was to succeed
to the functions of the chief magistrate, was also embraced in the
plan of the grand committee. It was apparent that a vacancy in the
principal office might occur by death, by resignation, by the effect
of inability to discharge its powers and duties, and by the
consequences of an impeachment. When either of these events should
occur, it was provided that the office should devolve on the
Vice-President. In the case of death or resignation of the President,
no uncertainty can arise. In a case of impeachment, a judgment of
conviction operates as a removal from office. But the grand committee
did not provide, and the Constitution does not contain any provision
or direction, for ascertaining the case of an inability to discharge
the powers and duties of the office. When such an inability is
supposed to have occurred, and is not made known by the President
himself, how is it to be ascertained? Is there any department of the
government that can, with or without a provision of law, proceed to
inquire into the capacity of the President, and to pronounce him
unable to discharge his powers and duties? What is meant by the
Constitution as _inability_ is a case which does not fall within the
power of impeachment, for that is confined to treason, bribery, and
other high crimes and misdemeanors. It is the case of a simple
incapacity, arising from insanity, or ill health, or, as might
possibly occur, from restraint of the person of the President by a
public enemy. But in the former case, how shadowy are the lines which
often separate the sound mind or body from the unsound! Society has
had one memorable example, in modern times and in constitutional
monarchy, of the delicacy and difficulty of such an inquiry;--an
instance in which all the appliances of science and all the fixed
rules of succession were found scarcely sufficient to prevent the rage
of party, and the struggles of personal ambition, from putting the
state in jeopardy.[328] With us, should such a calamity ever happen,
there must be a similar effort to meet it as nearly as possible upon
the principles of the Constitution, and consequently there must be a
similar strain on the Constitution itself.

In order to make still further provision for the succession, Congress
were authorized to declare by law what officer should act as
President, in case of the removal, death, resignation, or inability of
both the President and the Vice-President, until the disability should
be removed, or a new President should be elected.

The mode of choosing the electors was, as we have seen, left to the
legislatures of the States. Uniformity, in this respect, was not
essential to the success of this plan for the appointment of the
executive, and it was important to leave to the people of the States
all the freedom of action that would be consistent with the free
working of the Constitution. But it was necessary that the time of
choosing the electors, and the day on which they were to give their
votes, should be prescribed for all the States alike. These
particulars were, therefore, placed under the direction of Congress,
with the single restriction, that the day of voting in the electoral
colleges should be the same throughout the United States. In order to
make the electors a distinct and independent body of persons,
appointed for the sole function of choosing the President and
Vice-President, it was provided further, that no senator or
representative, or person holding an office of trust or profit under
the United States, shall be appointed an elector.[329]

The electors were required to meet in their respective States, and to
vote by ballot for two persons, one of whom at least should not be an
inhabitant of the same State with themselves. Having made a list of
all the persons voted for, and of the number of votes given for each,
they were to sign and certify it, and to transmit it sealed to the
seat of government of the United States, directed to the President of
the Senate, who, in the presence of the Senate and the House of
Representatives, was to open all the certificates, and the votes were
then to be counted.

Such was the method devised by the framers of the Constitution for
filling the executive office. Experience has required some changes to
be made in it. It has been found that to require the electors to
designate the persons for whom they vote as the President and
Vice-President, respectively, has a tendency to secure a choice by the
electoral votes, and therefore to prevent the election from being
thrown into the House of Representatives; and it has also been deemed
expedient, when the election has devolved on the House of
Representatives, to confine the choice of the States to the three
highest candidates on the list returned by the electors. These changes
were made by the twelfth of the amendments to the Constitution,
adopted in the year 1804, which also provides that the person having
the greatest number of the electoral votes for President shall be
deemed to be chosen by the electors, if such number be a majority of
the whole number of electors appointed. If a choice is not made by the
electors, or by the House of Representatives, before the fourth day of
March next following the election, the amendment declares that the
Vice-President shall act as President, "as in the case" (provided by
the Constitution) "of the death or other constitutional disability of
the President."

In the appointment of the Vice-President, the amendment has also
introduced some changes. The person having the greatest number of the
electoral votes as Vice-President, if the number is a majority of all
the electors appointed, is to be the Vice-President; but if no choice
is thus effected, the Senate are to choose the Vice-President from the
two highest candidates on the list returned by the electors; but a
quorum for this purpose is to consist of two thirds of the whole
number of senators, and a majority of the whole number is made
necessary to a choice. The amendment further adopts the same
qualifications for the office of Vice-President as had been
established by the Constitution for the office of President.[330]

Thus it appears, from an examination of the original Constitution and
the amendment, that the most ample provision is made for filling the
executive office, in all contingencies but one. If the electors fail
to choose according to the rule prescribed for them, the election
devolves on the House of Representatives. If that body does not choose
a President before the fourth day of March next ensuing, the office
devolves on the Vice-President elect, whether he has been chosen by
the electors or by the Senate. But if the House of Representatives
fail to choose a President, and the Senate make no choice of a
Vice-President, or the Vice-President elect dies before the next
fourth day of March, the Constitution makes no express provision for
filling the office, nor is it easy to discover in it how such a
vacancy is to be met. The Constitution, it is true, confers upon
Congress authority to provide by law for the case of removal, death,
resignation, or inability of _both_ the President and Vice-President,
and to declare what officer shall then act as President; and it
provides that the officer so designated by a law of Congress shall act
accordingly, until the disability be removed, or a President shall be
elected. But there is every reason to believe that this provision
embraces the case of a vacancy in both offices occasioned by removal,
death, resignation, or inability, not of the President and
Vice-President elect, but of the President and Vice-President in
office. It may be doubted whether the framers of the original
Constitution intended to provide for a vacancy in both offices
occasioned by the failure of the House of Representatives to elect a
President and the death of the Vice-President elect, or a non-election
of a Vice-President by the Senate, before the fourth day of March.
Their plan was in the first instance studiously framed for the purpose
of impressing on the electors the duty of concentrating their votes;
and although they saw and provided for the evident necessity of an
election of a President by the House of Representatives, when the
electoral votes had not produced a choice, they omitted all express
provision for a failure of the House to choose a President, apparently
for the purpose of making the States in that body feel the importance
of the secondary election, and the duty of uniting their votes. This
omission was supplied by the amendment, which authorizes the
Vice-President elect to act as President, when the House of
Representatives have failed to choose a President, "as in the case of
the death or other constitutional disability of the President." This
adoption, for the case of a non-election by the House, of the mode of
succession previously established by the Constitution, shows that the
authority which the Constitution gave to Congress to declare by law
what officer shall act as President, in case of a vacancy in both
offices, was confined to the removal, death, resignation, or inability
of the President and Vice-President in office, and does not refer to
the President and Vice-President elect, whose term of office has not
commenced.[331]

The committee of detail made no provision respecting the
qualifications of the President. But the grand committee, to whom the
construction of the office was referred, recommended the
qualifications which are to be found in the Constitution; namely, that
no person shall be eligible to the office who was not born a citizen
of the United States, or was not a citizen at the time of the adoption
of the Constitution, and who had not attained the age of thirty-five
years, and been fourteen years a resident within the United States.
These requirements were adopted with unanimous assent.[332]

That the executive should receive a stipend, or pecuniary
compensation, was a point which had been settled in the earliest stage
of the proceedings, notwithstanding the grave authority of Franklin,
who was opposed to it. The speech which he delivered on this subject
was based upon the maxim, that, in all cases of public service, the
less profit, the greater honor. He seems to have been actuated chiefly
by the fear that the government would in time be resolved into a
monarchy; and he thought this catastrophe would be longer delayed, if
the seeds of contention, faction, and tumult were not sown in the
system, by making the places of honor places of profit. He maintained
this opinion for the case even of a plural executive, which he
decidedly advocated; and he instanced the example of Washington, who
had led the armies of the Revolution for eight years without receiving
the smallest compensation for his services, to prove the
practicability of "finding three or four men, in all the United
States, with public spirit enough to bear sitting in peaceful council
for perhaps an equal term, merely to preside over our civil concerns,
and see that our laws are duly executed." His plan was treated with
the respect due to his illustrious character, but no one failed to see
that it was a "Utopian idea."[333] The example of Washington was, in
truth, inapplicable to the question. A patriotic Virginia gentleman,
of ample fortune, was called upon, in the day of his country's
greatest trial, to take the lead in a desperate struggle for
independence. The nature of the war, his own eminence, his character
and feelings, the poverty of a country which he foresaw would often be
unable to pay even the common soldier, and his motives for embarking
in the contest, all united to make the idea of compensation
inadmissible to a man whose fortune made it unnecessary. Such a
combination of circumstances could scarcely ever occur in the case of
a chief magistrate of a regular and established government. If an
individual should happen to be placed in the office, who possessed
private means enough to render a salary unnecessary to his own wants,
or to the dignity of the position, the duty of his example might point
in precisely the opposite direction, and make it expedient that he
should receive what his successors would be unable to decline. But the
real question which the framers of the Constitution had to decide was,
in what way could the office be constituted so as to give the people
of the United States the widest range of choice among the public men
fit to be placed in it. To attach no salary to the chief executive
office, in a republican government, would practically confine the
office to men who had inherited or accumulated wealth. The Convention
determined that this mischief should be excluded. They adopted the
principle of compensation for the office of chief magistrate, and when
the committee of detail came to give effect to this decision, they
added the provision, that the compensation shall neither be increased
nor diminished during the period for which a President has been
elected.[334] The limitation which confines the President to his
stated compensation, and forbids him to receive any other emolument
from the United States, or from any State, was subsequently
introduced, but not by unanimous consent.[335]

The question whether the single person in whom the executive power was
to be vested should exercise it with or without the aid or control of
any council of state, was one that in various ways ran through the
several stages of the proceedings. As soon as it was settled that the
executive should consist of a single person, the nature and degree of
his responsibility, and the extent to which it might be shared by or
imposed upon any other officers, became matters of great practical
moment. What was called at one time a council of revision was a body
distinct from a cabinet council, and was proposed for a different
purpose. The function intended for it by its advocates related
exclusively to the exercise of the revisionary check upon legislation.
But we have seen that the nature of this check, the purposes for which
it was to be established, and the practical success with which it
could be introduced into the legislative system, required that the
power and the responsibility should rest with the President alone.
There remained, however, the further question concerning a cabinet, or
council of state; an advisory body, with which some of the most
important persons in the Convention desired to surround the
President, to assist him in the discharge of his duties, without the
power of controlling his actions, and without diminishing his legal
responsibility. Such a plan not having received the sanction of the
Convention, the draft of the Constitution reported by the committee of
detail of course contained no provision for it. It was subsequently
brought forward, and received the recommendation of a committee;[336]
but the grand committee, who were charged with the adjustment of the
executive office, substituted for it a different provision, which gave
the President power to "require the opinion in writing of the
principal officer in each of the executive departments, upon any
subject relating to the duties of their respective offices." The
friends of a council[337] regarded this arrangement of the executive
office, especially with regard to the power of appointment, as
entirely defective.[338] But the reason on which it was rested by the
grand committee, and on which the plan of a council of state was
rejected, was, that the President of the United States, unlike the
executive in mixed governments of the monarchical form, was to be
personally responsible for his official conduct, and that the
Constitution should do nothing to diminish that responsibility, even
in appearance. If it had not been intended to make the President
liable to impeachment, a cabinet might have been useful, and would
certainly have been necessary, if there was to be any responsibility
anywhere for executive acts. But a large majority of the States
preferred to interpose no shield between the President and a public
accusation. He might derive any assistance from the great officers of
the executive departments which Congress might see fit to establish,
that he could obtain from their opinions or advice; but the powers
which the Constitution was to confer on him must be exercised by
himself, and every official act must be performed as his own.[339]

What those powers were to be, had not been fully settled when the
first draft of the Constitution came from the committee of detail. The
executive function, or the power and duty of causing the laws to be
duly and faithfully executed; authority to give information to
Congress on the state of the Union, and to recommend measures for
their consideration; power in certain cases to convene and to adjourn
the two houses; the commissioning of all officers, and the appointing
to office in cases not otherwise provided for by the Constitution; the
receiving of ambassadors; the granting of reprieves and pardons; the
chief command of the army and navy of the United States and of the
militia of the several States,--were all provided for. But the foreign
relations of the country were committed wholly to the Senate, as was
also the appointment of ambassadors and of judges of the Supreme
Court. It is not necessary to explain again the grounds on which the
Convention were finally obliged to alter this arrangement. It will be
convenient, however, to take up the several powers and functions of
the executive, and to describe briefly the scope and purpose
ultimately given to each of them.

In the plan of government originally proposed by Governor Randolph,
the division into the three departments of an executive, a
legislative, and a judiciary, implied, for the first of these
departments, according to the theory of all governments which are thus
separated, power to carry into execution the existing laws. This
government, however, was to succeed one that had regulated the affairs
of the Union for several years, in which all the powers vested in the
confederacy of the States were held and exercised by the Congress of
their deputies; and among those powers was that of declaring war and
making peace. This function is, moreover, embraced in the general
powers of the executive department, in most governments in which there
is a regular separation of that department from the legislative and
the judiciary. But it became apparent at the very commencement of the
process of forming the Constitution of the United States, that the
question whether the executive should be intrusted with the power of
war and peace would not only be made, but that the system would have
to be so arranged as to make the government, in this particular, an
exception to the general rule. This was partly owing to an
unwillingness to intrust such a power to one person;--or even to a
plurality of persons, if the executive should be so constituted. If to
the general powers of executing the laws, and of appointing to office,
there were to be added the power to make war and peace, and the whole
were to be vested in a single magistrate, it was rightly said that the
government would be in substance an elective monarchy. The power of
the executive, over the external relations of the country at least,
would be the same, in kind and in extent, as it is in constitutional
monarchies, and the sole difference would be that the supreme
magistrate would be elective. This was not intended, and was not
admissible. Still another reason for making the government of the
United States, in this feature, an exception to the general rule, was
the necessity for giving to the States, in their corporate capacities,
some control over the foreign relations of the country.

Our further inquiries concerning this part of the powers and functions
of the chief magistrate will only need to extend so far as to
ascertain what is the "executive power," which the Constitution
declares shall be "vested" in the President. In the resolutions, which
at different stages had previously passed in the Convention, this had
been described as a "power to carry into execution the national laws";
and this description was regarded as including such other powers, not
legislative or judicial in their nature, as might from time to time be
delegated to the President by Congress.[340] The committee of detail,
in drafting the Constitution, employed the phrase "executive power" to
describe what had thus been designated by the resolutions sent to
them; and as the plan of government which they presented proposed to
make the declaration of a state of war a legislative act, the
prosecution of a war, when declared, was left to fall within the
executive duties as part of the "executive power." In order, moreover,
that the executive duties might be still more clearly defined, the
committee provided that the President "shall take care that the laws
be faithfully executed," and imposed upon him the same obligation by
the force of his oath of office. The committee having been directed to
provide for the end in view, it was considered that they were also to
provide the means by which the end was to be obtained.[341]
Accordingly, they made the President commander-in-chief of the army
and navy, and of the militia of the States when called into the
service of the United States. The President appears, therefore, to
have been placed in the same position with reference to the means to
be employed in the discharge of all his executive duties, when force
may in his judgment be necessary. The declaration of a state of war is
an enactment by the legislative branch of the government; the creation
of laws is a function that belongs exclusively to the same
department;--but when a law exists, or the state of war exists, it is
for the President, by virtue of his executive office, and of his
position as commander-in-chief, to employ the army and navy, and the
militia actually called into the service of the United States, in the
execution of the law, or the prosecution of hostilities, in such a
manner as he may think proper.[342]

Closely allied to the power of executing the laws is that of pardoning
offences, and relieving against judicial sentences. This power was
originally extended by the committee of detail to all offences
against the United States, excepting cases of impeachment, in which
they provided that the pardon of the President should not be pleaded
in bar. This would have made the power precisely like that of the king
of England; since, by the English law, although the king's pardon
cannot be pleaded in bar of an impeachment, he may, after conviction,
pardon the offender. But as it was intended in the Constitution of the
United States to limit the judgment in an impeachment to a removal
from office, and to subsequent disqualification for office, there
would not be the same reason for extending to it the executive power
of pardon that there is in England, where the judgment is not so
limited. The Convention, therefore, took from the President all power
of pardon in cases of impeachment, making them the sole exception to
the power.[343] A strong effort was indeed made to establish another
exception in cases of treason, upon the ground, chiefly, that the
criminal might be the President's own instrument in an attempt to
subvert the Constitution. But since all agreed that a power of pardon
was as necessary in cases of treason as in all other offences, and as
it must be given to the legislature, or to one branch of it, if not
lodged with the executive, a very large majority of the States
preferred to place it in the hands of the President, especially as he
would be subject to impeachment for any participation in the guilt of
the party accused.[344]

The power to make treaties, which had been given to the Senate by the
committee of detail, and which was afterwards transferred to the
President, to be exercised with the advice and consent of two thirds
of the senators present, was thus modified on account of the changes
which the plan of government had undergone, and which have been
previously explained. The power to declare war having been vested in
the whole legislature, it was necessary to provide the mode in which a
war was to be terminated. As the President was to be the organ of
communication with other governments,[345] and as he would be the
general guardian of the national interests, the negotiation of a
treaty of peace, and of all other treaties, was necessarily confided
to him. But as treaties would not only involve the general interests
of the nation, but might touch the particular interests of individual
States, and, whatever their effect, were to be part of the supreme law
of the land, it was necessary to give to the senators, as the direct
representatives of the States, a concurrent authority with the
President over the relations to be affected by them. The rule of
ratification suggested by the committee to whom this subject was last
confided was, that a treaty might be sanctioned by two thirds of the
senators present, but not by a smaller number. A question was made,
however, and much considered, whether treaties of peace ought not to
be subjected to a different rule. One suggestion was, that the Senate
ought to have power to make treaties of peace without the concurrence
of the President, on account of his possible interest in the
continuance of a war from which he might derive power and
importance.[346] But an objection, strenuously urged, was, that, if
the power to make a treaty of peace were confided to the Senate alone,
and a majority or two thirds of the whole Senate were to be required
to make such a treaty, the difficulty of obtaining peace would be so
great, that the legislature would be unwilling to make war on account
of the fisheries, the navigation of the Mississippi, and other
important objects of the Union.[347] On the other hand, it was said
that a majority of the States might be a minority of the people of the
United States, and that the representatives of a minority of the
nation ought not to have power to decide the conditions of peace.

The result of these various objections was a determination on the part
of a large majority of the States not to make treaties of peace an
exception to the rule, but to provide a uniform rule for the
ratification of all treaties. The rule of the Confederation, which had
required the assent of nine States in Congress to every treaty or
alliance, had been found to work great inconvenience; as any rule must
do, which should give to a minority of States power to control the
foreign relations of the country. The rule established by the
Constitution, while it gives to every State an opportunity to be
present and to vote, requires no positive quorum of the Senate for the
ratification of a treaty; it simply demands that the treaty shall
receive the assent of two thirds of all the members who may be
present. The theory of the Constitution undoubtedly is, that the
President represents the people of the United States generally, and
the senators represent their respective States; so that, by the
concurrence which the rule thus requires, the necessity for a fixed
quorum of the States is avoided, and the operations of this function
of the government are greatly facilitated and simplified.[348] The
adoption, also, of that part of the rule which provides that the
Senate may either "advise or consent," enables that body so far to
initiate a treaty, as to propose one for the consideration of the
President;--although such is not the general practice.

Having already described the changes which took from the Senate alone
the appointment of the judges of the Supreme Court and ambassadors, it
is only necessary in this connection to notice the manner in which the
power of appointment to all offices received its final scope and
limitations. The plan reported by the committee of detail had, as we
have repeatedly seen, vested the appointment of ambassadors and judges
of the Supreme Court in the Senate, and had given to the President the
sole voice in the appointment of all other officers of the United
States. The adjustment afterwards made gave the nomination of all
officers to the President, but required the advice and consent of the
Senate to complete an appointment. Two inconveniences were likely to
be experienced under this arrangement. Many inferior offices might be
created, which it would be unnecessary and inexpedient to fill by this
process of nomination by the President and confirmation by the Senate;
and vacancies might occur in all offices, which would require to be
filled while the Senate was not in session. To obviate these
inconveniences, the Congress were authorized to vest the appointment
of such inferior officers as they might think proper in the President
alone, in the courts of law, or in the heads of departments; and power
was given to the President to fill up all vacancies that might happen
during the recess of the Senate, by granting commissions which should
expire at the end of their next session.[349] In order to restrain the
President from practically creating offices by the power of
appointment, his power was limited to "offices created by law," and to
those specially enumerated in the Constitution.[350]

In addition to these powers, the committee of detail had provided for
certain direct relations, of a special nature, between the President
and the Congress. One of these was to consist in giving to the
Congress from time to time information of the state of the Union, and
in recommending to their consideration such measures as he shall judge
necessary and expedient. The other was embraced in the power to
convene the two houses on extraordinary occasions; and, whenever there
should be a disagreement between them with respect to the time of
adjournment, to adjourn them to such time as he shall think proper.
The latter power is to be taken in connection with the clause which
requires Congress to meet at least once in every year, and on the
first Monday in December, unless a different day shall be appointed by
law. Neither the two houses by agreement, nor the President in case of
a disagreement, can fix on a time of adjournment beyond the day of the
commencement of the next regular session. But subject to this
restriction, the power of the President to determine the time at which
the two houses shall reassemble, when they do not agree upon a time,
extends to every session of Congress, whether it be regular or
"extraordinary."[351]

FOOTNOTES:

[325] August 24. Elliot, V. 472, 473.

[326] The Constitution was published in the Pennsylvania Journal,
Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as
we should now say, "nominated" General Washington for the Presidency.

[327] Delaware. Elliot, V. 519.

[328] I allude, of course, to the case of King George III., which had
not happened when our Constitution was framed. To ascertain the sanity
of a private person is certainly often no less delicate and difficult,
than to inquire into the sanity of a person in a high public position.
But there is a legal process for determining the capacity of every
person to discharge private duties or to exercise private rights. In
the case of the President of the United States, there is no mode
provided by the Constitution for ascertaining his inability to
discharge his public functions, and no authority seems to have been
given to Congress to provide for such an inquiry. Perhaps the
authority could not have been given, with safety and propriety.

[329] This clause was inserted, by unanimous consent, on the motion of
Mr. King and Mr. Gerry, September 6. Elliot, V. 515.

[330] See _post_, p. 621.

[331] Congress, however, have not only provided that the President
_pro tempore_ of the Senate and the Speaker of the House of
Representatives shall successively act as President, in case of the
removal, death, resignation, or inability both of the President and
Vice-President, until the disability be removed or a President shall
be elected, but also that, whenever the offices of President and
Vice-President _shall both become vacant_, a new appointment of
electors shall be ordered, and a new election made. The constitutional
authority for this latter provision is at least doubtful. (Act of
March 1, 1792.) I have discovered no evidence that the framers of the
Constitution contemplated an intermediate election of President and
Vice-President, excepting an amendment moved by Mr. Madison. The
clause which enables Congress to declare what officer shall act as
President, on the death, &c. of both the President and Vice-President,
was introduced by Governor Randolph, and terminated thus: "And such
officer shall act accordingly, until the time of electing a President
shall arrive." Mr. Madison moved to substitute for this the words,
"until such disability be removed, or a President shall be elected";
and he has recorded in his Minutes, that he remarked, on moving this
amendment, that the phraseology of Governor Randolph "would prevent a
supply of the vacancy by an intermediate election." This amendment was
adopted. (Elliot, V. 520, 521.) But the difficulty in the way of
construing the clause so as to give effect to this suggestion is, that
the terms employed by Mr. Madison do not of themselves necessarily
import an authority to Congress to order an intermediate election, any
more than those used by Governor Randolph. Either of these
expressions, when incorporated into the Constitution, would have to be
construed with reference to the whole system prescribed by the
Constitution for filling the executive branch of the government.
Taking all the provisions together, it appears that the executive
power is to be vested in a President, who is to hold his office for a
term of four years; that Congress shall fix the day on which he is to
be chosen by the electors; that, when so chosen, he is to hold the
executive power for four years; that if he dies, or is disabled,
within that term, and there is no Vice-President to succeed him,
Congress shall declare by law what officer shall then _act as
President_, that is, shall hold and exercise the executive power, and
such officer is to _act accordingly_, until the disability be removed,
or a President shall be elected. It would seem, therefore, that when
the officer designated by Congress is required to _act as President_,
the powers and duties of the office are devolved upon him for the
residue of the term of four years, in a case of vacancy by death,
removal, or resignation; for the terms "until a President shall be
elected" certainly do not import any express authority to order a new
election; and although there is a general authority in Congress to fix
the day for the election of a President, it must be a President chosen
for the term of four years.

[332] Elliot, V. 462, 507, 521, 522.

[333] He anticipated that it would be so regarded. Hamilton, who was
in all his views, as unlike Franklin as any man could be, seconded the
motion, out of respect for the mover.

[334] Elliot, V. 380.

[335] Connecticut, New Jersey, Delaware, and North Carolina voted
against it.

[336] Elliot, V. 446, 462.

[337] Mason, Franklin, Wilson, Dickinson, and Madison.

[338] Elliot, V. 525.

[339] Those who are not familiar with the precise structure of the
American government will probably be surprised to learn that what is
in practice sometimes called the "Cabinet" has no constitutional
existence as a directory body, or one that can decide anything. The
theory of our government is, that what belongs to the executive power
is to be exercised by the uncontrolled will of the President. Acting
upon the clause of the Constitution which empowers the President to
call for the opinions in writing of the heads of departments,
Washington, the first President, commenced the practice of taking
their opinions in separate consultation; and he also, upon important
occasions, assembled them for oral discussion, in the form of a
council. After having heard the reasons and opinions of each, he
decided the course to be pursued. The second President, Mr. John
Adams, followed substantially the same practice. The third President,
Mr. Jefferson, adopted a somewhat different practice. When a question
occurred of sufficient magnitude to require the opinions of all the
heads of departments, he called them together, had the subject
discussed, and a vote taken, in which he counted himself but as one.
But he always seems to have considered that he had the _power_ to
decide against the opinion of his cabinet. That he never, or rarely,
exercised it, was owing partly to the unanimity in sentiment that
prevailed in his cabinet, and to his desire to preserve that
unanimity, and partly to his disinclination to the exercise of
personal power. When there were differences of opinion, he aimed to
produce a unanimous result by discussion, and almost always succeeded.
But he admits that this practice made the executive, in fact, a
directory. Jefferson's Works, V. 94, 568, 569.

[340] Elliot, V. 141, 142.

[341] Elliot, V. 343, 344.

[342] The Constitution having vested in Congress power to provide for
calling the militia into the service of the United States, to execute
the laws, suppress insurrections, and repel invasions, the President
cannot call out the militia unless authorized to do so by Congress.
But with respect to the employment of the army and navy for any
executive purpose, it may be doubted whether any authority from
Congress is necessary; as it may also be doubted whether Congress can
exercise any control over the President in the use of the land or
naval forces, either in the execution of the laws, or in the discharge
of any other executive duty.

[343] Elliot, V. 480.

[344] Ibid. 549.

[345] It was to be one of the distinct functions of the President "to
receive ambassadors and other public ministers."

[346] Mr. Madison so thought. Elliot, V. 524.

[347] Ibid.

[348] The several votes taken upon different aspects of the rule for
the ratification of treaties make the theory quite clearly what is
stated in the text. See the proceedings, September 7, 8. Elliot, V.
524, 526.

[349] This power embraces of course only those offices the appointment
to which is vested in the President and Senate.

[350] The Constitution (Art. II. § 2) seems to contemplate
ambassadors, other public ministers and consuls, and judges of the
Supreme Court, as officers to exist under the Constitution, whether
provision is or is not made by law for their appointment and
functions. It is made the imperative duty of the President to
nominate, and with the consent of the Senate to appoint them. Hence it
has been supposed that the President can appoint a foreign minister
without waiting to have his particular office regulated or established
by law; and as the President conducts the foreign intercourse of the
country, he could prescribe the duties of such a minister. In like
manner, with the consent of the Senate, the President could appoint a
judge of the Supreme Court, and would be bound to do so, although no
act of Congress existed providing for the organization and duties of
the Court. But as the President cannot distribute the judicial power,
the Court, when so appointed, would have only the functions conferred
by the Constitution, namely, original jurisdiction in certain
enumerated cases.

[351] In the text of the Constitution, the President's power to adjourn
the two houses of Congress in case of a disagreement follows immediately
after his power to convene them on "extraordinary occasions"; and it
has, therefore, been suggested that his power to adjourn them is
confined to cases where they have been "extraordinarily" convened under
the first power. But it is to be observed that the whole of the third
section of Article II. contains an enumeration of separate powers of the
President, recited _seriatim_. The power to _convene_ Congress is one
power; and it extends only to "extraordinary" occasions, because the
Constitution itself, or a law, convenes them at a fixed period, and thus
makes the _ordinary_ occasions. But the power to adjourn the two houses
to a particular time, in cases of disagreement as to the time, is a
separate and general power, because the reason for which it was given at
all applies equally to all sessions. That reason is, that there may be a
peaceful termination of what would otherwise be an endless and dangerous
controversy. Both Hamilton in the Federalist and Judge Story in his
Commentaries have treated this as a separate and general power. (The
Federalist, No. 77. Story on the Constitution, § 1563.)



CHAPTER XIV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--FORMATION OF THE
JUDICIAL POWER.


There now remains to be described the full conception and creation of
the third department of the government, its judicial power.

The distribution of the powers of government, when its subjects are to
sustain no relation to any other sovereignty than that whose
fundamental laws it is proposed to ordain, is a comparatively easy
task. In such a government, when the theoretical division into the
legislative, executive, and judicial functions is once adopted, the
objects to which each is to be directed fall readily into their
appropriate places. All that is necessary is, to see that these
departments do not encroach upon the rights and duties of each other.
There is, at least, no other power, claiming the obedience of the same
people, whose just authority it is necessary to regard, and on whose
proper domain no intrusion is to be permitted.

How different is the task, when a government, either federal or
national, is to be created, for a people inhabiting distinct political
States, whose sovereign power is to remain for many purposes supreme
over their respective subjects; when the individual is to be under
rules of civil duty declared by different public organs; and when the
object is to provide a judicial system through which this very
difference of authority may be made to work out the ends of social
order, harmony, and peace! This difficult undertaking was imposed upon
the framers of the Constitution of the United States, and it was by
far the most delicate and difficult of all their duties. It was
comparatively easy to agree on the powers which the people of the
States ought to confer on the general government, to define the
separate functions of the legislature and the executive, and to lay
down certain rules of public policy which should restrain the States
in the exercise of their separate powers over their own citizens. But
to construct a judicial power within the general government, and to
clothe it with attributes which would enable it to secure the
supremacy of the general Constitution and of all its provisions; to
give it the exact authority that would maintain the dividing line
between the powers of the nation and those of the State, and to give
to it no more; and to add to these a faculty of dispensing justice to
foreigners, to citizens of different States, and among the sovereign
States themselves, with a more even hand and with a more assured
certainty of the great ends of justice than any State power could
furnish,--these were objects not readily or easily to be attained. Yet
they were attained with wonderful success. The judicial power of the
United States, considered with reference to its adaptation to the
purposes of its creation, is one of the most admirable and felicitous
structures that human governments have exhibited.

The groundwork of its formation has been partly described in a
previous chapter, where some of the principles are stated, which had
been arrived at as being necessary to its great purposes. These
principles related to the persons who were to exercise its functions,
and to the jurisdiction or authority which they were to possess. With
respect to the persons who were to exercise the judicial power, the
result that had been reached when the first draft of the Constitution
was to be prepared had fixed the tenure of good behavior for their
office, and had placed their salaries, when once established, beyond
the reach of any power of diminution by the legislature. It had also
been determined that there should be one supreme tribunal, under the
Constitution, and that the legislature should have power to establish
inferior tribunals. But nothing more precise had been arrived at
respecting jurisdiction, than the broad principles which declared that
it should extend to cases arising under laws passed by the general
legislature, and to such other questions as might touch the national
peace and harmony. The committee of detail were to give effect to this
declaration. Their scheme provided, under the first of these heads,
that the jurisdiction should embrace cases arising under the laws of
the United States; and as questions touching the national peace and
harmony, they enumerated all cases affecting ambassadors, other
public ministers, and consuls; impeachments of officers of the United
States; all cases of admiralty and maritime jurisdiction;
controversies between two or more States, excepting such as might
regard territory or jurisdiction; controversies between a State and
citizens of another State, between citizens of different States, and
between a State or the citizens thereof and foreign states, citizens,
or subjects. In cases of impeachment, cases affecting ambassadors,
other public ministers, and consuls, and those in which a State should
be party, they assigned the original jurisdiction to the Supreme
Court. In all the other cases enumerated, the jurisdiction of the
supreme tribunal was to be appellate only, with such exceptions and
regulations as the legislature might make; and the original
jurisdiction was left to be assigned by the legislature to such
inferior tribunals as they might from time to time create. The trial
of all criminal offences, except in cases of impeachment, was to be in
the State where they had been committed, and was to be by jury.
Controversies between States respecting jurisdiction or territory, and
controversies concerning lands claimed under grants of different
States, were to be tried by the Senate, and were consequently excluded
from the judicial power.

This plan, when compared with the full outline of the jurisdiction, as
it was finally established, presented several remarkable defects. In
the first place, it was silent with respect to the important
distinction, familiar to the people of the United States, between
proceedings in equity and proceedings at common law. This distinction,
which extends not only to the forms of pleading, but to the principles
of decision, the mode of trial, and the nature of the remedy, had been
brought by the settlers of most of the Colonies from England, and had
been perpetuated in their judicial institutions. It existed in most of
the States, at the time of the formation of the national Constitution,
and it was, in fact, a characteristic feature of the only system of
judicature which the American people had known, excepting in their
courts of admiralty. Although the institutions of the States differed
in the degree in which they had adopted and followed it, the basis of
their jurisprudence and forms of proceeding was the common law, as
derived from its English sources and modified by their own customs or
legislation, with more or less of that peculiar and more ample relief
which is afforded by the jurisprudence and remedy known in the English
system under the name of equity.

Since the judicial power of the United States was to be exercised over
a people whose judicial habits were thus fixed; since it must, to some
extent, take cognizance of rights that would have to be adjudicated in
accordance with the jurisprudence under which they had arisen; and
since the individuals who would have a title to enter its tribunals
might reasonably demand remedies as ample as a judicature of English
origin could furnish, it was highly expedient that the Constitution
should fully adopt the main features of that judicature. It is quite
true, that a provision in the Constitution extending the judicial
power to "all cases" affecting certain persons or certain rights,
might be regarded by the legislature as a sufficient authority for the
establishment of inferior courts with both a legal and an equitable
jurisdiction, and might be considered to confer such a double
jurisdiction on the supreme tribunal contemplated by the Constitution.
But the text of the Constitution itself would be the source to which
the people of the United States would look, when called upon to adopt
it, for the benefits which they were to derive from it, and there
would be no part of it which they would scrutinize more closely than
that which was to establish the judicial power of the new government.
If they found in it no imperative declaration making it the duty of
Congress to provide for a jurisdiction in equity as well as at law,
and no express adoption of such a jurisdiction for the supreme
tribunal, they might well say that the character of the judicial power
was left to the accidental choice of Congress, or to doubtful
interpretation, instead of being expressly ordained in its full and
essential proportions by the people. If a citizen of one State were to
pursue a remedy in the courts of the Union against a citizen of
another State, or if one State should have a judicial controversy with
another, that would be a very imperfect system of judicature which
should leave the form and extent of the remedy to be determined by the
local law where the process was to be instituted, or which should
confine the relief to the forms and proceedings of the common law. If
the appellate jurisdiction of the supreme national tribunal were to be
exercised over any class of controversies originating in the State
courts, it was extremely important that the Constitution should
expressly ascertain whether suits at law, or suits in equity, or both,
were to be embraced within that appellate power. For these reasons, it
became necessary for the Convention to supply this defect, by
extending the judicial power, both in equity and at law, to the
several cases embraced in it.

Another defect in the report of the committee,--or what was regarded
as a defect when the Constitution was ratified,--and one which the
Convention did not supply, was in the omission of any express
provision for trial by jury in civil cases. Such a provision was
supplied by an amendment proposed by the first Congress that assembled
under the Constitution, and adopted in 1791; but it was regarded by
the framers of the Constitution as inexpedient, on account of the
different construction of juries in the different States, and the
diversity of their usages with respect to the cases in which trial by
jury was used.[352] It is quite possible that, after the Constitution
had declared that the jurisdiction of the national tribunals should
extend to all cases "in law" affecting certain parties or rights,
Congress would not have been at liberty to establish inferior
tribunals for the trial of cases "in law" by any other method than
according to the course of the common law, which requires that the
fact in such cases shall be tried by a jury. But the objection which
afterwards prevailed was connected, as we shall presently see, with
what was regarded as a dangerous ambiguity in the clause of the
Constitution which gave to the Supreme Court its appellate
jurisdiction both as to law and fact.

The plan of the committee of detail contemplated a supreme tribunal
with original jurisdiction over a few of the cases within the judicial
power, and appellate jurisdiction over all the other cases enumerated.
Inquiry was made in the Convention, whether this appellate
jurisdiction was intended to embrace fact as well as law, and to
extend to cases of common law as well as to those of equity and
admiralty jurisdiction. The answer was given, that such was the
intention of the committee, and the jurisdiction of the federal court
of appeals, under the Confederation, was referred to as having been so
construed. The words "both as to law and fact" were thereupon
introduced into the description of the appellate power, by unanimous
consent.[353] Various explanations were subsequently given, when the
Constitution came before the people, of the force and meaning of these
words. The most probable and the most acute of these explanations was
that made by Hamilton in the Federalist,[354] which limited the effect
of the words, in reference to common law cases, to so much cognizance
of the facts involved in a record as is implied in the application of
the law to them by the appellate tribunal. But the truth was, the
words were of very comprehensive import. While they were used in order
to save to the Supreme Court power to revise the facts in equity and
admiralty proceedings, they made no distinction, and imposed upon
Congress no duty to make a distinction, between cases in equity and
admiralty, and cases at common law; and although it might be true,
that in some States the facts in all cases were tried by a jury, and
that in some cases so tried there ought to be a power to revise the
facts, yet it was not conceded that such a power ought to exist over
the verdicts of juries in cases of common law jurisdiction. This
explanation will serve to show the double purpose of the amendment
made in 1791. The people of many of the States required an express
guaranty that trial by jury should be preserved in suits at common
law, and that the facts once tried by a jury should not be re-examined
otherwise than according to the rules of the common law, which have
established certain well-defined limits to the power of an appellate
tribunal concerning the facts appearing to have been found by a
jury.[355]

There was still another omission in the report of the committee, of
great magnitude. They had included in the judicial power cases arising
under the laws of the United States, but they had not embraced cases
arising under the Constitution and under treaties. At the same time,
the Constitution was to embrace not only the powers of the general
government, but also special restrictions upon the powers of the
States; and not only the Constitution itself, but the laws made in
pursuance of its provisions, and all treaties made under the authority
of the United States, were to be the supreme law of the land. This
supremacy could only be enforced by some prescribed action of some
department of the general government. The idea of a legislative
arrest, or _veto_, of State laws supposed to be in conflict with some
provision of the national Constitution, or with a treaty or a law of
the United States, had been abandoned. The conformity, moreover, of
the laws of Congress to the provisions of the Constitution, could only
be determined by the judicial power, when drawn into question in a
judicial proceeding. The just and successful operation of the
Constitution, therefore, required that, by some comprehensive
provision, all judicial cases[356] arising under the Constitution,
laws, or treaties of the United States--whether the question should
grow out of the action of a State legislature, or the action of any
department of the general government--should be brought within the
cognizance of the national judiciary. This provision was added by the
Convention. It completed the due proportions and efficacy of this
branch of the judicial power.

Trial by jury of all criminal offences (except in cases of
impeachment) had been provided for by the committee of detail, and
such trial was to be had in the State where the offence had been
committed. The Convention, in order to secure the same right of a jury
trial in cases where the offence had been committed out of any State,
provided that the trial should be at such place or places as the
Congress might by law have directed.[357]

These additions, with one other which included within the judicial
power all cases to which the United States might be party; the
transfer of the trial of impeachments to the Senate; and the transfer
to the judiciary of controversies between the States respecting
jurisdiction or territory, and controversies respecting land titles
claimed under the grants of different States,--were the principal
changes and improvements made in the plan of the committee.

The details of the arrangement will perhaps fail to interest the
general reader. Yet I cannot but think that to understand the purpose
and operation of this department of the national government would be a
very desirable acquisition for any of my readers not already possessed
of it; and having completed the description of the mode in which the
judicial power was constructed, I shall conclude this part of the
subject with a brief statement of its constitutional functions.

One of the leading purposes for which this branch of the government
was established, was to enable the Constitution to operate upon
individuals, by securing their obedience to its commands, and by
protecting them in the enjoyment of the rights and privileges which it
confers. The government of the United States was eminently intended,
among other purposes, to secure certain personal rights, and to exact
certain personal duties. The Constitution confers on the general
government a few special powers, but it confers them in order that the
general government may accomplish for the people of each State the
advantages and blessings for which the State governments are presumed
to be, and have in fact proved to be, inadequate. It lays upon the
governments and people of the States certain restrictions, and it lays
them for the protection of the people against an exercise of State
power deemed injurious to the general welfare. The government of the
United States, therefore, is not only a government which seeks to
protect the welfare and happiness of the people who live under it, but
it is so constructed as to make its citizens directly and individually
its subjects, exacting of them certain duties, and securing to them
certain rights. It comes into this relation by reason of its supreme
legislative power over certain interests, and the supreme authority of
its restrictions upon the powers of the States; and it is enabled to
make this relation effectual through its judicial department, which
can take cognizance of every duty that the Constitution exacts and of
every right that it confers, whenever they have assumed a shape in
which judicial power can act upon them. Let us take, as illustrations
of this function of the national judiciary, a single instance of the
obedience required by the Constitution, and also one of a right which
it protects. The Constitution empowers Congress to lay and collect
duties; which, when they are laid and incurred, become a debt due from
the individual owner of the property on which they are assessed to the
general government. Payment, in disputed cases, might have been left
to be enforced by executive power; but the Constitution has interposed
the judicial department, as the more peaceful agent, which can at once
adjudicate between the government and the citizen, and compel the
payment of what is found due. Again, the Constitution provides that no
State shall pass any law impairing the obligation of contracts. An
individual supposing himself to be aggrieved by such a law might have
been left to obtain such redress as the judicial or legislative
authorities of the State might be disposed to give him; but the
Constitution enables him finally to resort to the national judiciary,
which has power to relieve him against the operation of the law upon
his personal rights, while the law itself may be left upon the
statute-book of the State.

But while the judicial department of the general government was thus
designed to enforce the duties and protect the rights of individuals,
it is obvious that, in a system of government where such rights and
duties are to be ascertained by the provisions of a fundamental law
framed for the express purpose of defining the powers of the general
government and of each of its departments, and establishing certain
limits to the powers of the States, the mere act of determining the
existence of such rights or duties may involve an adjudication upon
the question, whether acts of legislative or executive power are in
conformity with the requirements of the fundamental law. On the one
hand, the judicial department is to see that the legislative authority
of the Union does not exact of individuals duties which are not within
its prescribed powers, and that no department of the general
government encroaches upon the rights of any other, or upon the rights
of the States; and, on the other hand, it has to see that the
legislative authority of the States does not encroach upon the powers
conferred upon the general government, or violate the rights which the
Constitution secures to the citizen. All this may be, and constantly
is, involved in judicial inquiries into the rights, powers, functions,
and duties of private citizens or public officers; and therefore, in
order that the judicial power should be able effectually to discharge
its functions, it must possess authority, for the purposes of the
adjudication, to declare even an act of legislation to be void, which
conflicts with any provision of the Constitution.

There were great differences of opinion in the Convention upon the
expediency of giving to the judges, as expositors of the Constitution,
power to declare a law to be void;[358] and undoubtedly such a power,
if introduced into some governments, would be legislative in its
nature, whether the persons who were to exercise it should be called
judges, or be clothed with the functions of a council of revision. But
under a limited and written constitution, such a power, when given in
the form and exercised in the mode provided for in the Constitution of
the United States, is strictly judicial. This is apparent from the
question that is to be determined. It arises in a judicial controversy
respecting some right asserted by or against an individual; and the
matter to be determined is whether an act of legislation, supposed to
govern the case as law, is itself in conformity to the supreme law of
the Constitution. In a government constituted like ours, this question
must be determined by some one of its departments. If it be left with
the executive to decide finally what laws shall be executed, because
they are consistent with the Constitution, and what laws shall be
suspended, because they violate the Constitution, this practical
inconvenience may arise, namely, that the decision is made upon the
abstract question, before a case to be governed by the law has arisen.
If the legislature were empowered to determine, finally, that the laws
which they enact are constitutional, the same practical difficulty
would exist; and the individual, whose rights or interests may be
affected by a law, when put into operation, would have no opportunity
to be heard upon what in our form of government is a purely juridical
question, on which every citizen should be heard, if he desires it,
before the law is enforced in his case. On the other hand, if the
final and authoritative determination is postponed until the question
arises in the course of a judicial controversy respecting some right
or duty or power of an individual who is to be affected by the law, or
who acts under it, the question itself is propounded not in the
abstract, but in the concrete; not in reference to the bearing of the
law upon all possible cases, but to its bearing upon the facts of a
single case. In this aspect, the question is of necessity strictly
judicial. To withhold from the citizen a right to be heard upon the
question which in our jurisprudence is called the constitutionality of
a law, when that law is supposed to govern his rights or prescribe his
duties, would be as unjust as it would be to deprive him of the right
to be heard upon the construction of the law, or upon any other legal
question that arises in the cause. The citizen lives under the
protection, and is subject to the requirements, of a written
fundamental law. No department of the national, or of any State
government, can lawfully act otherwise than according to the powers
conferred or the restrictions imposed by that instrument. If the
citizen believe himself to be aggrieved by some action of either
government which he supposes to be in violation of the Constitution,
and his complaint admit of judicial investigation, he must be heard
upon that question, and it must be adjudicated, or there can be no
administration of the laws worthy of the name of justice.

It is interesting, therefore, to observe how this function of the
judicial power gives to the operation of the government a
comparatively high degree of simplicity, exactness, and directness,
notwithstanding the refined and complex character of the system which
its framers were obliged to establish. To judge of the merits of that
system, in this particular, it is necessary to recur again to those
alternative measures, to which I have frequently referred, and which
lay directly in their path. One of these measures was that of a
council of revision, to be charged with the duty of arresting improper
laws. Besides the objection which has been already alluded to,--that
the question of the conformity of a law to the Constitution would have
thus been finally passed upon in the abstract,--such an institution,
although theoretically confined to this inquiry, would have become
practically a third legislative chamber; for it would inevitably have
happened that considerations of expediency would also have found their
way into the deliberations of a numerous body appointed to exercise a
revisory power over all acts of legislation. There is no mode in which
the question of constitutional power to enact a law can be determined,
without the influence of considerations of policy or expediency, so
effectually, as by confining the final determination to the special
operation of the law upon the facts of an individual case. When the
tribunal that is to decide this question is, by the very form in which
it is required to act, limited to the bearing of the law upon some
right or duty of an individual placed in judgment by a record, it is
at once relieved of the responsibility, and in a great degree freed
from the temptation, of considering the policy of the legislation. If,
therefore, it be conceded--as every one will concede--that, whatever
public body is specially instituted for the purpose of submitting the
acts of the legislature to the test of the Constitution, it should
neither possess the power, nor be exposed to the danger, of invading
the legislative province, by acting upon motives of expediency, it
must be allowed that the framers of the Constitution did wisely in
rejecting the artificial, cumbrous, and hazardous project of a council
of revision. The plan of such a council was, it is true, much favored,
and indeed insisted upon, by some of the wisest men in the Convention.
But it was urged at a time when the negative that was to be given to
the President had not been settled, and when he had not been made
sufficiently independent of the legislature to insure his unfettered
employment of the negative that might be given to him. The purpose of
the proposed council of revision was to strengthen his hands, by
uniting the judges with him in the exercise of the "veto." This would
have given to the judges a control both over the question of
constitutional power and the question of legislative policy. As to the
latter, it became unnecessary, as well as inexpedient, to unite the
judges with the President, after he had been clothed with a suitable
negative, and after his election had been taken from the legislature;
and as to the former question, the final arrangement of the judicial
power made it equally unnecessary to form the judges into a council
of revision, since, if the President should fail to arrest an
unconstitutional law, when presented for his approval, it could be
tested in the ordinary course of judicial proceedings after it had
gone into operation.

But the conformity of laws of Congress to the Constitution was not all
that was to be secured. Some prudent and effectual means were to be
devised, by which the acts of the State governments could be subjected
to the same test. The project of submitting the laws of the States to
some department of the general government, while they were in the
process of being enacted, or before they could have the form of law,
was full of inconvenience and hazard. It could not have been attempted
without an injury to State pride, that would have aroused an
inextinguishable opposition to the national authority, even if the
plan could once have been assented to. Yet there was no other
alternative, unless the judicial power of the general government
should be so constructed as to enable it to take the same cognizance
of a constitutional question, when arising upon the law of a State,
that it was to take of such a question when arising upon an act of
Congress. The same necessity would exist in the one case, as in the
other, for a power within the general government to give practical
effect to that supremacy which the Constitution was to claim for
itself, for treaties, and for the laws passed in pursuance of its
provisions. All the restrictions which the Constitution was to lay
upon the powers of the States would be nugatory, if the States
themselves were to be the final judges of their meaning and operation.
This transcendent power of interpretation and application, so
logically necessary, and yet so certain to wound and irritate, if
exercised by direct interference, could be wielded, without injurious
results, through the agency of judicial forms, by a judicial
investigation into personal rights, when affected by the action of a
State government, just as it could be in reference to the acts of any
department of the national government that could be made the subject
of proceedings in a court of justice.

The relation of the judicial power to the execution of treaties rests
upon the same grounds of paramount necessity. It is not merely for the
sake of uniformity of interpretation, that the national judiciary is
authorized to decide finally all cases arising under treaties,
although uniformity of interpretation is essential to the preservation
of the public faith; but it is in order that the treaty shall be
executed, by being placed beyond the hazards both of wrong
construction and of interested opposition. The memorable instance of
the Treaty of Peace, the absolute failure of which in point of
execution, before the adoption of the Constitution, has been described
in the first volume of this work, presents the great illustration, in
our constitutional history, of the only mode in which the supremacy of
treaty stipulations as law can be maintained in our system of
government. "The United States in Congress assembled," under the
Confederation, had the same exclusive authority to make treaties that
is now possessed by the President and the Senate under the
Constitution, and a treaty was in theory as obligatory then, upon the
separate States and their inhabitants, as it is now. But it has been
found to be an axiom of universal application in the art of
government, that a supremacy which is merely theoretical is no real
supremacy. If a stipulation made by the proper authority with a
foreign government is to have the force of law, requiring the
obedience of individuals and of all public authorities, its execution
must be committed to a judiciary acting upon private rights without
the hinderance or influence of adverse legislation.

There is another branch of the judicial power which illustrates in a
striking manner the object embraced in the preamble of the
Constitution, where the people of the United States declare it to be
their purpose "to establish justice." This is found in the provision
for a special jurisdiction over the rights of persons bearing a
certain character. Like almost everything else in the Constitution,
this feature of the judicial power sprang from a necessity taught by
previous and severe experience. Reasoning from the mere nature of such
a government as that of the United States, it might seem that the
judicatures of the separate States would be sufficient for the
administration of justice in all cases in which private rights alone
are concerned, and by which no power or interest of the general
government, and no provision of the general Constitution, is likely to
be affected. But we find in the judicial power of the United States a
particular jurisdiction given on account of the mere civil characters
of the parties to a controversy; and its existence there is to be
accounted for upon other than speculative reasons. From the
Declaration of Independence to the day of the ratification of the
Constitution, the judicial tribunals of the States had been unable to
administer justice to foreigners, to citizens of other States, to
foreign governments and their representatives, and to the governments
of their sister States, so as to command the confidence and satisfy
the reasonable expectations of an enlightened judgment. Hence the
necessity for opening the national courts to these various classes of
parties, whose different positions may now be briefly considered.

In a country of confederated States, each possessing a full power of
legislation, it could not but happen--as it did constantly happen in
this Union before the adoption of the Constitution--that the
determination of controversies between citizens of the State where the
adjudication was to be had, and citizens of another State, would be
exposed to influences unfavorable to the ends of justice. In truth,
one of the parties in such a controversy was virtually an alien, in
the tribunal which he was obliged to enter; for although the Articles
of Confederation undertook to secure to the free inhabitants of each
State all the privileges and immunities of free citizens in the
several States, yet it is obvious that the efficacy of such a
provision must depend almost wholly upon the spirit of the tribunals,
and upon their capacity to give effect to such a declaration of
rights, against a course of State policy or the positive enactments of
a State code. The chief difficulty of the condition of affairs
existing before the Constitution lay not so much in the hazards of a
violation of principle through local prejudice, or the superior force
of local policy or legislation,--although these influences were always
powerful,--as in the fact that, when these influences were likely to
be most active, or were most feared, there was no tribunal to which
resort could be had, and which was known to be beyond their operation
and their reach. The articles of compact between the States had
intended to remove from the citizens of the different States the
disabilities of practical alienage under which they would have stood
in the tribunals of each other. But with that mere declaration those
articles stopped. If the litigant saw that the local law was likely to
be administered to him as if he were a foreigner, or feared that the
scales of justice would not be held with an impartial hand, he could
go nowhere else for a decision. This was a great evil; for much of the
value of every judicature depends upon the confidence it inspires.

There were still other and perhaps stronger reasons for creating an
independent jurisdiction, to be resorted to by foreigners, in
controversies with citizens of the States. No clause in the
Constitution was to make them equal in rights with citizens, and for
the very reason of their alienage, therefore, it was necessary to
give them access to tribunals organized under the authority of the
general government, which would be responsible to foreign powers for
the treatment that their subjects might receive in the United States.
Ambassadors, too, and other foreign ministers, would not only be
aliens, but would possess the character of representatives of their
sovereigns; and consuls would be the public agents of their
governments, although not bearing the diplomatic character. These
functionaries were therefore permitted to resort to the judicial power
of the United States; and for the purpose of more effectually
protecting the national interests that might be involved in their
personal or official relations, original jurisdiction was given to the
Supreme Court in all cases affecting them.

In addition to these, there were other controversies, which, as we
have seen, were included within the judicial power of the United
States, on account of the character of the parties; namely, those to
which the United States might be a party; those to which a State of
the Union might be a party, where the opposite party was another State
of the Union, or a citizen of another State of the Union, or a foreign
state or its citizens or subjects; and those between citizens of a
State of the Union, and foreign states, citizens, or subjects.
Finally, controversies between citizens of the same State claiming
lands under grants of different States were placed under the same
jurisdiction for similar reasons;--because the State tribunals could
not be expected to afford that degree of impartiality which the
circumstances of these several cases required.

There remains only one other branch of the jurisdiction conferred by
the Constitution on the tribunals of the United States which it is
necessary to notice; namely, the admiralty and maritime jurisdiction.
With respect to the criminal jurisdiction in admiralty, in cases of
piracies and felonies committed on the high seas, and the prize
jurisdiction, the Articles of Confederation had given to the Congress
the exclusive power of appointing courts for the trial of the former,
and for hearing and finally determining appeals in all cases of
capture. Such appeals were taken from the State courts of
admiralty,--tribunals which also possessed and exercised a civil
jurisdiction corresponding to that of the admiralty in England, but in
practice somewhat more extensive. When the Constitution was framed, it
was perceived to be expedient, on account of the relation of maritime
commerce to the intercourse of the people of the United States with
foreign nations, or to the intercourse of the people of different
States with each other, to give the whole civil as well as criminal
jurisdiction in admiralty, and the entire prize jurisdiction, original
as well as appellate, to the government of the Union. This was
effected by the comprehensive provision, which gives the judicial
power cognizance of "all cases of admiralty and maritime
jurisdiction"; expressions which have often been, and are still likely
to be, the subject of much forensic controversy with respect to the
particular transactions, of a civil nature, intended to be embraced
in the jurisdiction, but in reference to which there is nothing in the
known proceedings of the Convention, other than what is to be inferred
from the language selected, that affords any special evidence of the
intention of the framers of the Constitution.

FOOTNOTES:

[352] Elliot, V. 550.

[353] Elliot, V. 483.

[354] No. 81.

[355] See the seventh Amendment.

[356] By "cases arising under the Constitution," &c. the framers of
that instrument did not mean all cases in which any department of the
government might have occasion to act under provisions of the
Constitution, but all cases _of a judicial nature_; that is, cases
which, having assumed the form of judicial proceedings between party
and party, involve the construction or operation of the Constitution
of the United States. Elliot, V. 483.

[357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3.

[358] Elliot, V. 429.



CHAPTER XV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF
RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM
SERVICE.


We now come to a class of provisions designed to place the people of
the separate States in more intimate relations with each other, by
removing, in some degree, the consequences that would otherwise flow
from their distinct and independent jurisdictions. This was to be done
by causing the rights and benefits resulting from the laws of each
State to be, for some purposes, respected in every other State. In
other words, by the establishment and effect of certain exceptions,
the general rule which absolves an independent government from any
obligation to regard the law, the authority, or the policy of another
government was, for some purposes, to be obviated between the States
of the American Union.

To some extent, this had been attempted by the Articles of
Confederation, by providing,--first, that the free inhabitants of each
of the States (paupers, vagabonds, and fugitives from justice excepted)
should be entitled to all privileges and immunities of free citizens in
the several States; and that the people of each State should have free
ingress and regress to and from any other State, and the same
privileges of trade and commerce as its inhabitants;--secondly, that
fugitives from justice charged with certain enumerated crimes, and
escaping from one State into another, should be given up, on demand of
the executive of the State from which they had escaped;--and thirdly,
that full faith and credit should be given in each State to the
records, acts, and judicial proceedings of the courts and magistrates
of every other State.

The Confederation, however, was a "firm league of friendship with each
other," entered into by separate States, and the object of the
provisions above cited was "the better to secure and perpetuate mutual
friendship and intercourse among the people" of those States. One of
the purposes of the Constitution, on the other hand, was "to form a
more perfect Union"; and we are therefore to expect to find its
framers enlarging and increasing the scope of these provisions, and
giving to them greater precision and vigor. We shall see, also, that
they made a very important addition to their number.

The first thing that was done was to make the language of the
Confederation respecting the privileges of general citizenship
somewhat more precise. The Articles of Confederation had made "the
free _inhabitants_ of each State," with certain exceptions, entitled
to the privileges and immunities of "free _citizens_ in the several
States."[359] It is probable that these two expressions were intended
to be used in the same sense, and that by "free inhabitants" of a
State was meant its "free citizens." The framers of the Constitution
substituted the latter expression for the former, and thus designated
more accurately the persons who are to enjoy the privileges and
immunities of free citizens in other States besides their own.

In the next place, while the Articles of Confederation declared that
full faith should be given in each State to the acts, records, and
judicial proceedings of every other State, they neither prescribed the
mode in which the proof was to be made, nor the effect when it had
been made. The committee of detail, in preparing the first draft of
the Constitution, merely adopted the naked declaration of the
articles. The Convention added to it the further provision, which
enabled Congress to prescribe by general laws the manner in which such
acts, records, and proceedings shall be proved, and the effect to be
given to them when proved.[360]

With respect to fugitives from justice, the Articles of Confederation
had specified persons "charged with treason, felony, or other high
misdemeanor in any State," as those who were to be given up by the
States to each other. For the purpose of avoiding the ambiguity of
this language, the provision was made to embrace all other crimes, as
well as treason and felony.[361]

Besides correcting and enlarging these provisions, the framers of the
Constitution introduced into the system of the Union a special
feature, which, in the relations _of the States to each other_, was
then entirely novel, although not without precedent. I refer, of
course, to the clause requiring the extradition of "fugitives from
service," who have escaped from one State into another.

In describing the compromises of the Constitution relating to slavery,
I have not placed this provision among them, because it was not a part
of the arrangement by which certain powers were conceded to the Union
by one class of States, in consideration of certain concessions made
by another class. It is a provision standing by itself, in respect to
its origin, about which there is some popular misapprehension. Its
history is as follows.

In many of the discussions that had taken place, in preparing the
outline of the government that was sent to the committee of detail, a
good deal of jealousy had been felt and expressed by some of the
Southern members, not only with regard to the relative weight of their
States in the representative system, but also with respect to the
security of their slave property. Slavery, although it had existed in
all of the States, and although there still remained in all of them
excepting Massachusetts some persons of the African race still held in
that condition, was likely soon to disappear from the States of New
Hampshire, Rhode Island, Connecticut, New York, and Pennsylvania,
under changes that would be introduced by their constitutions or by
statutory provision. In the whole of New England, therefore, and in
nearly all of the Middle States excepting Maryland, if the principles
of the common law and of the law of nations were to be applied to such
cases, the relation of master and slave, existing under the law of
another State, could not be recognized, and there could be no means of
enforcing a return to the jurisdiction which gave to the master a
right to the custody and services of the slave. At the same time, it
was apparent that, in the five States of Maryland, Virginia, North
Carolina, South Carolina, and Georgia, slavery would not only be
likely to continue for a very long period of time, but that this form
of labor constituted, and would be likely long to constitute, a
necessary part of their social system. The theory on which the
previous Union had been framed, and on which the new Union now
intended to be consummated was expressly to be founded, was, that the
domestic institutions of the States were exclusively matters of State
jurisdiction. But if a relation between persons, existing by the law
of a particular State, was to be broken up by an escape into another
State, by reason of the fact that such a relation was unknown to or
prohibited by the law of the place to which the party had fled, it
was obvious that this theory of the Union would be of very little
practical value to the States in which such a relation was to exist,
and to be one of great importance. If the territory of every State in
which this relation was not to be recognized, were to be made an
asylum for fugitives, the right of the master to the services of the
slave would be wholly insecure.

It was in reference to this anticipated condition of things, that
General Pinckney of South Carolina, at the time when the principles
that were to be the basis of the Constitution were sent to the
committee of detail,[362] gave notice, that, unless some provision
should be inserted in their report to prevent this consequential
emancipation, he should vote against the Constitution. Considering the
position and influence of this gentleman, his declaration was
equivalent to a notice that, without such a provision, the
Constitution would not be accepted by the State which he represented.
Still, the committee of detail omitted to make any such special
provision in their report of a Constitution, and inserted only a
general article that the _citizens_ of each State should be entitled
to all the privileges and immunities of citizens in the several
States.[363] General Pinckney was not satisfied with this, and renewed
his demand for a provision "in favor of property in slaves."[364] But
the article was adopted, South Carolina voting against it, and the
vote of Georgia being divided.

As soon, however, as the next article was taken up, which required the
surrender of fugitives from justice escaping from one State into
another, the South Carolina members moved to require "fugitive slaves
and servants to be delivered up, like criminals."[365] Objection was
made, that this would require the executive of the State to do it at
the public expense,[366] and that there was no more propriety in the
public seizing and surrendering a slave or a servant, than a
horse.[367] The proposition was then withdrawn, in order that a
particular provision might be framed, apart from the article requiring
the surrender of fugitives from justice. That article was then adopted
without opposition.[368]

For a provision respecting fugitives from service, the movers had two
remarkable precedents to which they could resort, and which had
settled the correctness of the principle involved. Negro slavery, as
well as other forms of service, had existed in the New England
Colonies at a very early period. In 1643, the four Colonies of
Massachusetts Bay, Plymouth, Connecticut, and New Haven had formed a
confederation, in which, among other things, they had mutually
stipulated with each other for the restoration of runaway "servants";
and there is indubitable evidence, that African slaves, as well as
other persons in servitude, were included in this provision.[369]

The other precedent was found in the Ordinance which had just been
adopted by Congress for the settlement and government of the Territory
northwest of the river Ohio; in which, when legislating for the
perpetual exclusion of "slavery or involuntary servitude," a similar
provision was made for the surrender of persons escaping into the
Territory, "from whom labor or service is lawfully claimed in any one
of the original States."

In making this provision, the early colonists of New England, and the
Congress of the Confederation, had acted upon a principle directly
opposite to the objection that was raised in the formation of the
Constitution of the United States. When it was said in the Convention,
that the public authority ought no more to interfere and surrender a
fugitive slave or servant than a horse, it was forgotten that, by the
principles of the common law and the comity of nations, not only is
property in movable things recognized by civilized states, but a
remedy is afforded for restitution. But in the case of a fugitive
person, from whom, by the law of the community from which he escapes,
service is due to another, the right to the service is not recognized
by the common law or the law of nations, and no means exist of
enforcing the duties of the relation. If the case is to be met at all,
therefore, it can only be by a special provision, in the nature of a
treaty, which will so far admit the relation and the claim of service,
as to make them the foundation of a right to restore the individual to
the jurisdiction of that law which recognizes and enforces its duties.

This was precisely what was done by the New England Confederation of
1643, and the Ordinance of 1787; and it was what was now proposed to
be done by the Constitution of the United States. It was regarded at
the time by the Southern States as absolutely necessary to secure to
them their right of exclusive control over the question of
emancipation,[370] and it was adopted in the Convention by unanimous
consent,[371] for the express purpose of protecting a right that would
otherwise have been without a satisfactory security. A proper
understanding of the grounds of this somewhat peculiar provision is
quite important.

The publicists of Christendom are universally agreed, that independent
nations are under no positive obligation to support the institutions,
or to enforce the municipal laws, of each other. So far does this
negative principle extend, that the general law of nations does not
even require the extradition of fugitive criminals, who have escaped
from one country into another. If compacts are made for this purpose,
they rest entirely upon comity, and upon those considerations of
public policy which make it expedient to expel from our own borders
those who have violated the great laws on which the welfare of society
depends; and such compacts are usually limited to those offences which
imply great moral as well as civil guilt. The general rule is, that a
nation is not obliged to surrender those who have taken sanctuary in
its dominions. At the same time, every political state has an
undoubted right to forbid the entry into its territories of any person
whose presence may injure its welfare or thwart its policy. No
foreigner, whether he comes as a fugitive escaping from the violated
laws of another country, or comes for the innocent purposes of travel
or residence, can demand a sanctuary as a matter of right. Whether he
is to remain, or not to remain, depends entirely upon the discretion
of the state to which he has resorted;--a discretion that is regulated
by a general principle, among Christian nations, while at the same
time the general principle is subject to such exceptions as the
national interest may require to be established.

Slavery, or involuntary servitude, being considered by public law as
contrary to natural right, and being a relation that depends wholly on
municipal law, falls entirely within the principle which relieves
independent nations of the obligation to support or to enforce each
other's laws. It has not, therefore, been customary for states which
have no peculiar connection, to surrender fugitives from that
relation, or to do anything to enforce its duties. But such fugitives
stand upon a precise equality with all other strangers who seek to
enter a society of which they are not members. If the welfare of the
society demands their exclusion, or if it may be promoted by a
stipulation that they shall be taken back to the place where their
service is lawfully due, the right to exclude or to surrender them is
perfect; for every political society has the moral power, and is under
a moral obligation, to provide for its own welfare. If such
stipulations have not usually been made among independent nations,
their absence may prove that the public interest has not required
them, but it does not prove the want of a right to make them.

Each of the American States, when its people adopted the national
Constitution, possessed the right that belongs to every political
society, of determining what persons should be permitted to enter its
territories. Each of them had a complete right to judge for itself how
far it would go, in recognizing or aiding the laws or institutions of
the other States. It is obvious, moreover, that States which are in
general independent of each other, but which propose to enter into
national relations with each other under a common government, for
certain great political and social ends, may have reasons for giving a
particular effect to each other's laws, or for sustaining each other's
institutions, which do not operate with societies not standing in such
a relation; and that these reasons may be of a character so grave and
important, as to amount to a moral obligation. Thus independent and
disconnected nations are ordinarily under no obligation to support or
guarantee each other's forms of government. But the American States,
in entering into the new Union under their national Constitution,
found that a republican form of government in every State was a thing
so essential to the welfare and safety of all of them, as to make it
both a necessity and a duty for all to guarantee that form of
government to each other. In the same way, although nations in
general do not recognize the relation of master and servant prevailing
by the law of another country, so far as to stipulate for the
surrender of persons escaping from that relation, the American States
found themselves surrounded by circumstances so imperative, as to make
it both a necessity and a duty to make with each other that
stipulation. These circumstances I shall now briefly state.

I have already referred to all the known proceedings in the Convention
on this subject, and have stated to what extent those proceedings
justify the opinion that the Constitution could not have been formed
without this provision.[372] But there is higher evidence both of its
necessity and its propriety than anything that may have been said by
individuals or delegations. The States were about to establish a more
perfect Union, under a peculiar form of national government, the
effect of which would necessarily bring them into closer relations
with each other, multiplying greatly the means and opportunities of
intercourse, and enabling them to act on each other's internal
condition with an influence that would be nearly irresistible, unless
it should be arrested by constitutional barriers. Among the features
of their internal condition, the relation of master and servant, or
the local institution of servitude, was one that must either be placed
under national cognizance, or be left exclusively to the local
authority of each State. There was no middle or debatable ground,
which it could with safety be suffered to occupy. The African race,
although scattered throughout all of the States, was placed in very
different circumstances in different parts of the country. There could
have been no national legislation with respect to that race,
concerning the time or mode of emancipation, the tenure of the
master's right, or the treatment of the slave, that would not have
been forced to adapt itself to an almost endless variety of
circumstances in different localities. At the same time, it was one of
the fundamental principles on which the whole Constitution was
proposed to be founded, that, where the national authority could not
furnish a uniform rule, its legislative power was not to extend.
Whatever required one rule in Massachusetts and another rule in
Virginia, for the exigencies of society, was necessarily left to the
separate authority of the respective States. It was upon matters on
which the States could not legislate alike, but on which the national
power could furnish a safe and advantageous uniform rule, that the
want of a national Constitution was felt, and for these alone was its
legislative power to be created.

We may suppose, then, that the framers of the Constitution had sought
to bring the relation of master and servant, or the condition of the
African race, within the States, under the cognizance of national
legislation; and we may imagine, for the purposes of the argument,
that consent had been given by every one of the States. The power
must have remained dormant, or its exercise would have been positively
mischievous. It never could have been exercised beneficially for
either of the two races; not only because it could not have followed
any uniform system, but because the confusions and jealousies which
must have attended any attempt to legislate specially, must either
have totally obstructed the power, or must have made its exercise
absolutely pernicious. These consequences, which the least reflection
will reveal, may serve to show us, far better than any declarations or
debates, why the framers of the Constitution studiously avoided
acquiring any power over the institution of slavery in the
States;--why the representatives of one class of States could not have
consented to give, and the representatives of another class could
never have desired to obtain, such a power for the national
Constitution.

But it may be asked,--and the question is often prompted by a feeling
of pity towards individual cases of hardship,--Why did not the framers
of the Constitution content themselves with the negative position,
which leaves the institution of slavery to the uncontrolled direction
of every State in which it is found? Why did they establish a rule
that obtains nowhere else among distinct communities, and require that
the fugitive from this relation of a purely local character, who has
committed no crime, and has fled only to acquire a natural liberty,
shall be restored to the dominion of the local law which declares him
to be a slave? Why should the States which had abolished, or were
about to abolish, this relation, consent to the use of force within
their own territories, for the purpose of upholding the relation in
other States? These questions are pertinent to the estimate which
mankind may be called upon to form concerning the provisions of our
national Constitution, and they admit of an answer.

The most material answer to them is, that, without some stipulation on
the part of the States where slavery was not to exist that their free
territory should not be made the means of a practical interference
with the relation in other States, the mere concession of the abstract
principle that slavery was to be exclusively under the control of
State authority would have been of no real value to any one of the
States, or to any of their inhabitants, of either race. But some
active security for this principle was of the utmost importance, not
merely as a concession which would secure the formation of the new
Union, but as a means to secure the beneficent working of the
Constitution after its acceptance had been obtained. It was as
important to the black race as it was to the whites; for it is not to
be doubted, that the continuance of a division into separate States,
and the firm maintenance of an exclusive local authority over the
domestic relations of their inhabitants, have been the cause, under
the Divine Providence, of a far higher civilization, and consequently
of a far better condition of the subjected race, than could have been
attained in the same localities if the States had been in all respects
resolved into one consolidated republic.

Let the reader spread before him the map of the thirteen republics of
1787, and mark upon each of them the relative numbers of their white
and colored inhabitants, and then efface the boundaries of the States.
Let him imagine all legislative power, all the superintending care of
government, withdrawn into a central authority, whose seat must have
been somewhere near the centre of the free white population. Let him
observe how that population must have tended away from the regions
where the labor of slaves would be most productive, and how dense the
slave populations must there have become. All that now constitutes the
pride of men in their separate State, that induces to residence and
makes it the home of their affections, would have passed away; and at
the same time, vast tracts of wonderful fertility must have retained
the African, and with him scarcely any white man but the speculator,
the overseer, and a solitary tradesman. Into such regions as those,
the national authority could not have penetrated with success.
Legislation would have wanted the necessary machinery, by which to
reach and elevate the condition of society at such remote extremities
from the centre. A more than Russian despotism would not have sufficed
to carry the authority of government and the restraints of law into
communities so depopulated of freemen, so filled with slaves, and so
far removed from the seat of power.

But now let the same map be again unfolded, with all the lines that
mark the distinct sovereignties of the States. In each of them there
is a complete and efficient government. Each has its history, unbroken
since the first settlers laid the foundations of a State. In each
there is a centre of civilization, a source of law, and the public
conscience of an organized self-governing community. Each of them can
act, and does act, upon the condition of the African race within its
own limits, according to its own judgment of the exigencies of the
case; and it is a fact capable of easy verification, that, in the
progress of three quarters of a century, this local power has effected
for that race what no national legislature could have accomplished.
For, if we look back to the period when the Constitution of the United
States was adopted, and suppose it to have acquired the means of
acting on the institution of slavery within the States, we shall see
that, if the national authority had approached the subject of
emancipation at all, it must have applied the same rule in South
Carolina as in Pennsylvania, and at the same time. But the
emancipation of the half a million of slaves held in widely different
proportions in the various subdivisions of the country, or of their
still more numerous descendants, by a single and uniform measure
comprehending them all, would at no time since the Constitution was
adopted have been a merciful or defensible act. Nothing could have
remained, therefore, for the national power to do, but to attempt such
legislation as might tend to regulate and ameliorate the condition of
servitude; and such legislation must have been wholly ineffectual, and
would soon have been abandoned, or been superseded by schemes that
must have increased the evils which they aimed to remove.

In thus placing a high value upon the exclusive power of the separate
States over this the most delicate and embarrassing of all the social
problems involved in their destiny, I have not forgotten that, since
the adoption of the national Constitution, nine slave States have been
added to the Union, and that the slaves have increased to more than
three millions. This increase, however, has not been in a greater
_ratio_ than that of the white population, nor greater than it must
have been under any form of polity which the thirteen original States
might have seen fit to adopt in the year 1787, unless that polity had
had a direct tendency to restrain the growth of the country, and to
prevent the settlement of new regions.[373] As it is, it is to be
remembered that, wherever the institution of slavery has gone, there
has gone with it the system of State government, the power and
organization of a distinct community, and consequently a better
civilization than could have been the lot of distant provinces of a
great empire, or distant territories of a consolidated republic.

These considerations will account for that apparent inconsistency
which has sometimes attracted the attention of those who view the
institutions of the United States from a distance, and without a
sufficient knowledge of the circumstances in which they originated.
It has been occasionally made a matter of reproach, that a people who
fought for political and personal freedom, who proclaimed in their
most solemn papers the natural rights of man, and who proceeded to
form a constitution of government that would best secure the blessings
of liberty to themselves and their posterity, should have left in
their borders certain men from whom those rights and blessings are
withheld. But in truth the condition of the African slaves was neither
forgotten nor disregarded by the generation who established the
Constitution of the United States; and it was dealt with in the best
and the only mode consistent with the facts and with their welfare.
The Constitution of the United States does not purport to secure the
blessings of liberty to all men within the limits of the Union, but to
the people who established it, and their posterity. It could not have
done more; for the slaveholding States could not, and ought not, to
have entered a Union which would have conferred freedom upon men
incapable of receiving it, or which would have required those States
to surrender to a central and insufficient power that trust of custody
and care which, in the providence of God, had been cast upon their
more effectual local authority. The reproach to which they would have
been justly liable would have been that which would have followed a
desertion of the duty they owed to those who could not have cared for
themselves, and whose fate would have been made infinitely worse by a
consolidation of all government into a single community, or by an
attempt to extend the principles of liberty to all men. The case is
reduced, therefore, to the single question, whether the people of the
United States should have foregone the blessings of a free republican
government, because they were obliged by circumstances to limit the
application of the maxims of liberty on which it rests. On this
question, they may challenge the judgment of the world.

FOOTNOTES:

[359] See and compare Art. IV. of the Confederation and Art. IV. § 2
of the Constitution.

[360] So far as the proceedings in the Convention are to be regarded
as a guide to construction, it appears clearly that the clause which
empowers Congress to "prescribe the manner in which such acts,
records, and proceedings shall be proved, _and the effect thereof_,"
was intended to give a power to declare the effect of the acts,
records, and judicial proceedings of any State, when offered in
evidence in another State, as well as to prescribe the mode of proving
them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion
on this clause in Story's Commentaries, §§ 1302-1313.

[361] Elliot, V. 487.

[362] July 23d. Elliot, V. 357.

[363] Art. XIV. of the report of the committee of detail.

[364] These are the words of Mr. Madison's Minutes. Elliot, V. 487.
This was on the 26th of August.

[365] Madison, _ut supra_. The motion was made by Butler and Pinckney,
according to Mr. Madison.

[366] By Wilson.

[367] By Sherman.

[368] Madison, _ut supra_. August 28.

[369] The reader who will consult a paper in the fourth volume of the
Collections of the Massachusetts Historical Society (p. 194), written
by Dr. Belknap, in 1795, will find that slavery, in the sense in which
the term is now commonly understood, existed in Massachusetts Bay as
early as 1630. The proof of it consists,--1. In the provisions of the
colonial laws and ordinances, which recognize and regulate a relation
very different from that of service for hire. On this subject, the
early colonists of Massachusetts held and practised the law of Moses.
They regarded it as lawful to _buy_ and _sell_ "slaves taken in lawful
war," or reduced to servitude by judicial sentence, and placed them
under the same privileges as those given by the Mosaic law. But they
punished man-_stealing_ capitally, re-enacting expressly the 16th
verse of the 21st chapter of Exodus; and when there were any negroes
in their jurisdiction who had been stolen, or "fraudulently" acquired
in Africa, they endeavored to send them back again. 2. In the actual
presence of negro slaves, brought from Africa, who had been "lawfully"
acquired, that is, by fair purchase from those who held them as
prisoners of war. These existed to some extent in the Colony in 1638,
and were numerous in 1673; and of course were included in all the
legislation of that period respecting service, being sometimes
described as "slaves," and sometimes by the more general and
comprehensive term of "servants."--Slavery by judicial sentence was
inflicted for no higher crimes than theft and burglary. Thus at a
Quarter Court holden at Boston the 4th day of the 10th month, 1638,
"John Hazlewood being found guilty of severall thefts and breaking
into severall houses, was censured to be severely whipped and
delivered up a _slave_ to whom the Court shall appoint." (Shurtleff's
Edition of Records of Massachusetts, I. 246.) Many of the Indians
taken prisoners in King Philip's war, who had formerly submitted to
the Colonial government and had been called "Praying Indians" from
their supposed conversion to Christianity, were adjudged guilty of
"rebellion," and were sold into slavery in foreign countries. Dr.
Belknap says that some of them found their way back again, and took a
severe revenge on the English in a subsequent war. (Hist. Soc. Coll.
_ut supra_.)

[370] Mr. Madison stated in the Convention of Virginia in which the
Constitution was ratified, that "this clause was expressly inserted,
to enable owners of slaves to reclaim them." (Elliot's Debates, III.
453.)

[371] August 29. Elliot, V. 492.

[372] I am not aware of any more positive evidence than that above
given in the text, that this clause of the Constitution was expressly
made in the Convention a condition of assent by any of the States.

[373] In 1790, the slaves numbered 697,897, and the whites 3,172,464.
In 1850, the slaves had increased to 3,204,313, and the whites to
19,533,068.



CHAPTER XVI.

REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.--GUARANTY OF REPUBLICAN
GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE
CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF
THE CONSTITUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION.


The power and duty of the United States to guarantee a republican form
of government to each State, and to protect each State against
invasion and domestic violence, had been declared by a resolution, the
general purpose of which has been already described. It should be said
here, however, that the objects of such a provision were two; first,
to prevent the establishment in any State of any form of government
not essentially republican in its character, whether by the action of
a minority or of a majority of the inhabitants; second, to protect the
State against invasion from without, and against every form of
domestic violence.[374] When the committee of detail came to give
effect to the resolution, they prepared an article, which made it the
duty of the United States to guarantee to each State a republican form
of government, and to protect each State against invasion, without any
application from its authorities; and to protect the State against
domestic violence, on the application of its legislature.[375] No
change was made by the Convention in the substance of this article,
excepting to provide that the application, in a case of domestic
violence, may be made by the executive of the State, when the
legislature cannot be convened.[376]

It now remains for me to state what appears to have been the meaning
of the framers of the Constitution, embraced in these provisions. It
is apparent, then, from all the proceedings and discussions on this
subject, that, by guaranteeing a republican form of government, it was
not intended to maintain the existing constitutions of the States
against all changes. This would have been to exercise a control over
the sovereignty of the people of a State, inconsistent with the nature
and purposes of the Union. The people must be left entirely free to
change their fundamental law, at their own pleasure, subject only to
the condition, that they continue the republican form of government.
The question arises then, What is that form? Does it imply the
existence of some organic law, establishing the departments of a
government, and prescribing their powers, or does it admit of a form
of the body politic under which the public will may be declared from
time to time, either with or without the agency of any established
organs or representatives? Is it competent to a State to abolish
altogether that body of its fundamental law which we call its
Constitution, and to proceed as a mere democracy, enacting,
expounding, and executing laws by the direct action of the people, and
without the intervention of any representative system constituting
what is known as a government?

The Constitution of the United States assumes, in so many of its
provisions, that the States will possess organized governments, in
which legislative, executive, and judicial departments will be known
and established, that it must be taken for granted that the existence
of such agents of the public will is a necessary feature of a State
government, within the meaning of this clause. No State could
participate in the government of the Union, without at least two of
these agents, namely, a legislature and an executive; for the people
of a State, acting in their primary capacity, could not appoint a
Senator of the United States; nor fill a vacancy in the office of
Senator; nor appoint Electors of the President of the United States,
without the previous designation by a legislature of the mode in which
such Electors were to be chosen; nor apply to the government of the
United States to protect them against "domestic violence," through any
other agent than the legislature or the executive of the State. It is
manifest, therefore, that each State must have a government,
containing at least these distinct departments; and whether this
government is organized periodically, under mere laws perpetually
re-enacted, and subject to perpetual changes without reference to
forms, or under standing and fundamental laws, changeable only in a
prescribed form, and being so far what is called a constitution, it is
apparent that there must be a "form of government" possessed of these
distinct agencies.

There must be, moreover, not only this "form of government," but it
must be a "republican" form; and in order to determine the sense in
which this term qualifies the nature of the government in other
respects besides those already referred to, it is necessary to take
into view the previous history of American political institutions,
because that history shows what is meant, in the American sense, by a
"republican" government.

History, then, establishes the fact, that, in the American system of
government, the people are regarded as the sole original source of all
political authority; that all legitimate government must rest upon
their will. But it also teaches that the will of the people is to be
exercised through representative forms. For even in the exercise of
original suffrage, which has never been universal in any of the States
of the Union, and in the bestowal of power upon particular organs,
those who are regarded as competent to express the will of society
are, in that expression, deemed to represent all its members; and
those who, in the distribution of political functions, exercise the
sovereignty of the people, so far as it has been thus imparted to
them, exercise a representative function, to which they are appointed,
directly or indirectly, by popular suffrage, that may be more or less
restricted, according to the public will. It may be said, therefore,
with strictness, that in the American system a republican government
is one based on the right of the people to govern themselves, but
requiring that right to be exercised through public organs of a
representative character; and these organs constitute the government.
How much or how little power shall be imparted to this government,
what restrictions shall be imposed upon it, and what the precise
functions of its several departments shall be, with respect to the
internal concerns of the State, the Constitution of the United States
leaves untouched, except in a few particulars. It merely declares that
a government having the essential characteristics of an American
republican system shall be guaranteed by the United States; that is to
say, that no other shall be permitted to be established.

The provision by which the State is protected against domestic
violence was necessary to complete the republican character of the
system intended to be upheld. The Constitution of the United States
assumes that the governments of the States, existing when it goes into
operation, are rightfully in the exercise of the authority of the
State, and will so continue until they are changed. But it means that
no change shall be made by force, by public commotion, or by setting
aside the authority of the existing government. It recognizes the
right of that government to be protected against domestic violence; in
which expression is to be included every species of force directed
against that government, excepting the will of the people operating
to change it through the forms of constitutional action.

The next topic on which the Convention was required to act was the
question whether the Constitution should be made capable of amendment,
and in what mode amendments were to be proposed and adopted. The
Confederation, from its nature as a league between States otherwise
independent of each other, was made incapable of alteration excepting
by the unanimous consent of the States. It affords a striking
illustration of the different character of the government established
by the Constitution, that a mode was devised by which changes in the
organic law could become obligatory upon all the States, by the action
of a less number than the whole.

The frame of government which the members of the Convention were
endeavoring to establish, if once adopted, was to endure, as a
continuing power, indefinitely; and that it might, as far as possible,
be placed beyond the danger of destruction, it was necessary to make
it subject to such peaceful changes as experience might render proper,
and which, by being made capable of introduction by the organic law
itself, would preserve the identity of the government. The existence
and operation of a prescribed method of changing particular features
of a government mark the line between amendment and revolution, and
render a resort to the latter, for the purpose of melioration or
reform, save in extreme cases of oppression, unnecessary. According to
our American theory of government, revolution and amendment both rest
upon the doctrine, that the people are the source of all political
power, and each of them is the exercise of an ultimate right. But this
right is exercised, in the process of amendment, in a prescribed form,
which preserves the continuity of the existing government, and changes
only such of its fundamental rules as require revision, without the
destruction of any public or private rights that may have become
vested under the former rule. Revolution, on the contrary, proceeds
without form, is the violent disruption of the obligations resting on
the authority of the former government, and terminates its existence
often, without saving any of the rights which may have grown up under
it. The question, therefore, whether the Constitution should be made
capable of amendment, was identical with the question whether some
mode of amending it should be prescribed in the instrument itself,
since, without an ascertained and limited method of proceeding, all
change becomes, in effect, revolution; and this was accordingly, in
substance, the same as the question whether revolution should be the
only method by which the American people could ever modify their
system of government, when in the progress of time changes might
become indispensable.

It was originally proposed in the Convention, that provision should be
made for amending the Constitution, without requiring the assent of
the national legislature.[377] But this was justly regarded as a very
important question, and the Convention came to no other decision,
when the committee of detail were instructed, than to declare that
provision ought to be made for amending the Constitution whenever it
should seem necessary.[378] The mode selected by the committee, and
embraced in the first draft of the instrument, was to have a
convention called by the Congress, when applied for by the
legislatures of two thirds of the States; but they did not declare
whether the legislatures were to propose amendments and the convention
was to adopt them, or whether the convention was both to propose and
adopt them, or only to propose them for adoption by some other body or
bodies not specified. There lay, therefore, at the basis of this whole
subject, the very grave question whether there should ever be another
national convention, to act in any manner upon or in reference to the
national Constitution, after its adoption, and if so, what its
functions and authority were to be. There would follow, also, the
further question, whether this should be the sole method in which the
Constitution should be made capable of amendment. Several reasons
concurred to render it highly inexpedient to make a resort to a
convention the sole method of reaching amendments, and we can now see
that the decision that was made on this subject was a wise one. It was
a rare combination of circumstances that gave to the first national
Convention its success. The war of the Revolution, and the exigencies
which it caused, had produced a class of men, possessing an influence,
as well as qualifications for the duty assigned to them, that would
not be likely to be again witnessed. Of these men, Washington was the
head; and no second Washington could be looked for. The peculiar
crisis, too, occasioned by the total failure of the Confederation,
notwithstanding the apparent fitness and actual necessity of that
government at the time of its formation, could never occur again.
There were, moreover, but thirteen States in the confederacy, nearly
all of which dated their settlement and their existence as political
communities from about the same period, and all had passed through the
same revolutionary history. But the number of the States was evidently
destined to be greatly increased, and the new members of the Union
would also be likely to be very different in character from the old
States. It was not probable, therefore, that the time would ever
arrive when the people of the United States would feel that another
national convention, for the purpose of acting on the national
Constitution, would be safe or practicable. Still, it would not have
been proper to have excluded the possibility of a resort to this
method of amendment; since the national legislature might itself be
interested to perpetuate abuses springing from defects in the
Constitution, and to incur the hazards attending a convention might
become a far less evil than the continuance of such abuses, or the
failure to make the necessary reforms.

But it was indispensable that the precise functions and authority of
such a convention should be defined, lest its action might result in
revolution. The method of amendment proposed by the committee of
detail did not enable the Congress to call a convention on their own
motion, and did not prescribe the action of such a body, or provide
any mode in which the amendments proposed by it should be adopted.
Hamilton and Madison both opposed this plan;--the former, because it
was inadequate, and because he considered it desirable that a much
easier method should be devised for remedying the defects that would
become apparent in the new system; the latter, on account of the
vagueness of the plan itself. Accordingly, Mr. Madison brought
forward, as a substitute, a method of proceeding, which, with some
modifications, became what is now the fifth article of the
Constitution; namely, that the Congress, whenever two thirds of both
houses shall deem it necessary, shall propose amendments; or, on the
application of the legislatures of two thirds of the States, shall
call a convention for proposing amendments. In either case, the
amendments proposed are to become valid as part of the Constitution,
when ratified by the legislatures of three fourths of the States, or
by conventions in three fourths of the States, as the one or the other
mode of ratification may be proposed by the Congress.[379]

But when this provision had been agreed upon, the grave question
arose, whether the power of amendment was to be subjected to any
limitations. There were two objects, in respect to which, as we have
more than once had occasion to see, different classes of the States
felt great jealousy. One of them had been covered by the stipulations
that the States should not be prohibited before the year 1808 from
admitting further importations of slaves, and that no capitation or
other direct tax should be laid unless in proportion to the census or
enumeration of the inhabitants of the States, in which three fifths
only of the slaves were included.[380] The other was the equality of
representation in the Senate, so long and at length so successfully
contended for by the smaller States.[381] At the instance of Mr.
Rutledge of South Carolina, a proviso was added, which forbade any
amendment before the year 1808 affecting in any manner the clauses
relating to the slave-trade and the capitation or other direct
taxes.[382] This proviso having now become inoperative, those clauses
are, like others, subject to amendment. At the instance of Mr. Sherman
of Connecticut, a restriction that is of perpetual force was placed
upon the power of amendment, which prevents each State from being
deprived of its equality of representation in the Senate, without its
consent.[383]

The oath or affirmation to support the Constitution was provided for
by the committee of detail, in accordance with the resolution
directing that it should be taken by the members of both houses of
Congress and of the State legislatures, and by all executive and
judicial officers of the United States and of the several States; and
for the purpose of for ever preventing any connection between church
and state, and any scrutiny into men's religious opinions, the
Convention unanimously added the clause, that "no religious test shall
ever be required as a qualification to any office or public trust
under the United States."[384]

We are next to ascertain in what mode the Constitution, which had thus
been framed, was to provide for its own establishment and authority.
There is a great difference between the importance of this question,
as it presented itself to the framers of the Constitution, and its
importance to this or any succeeding generation. To us it is chiefly
interesting because it displays the basis of a government which has
been established for seventy years over the thirteen original States
of the confederacy, and is now acknowledged by more than twice the
number of those original States. To those who made the Constitution,
and to the people who were to vote upon it and to put it into
operation, the mode in which it was to become the organic law of the
Union was a topic of serious import and delicacy. It involved the
questions, of what course would be politic with reference to the
people; of what would be practicable; of the initiation of the new
government without force; of its establishment on a firm, just, and
legitimate authority; and of its right to supersede the Confederation,
without a breach of faith toward the members of that body by whose
inhabitants the new system might be rejected.

The Convention had already decided that the Constitution must be
ratified by the people of the States; but a difficulty had all along
existed, in the opinions held by some of the members respecting the
compact then subsisting between the States, which they regarded as
indissoluble but by the consent of all the parties to it. The
resolution, which the committee of detail were instructed to carry
out, had declared that the new plan of government should first be
submitted to the approbation of the existing Congress, and then to
assemblies of representatives to be recommended by the State
legislatures and to be expressly chosen by the people to consider and
decide upon it. But this direction embraced no decision of the
question, whether the ratification by the people of a less number than
all the States should be sufficient for putting the government into
operation. If the people of a smaller number than the whole of the
States could establish this form of government, what was to be its
future relation to the States which might reject or refuse to consider
it? Could any number of the States thus withdraw themselves from the
Confederation, and establish for themselves a new general government,
and could that government have any authority over the rest? Various
and widely opposite theories were maintained. One opinion was, that
all the States must accept the Constitution, or it would be a
nullity;--another, that a majority of the States might establish it,
and so bind the minority, upon the principle that the Union was a
society subject to the control of the greater part of its
members;--still another, that the States which might ratify it would
bind themselves, but no one else.

The truth with regard to these questions, which perplexed the minds of
men in that assembly somewhat in proportion to their acuteness and
their proneness to metaphysical speculations, was in reality not very
far off. The Articles of Confederation had certainly declared that no
alteration should be made in any of them, unless first proposed by the
Congress, and afterwards unanimously agreed to by the State
legislatures. But in two very important particulars the Convention had
already passed beyond what could be deemed an alteration of those
Articles. They had prepared and were about to propose a system of
government that would not merely alter, but would abolish and
supersede, the Confederation; and they had determined to obtain, what
they regarded as a legitimate authority for this purpose, the consent
of the people of the States, by whose will the State governments
existed, from whom those governments derived their authority to enter
into the compact of the Confederation, and whose sovereign right to
ameliorate their own political condition could not be disputed. This
system they intended should be offered to all. The refusal of some
States to accept it could not, upon principles of natural justice and
right, oblige the others to remain fettered to a government which had
been pronounced by twelve of the thirteen legislatures to be
defective and inadequate to the exigencies of the Union. At the same
time, the independent political existence of the people of each State
made it impossible to treat them as a minority subject to the power of
such majority as would be formed by the States that might adopt the
Constitution. If the people of a State should ratify it, they would be
bound by it. If they should refuse to ratify it, they would simply
remain out of the new Union that would be formed by the rest. It was
therefore determined that the Constitution should undertake to be in
force only in those States by whose inhabitants it might be
adopted.[385]

Then came the question, in what mode the assent of the people of the
States was to be given. The constitution of one of the States[386]
provided that it should be altered only in a prescribed mode; and it
was said that the adoption of the Constitution now proposed would
involve extensive changes in the constitution of every State. This was
equally true of the constitutions of those States which had provided
no mode for making such changes, and in which the State officers were
all bound by oath to support the existing constitution. These
difficulties, however, were by no means insurmountable. It was
universally acknowledged that the people of a State were the fountain
of all political power, and if, in the method of appealing to them,
the consent of the State government that such appeal should be made
were involved, there could be no question that the proceeding would
be in accordance with what had always been regarded as a cardinal
principle of American liberty. For, since the birth of that liberty,
it had been always assumed that, when it has become necessary to
ascertain the will of the people on a new exigency, it is for the
existing legislative power to provide for it by an ordinary act of
legislation.[387]

Whatever changes, therefore, in the State constitutions might become
necessary in consequence of the adoption of the national Constitution,
it would be a just presumption that the will of the people, duly
ascertained by their legislature, had decided, by that adoption, that
such changes should be made; and the formal act of making them could
follow at any time when arrangements might be made for it. But if no
mode of ratification of the national Constitution were to be
prescribed, and it were left to each State to act upon it in any
manner that it might prefer, there would be no uniformity in the mode
of creating the new government in the different States; and if the
Convention and the Congress were to refer its adoption to the State
legislatures, it would not rest on the direct authority of the people.
For these reasons, the Convention adhered to the plan of having the
Constitution submitted directly to assemblies of representatives of
the people in each State, chosen for the express purpose of deciding
on its adoption.[388]

There was still another question, of great practical importance, to
be determined. Was the Constitution to go into operation at all,
unless adopted by all the States, and if so, what number should be
sufficient for its establishment? It appeared clearly enough, that to
require a unanimous adoption would defeat all the labors of the
Convention. Rhode Island had taken no part in the formation of the
Constitution, and could not be expected to ratify it. New York had not
been represented for some weeks in the Convention, and it was at least
doubtful how the people of that State would receive the proposed
system, to which a majority of their delegates had declared themselves
to be strenuously opposed.[389] Maryland continued to be present in
the Convention, and a majority of her delegates still supported the
Constitution; but Luther Martin confidently predicted its rejection by
the State, and it was evident that his utmost energies would be put
forth against it. Under these circumstances, to have required a
unanimous adoption by the States would have been fatal to the
experiment of creating a new government. Some of the members were in
favor of such a number as would form both a majority of the States and
a majority of the people of the United States. But there was an idea
familiar to the people, in the number that had been required under the
Confederation upon certain questions of grave importance; and in order
that the Constitution might avail itself of this established usage, it
was determined that the ratifications of the conventions of _nine_
States should be sufficient to establish the Constitution between the
States that might so ratify it.[390]

The Constitution, as thus finally prepared, received the formal assent
of the States in the Convention, on the last day of the session.[391]
The great majority of the members desired that the instrument should
go forth to the public, not only with an official attestation that it
had been agreed upon by the States represented, but also with the
individual sanction and signatures of their delegates. Three of the
members present, however, Randolph and Mason of Virginia, and Gerry of
Massachusetts, notwithstanding the proposed form of attestation
contained no personal approbation of the system, and signified only
that it had been agreed to by the unanimous consent of the States then
present, refused to sign the instrument.[392] The objections which
these gentlemen had to different features of the Constitution would
have been waived, if the Convention had been willing to take a course
quite opposite to that which had been thought expedient. They desired
that the State conventions should be at liberty to propose amendments,
and that those amendments should be finally acted upon by another
general convention.[393] The nature of the plan, however, and the form
in which it was to be submitted to the people of the States, made it
necessary that it should be adopted or rejected as a whole, by the
convention of each State. As a process of amendment by the action of
the Congress and the State legislatures had been provided in the
instrument, there was the less necessity for holding a second
convention. The State conventions would obviously be at liberty to
propose amendments, but not to make them a condition of their
acceptance of the government as proposed.

A letter having been prepared to accompany the Constitution, and to
present it to the consideration and action of the existing Congress,
the instrument was formally signed by all the other members then
present. The official record sent to the Congress of the resolutions,
which directed that the Constitution be laid before that body, recited
the presence of the States of New Hampshire, Massachusetts,
Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
North Carolina, South Carolina, and Georgia. New York was not regarded
as officially present; but in order that the proceedings might have
all the weight that a name of so much importance could give to them,
in the place that should have been filled by his State, was recited
the name of "Mr. Hamilton from New York." The prominence thus given to
the name of Hamilton, by the absence of his colleagues, was
significant of the part he was to act in the great events and
discussions that were to attend the ratification of the instrument by
the States. His objections to the plan were certainly not less grave
and important than those which were entertained by the members who
refused to give to it their signatures; but like Madison, like
Pinckney and Franklin and Washington, he considered the choice to be
between anarchy and convulsion, on the one side, and the chances of
good to be expected of this plan, on the other. Upon this issue, in
truth, the Constitution went to the people of the United States. There
is a tradition, that, when Washington was about to sign the
instrument, he rose from his seat, and, holding the pen in his hand,
after a short pause, pronounced these words:--"Should the States
reject this excellent Constitution, the probability is that an
opportunity will never again offer to cancel another in peace,--the
next will be drawn in blood."[394]

FOOTNOTES:

[374] Elliot, V. 332, 333.

[375] First draft of the Constitution, Art. XVIII. Elliot, V. 381.

[376] Constitution, Art. IV. § 4.

[377] Elliot, V. 157.

[378] Elliot, V. 376.

[379] Elliot, V. 530-532.

[380] Constitution, Art. I § 9.

[381] Ibid. Art. I. § 3.

[382] Elliot, V. 532.

[383] Ibid. 551, 552. Constitution, Art. I § 3.

[384] Constitution, Art. VI.

[385] Elliot, V. 499.

[386] Maryland.

[387] Works of Daniel Webster, VI. 227.

[388] The vote, however, was only six States to four. Elliot, V. 500.

[389] Two of the New York delegates, Messrs. Yates and Lansing, left
the Convention on the 5th of July. Hamilton had previously returned to
the city of New York, on private business. He left June 29 and
returned August 13. It appears from his correspondence that he was
again in the city of New York on the 20th of August, and that he
remained there until the 28th. On the 6th of September he was in the
Convention. The vote of the State was not taken in the Convention
after the retirement of Yates and Lansing.

[390] 1 Elliot, V. 499-501. The article embodying this decision was
the 21st in the report of the committee of detail. It became, on the
revision, Article VIII. of the Constitution.

[391] September 17.

[392] This form of attestation had been adopted in the hope of gaining
the signatures of all the members, but without success.

[393] Mr. Madison has given the principal grounds of objection which
these gentlemen felt to the Constitution. It is not necessary to
repeat them here, as they were nearly all met by the subsequent
amendments, so far as they were special, and did not relate to the
general tendency of the system. (See Madison, Elliot, V. 552-558.)

[394] My authority for this anecdote is the Pennsylvania Journal of
November 14, 1787, where it was stated by a writer who dates his
communication from Elizabethtown, November 7.



BOOK V.

ADOPTION OF THE CONSTITUTION.



CHAPTER I.

GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION WITH GREAT
BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING IN MASSACHUSETTS,
NEW YORK, VIRGINIA, SOUTH CAROLINA, MARYLAND, AND NEW
HAMPSHIRE.--APPOINTMENT OF THEIR CONVENTIONS.


The national Convention was dissolved on the 14th of September. The
state of expectation and anxiety throughout the country during its
deliberations, and at the moment of its adjournment, will appear from
a few leading facts and ideas, which illustrate the condition of the
popular mind when the Constitution made its appearance.

The secrecy with which the proceedings of the Convention had been
conducted, the nature of its business, and the great eminence and
personal influence of its principal members, had combined to create
the deepest solicitude in the public mind in all the chief centres of
population and intelligence throughout the Union. An assembly of many
of the wisest and most distinguished men in America had been engaged
for four months in preparing for the United States a new form of
government, and the public had acquired no definite knowledge of
their transactions, and no information respecting the nature of the
system they were likely to propose. Under these circumstances, we may
expect to find the most singular rumors prevailing during the session
of the Convention, and a great excitement in the public mind in many
localities, when the result was announced. Among the reports that were
more or less believed through the latter part of the summer, was the
idle one that the Convention were framing a system of monarchical
government, and that the Bishop of Osnaburg was to be sent for, to be
the sovereign of the new kingdom.

Foolish as it may appear to us, this story occasioned some real alarm
in its day. It is to be traced to a favorite idea of that class of
Americans who had either been avowed "Tories" during the Revolution,
or had secretly felt a greater sympathy with the mother country than
with the land of their birth, and who were at this period generally
called "Loyalists." Some of these persons had taken no part, on either
side, during the Revolutionary war, and had abstained from active
participation in public affairs since the peace. They were all of that
class of minds whose tendencies led them to the belief that the
materials for a safe and efficient republican government were not to
be found in these States, and that the public disorders could be
corrected only by a government of a very different character. Their
feelings and opinions carried them towards a reconciliation with
England, and their grand scheme for this purpose was to invite hither
the titular Bishop of Osnaburg.[395]

Their numbers were not large in any of the States; but the feeling of
insecurity and the dread of impending anarchy were shared by others
who had no particular inclination towards England; and it is not to
be doubted that the Constitution, among the other mischiefs which it
averted, saved the country from a desperate attempt to introduce a
form of government which must have been crushed beneath commotions
that would have made all government, for a long time at least,
impracticable. The public anxiety, created by the reports in
circulation, had reached such a point in the month of August,--when
it was rumored that the Convention had recently given a higher tone to
the system they were preparing,--that members found it necessary to
answer numerous letters of inquiry from persons who had become
honestly alarmed. "Though we cannot affirmatively tell you," was their
answer, "what we are doing, we can negatively tell you what we are
_not_ doing:--we never once thought of a king."[396]

All doubt and uncertainty were dispelled, however, by the publication
of the Constitution in the newspapers of Philadelphia, on the 19th of
September. It was at once copied into the principal journals of all
the States, and was perhaps as much read by the people at large as any
document could have been in the condition of the means of public
intelligence which a very imperfect post-office department then
afforded. It met everywhere with warm friends and warm opponents; its
friends and its opponents being composed of various classes of men,
found, in different proportions, in almost all of the States. Those
who became its advocates were, first, a large body of men, who
recognized, or thought they recognized, in it the admirable system
which it in fact proved to be when put into operation; secondly, those
who, like most of the statesmen who made it, believed it to be the
best attainable government that could be adopted by the people of the
United States, overlooking defects which they acknowledged, or
trusting to the power of amendment which it contained; and, thirdly,
the mercantile and manufacturing classes, who regarded its commercial
and revenue powers with great favor. Its adversaries were those who
had always opposed any enlargement of the federal system; those whose
consequence as politicians would be diminished by the establishment of
a government able to attract into its service the highest classes of
talent and character, and presenting a service distinct from that of
the States; those who conscientiously believed its provisions and
powers dangerous to the rights of the States and to public liberty;
and, finally, those who were opposed to any government, whether State
or national or federal, that would have vigor and energy enough to
protect the rights of property, to prevent schemes of plunder in the
form of paper money, and to bring about the discharge of public and
private debts. The different opponents of the Constitution being
animated by these various motives, great care should be taken by
posterity, in estimating the conduct of individuals, not to confound
these classes with each other, although they were often united in
action.

As the Constitution presented itself to the people in the light of a
proposal to enlarge and reconstruct the system of the Federal Union,
its advocates became known as the "Federalists," and its adversaries
as the "Anti-Federalists." This celebrated designation of Federalist,
which afterwards became so renowned in our political history as the
name of a party, signified at first nothing more than was implied in
the title of the essays which passed under that name, namely, an
advocacy of the Constitution of the United States.[397]

Midway between the active friends and opponents of the Constitution
lay that great and somewhat inert mass of the people, which, in all
free countries, finally decides by its preponderance every seemingly
doubtful question of political changes. It was composed of those who
had no settled convictions or favorite theories respecting the best
form of a general government, and who were under the influence of no
other motive than a desire for some system that would relieve their
industry from the oppressions under which it had long labored, and
would give security, peace, and dignity to their country. Ardently
attached to the principles of republican government and to their
traditionary maxims of public liberty, and generally feeling that
their respective States were the safest depositaries of those
principles and maxims, this portion of the people of the United States
were likely to be much influenced by the arguments against the
Constitution founded on its want of what was called a Bill of Rights,
on its omission to secure a trial by jury in civil cases, and on the
other alleged defects which were afterwards corrected by the first ten
Amendments. But they had great confidence in the principal framers of
the instrument, an unbounded reverence for Washington and Franklin,
and a willingness to try any experiment sanctioned by men so
illustrious and so entirely incapable of any selfish or unworthy
purpose.[398] There were, however, considerable numbers of the
people, in the more remote districts of several of the States, who had
a very imperfect acquaintance, if they had any, with the details of
the proposed system, at the time when their legislatures were called
upon to provide for the assembling of conventions; for we are not to
suppose that what would now be the general and almost instantaneous
knowledge of any great political event or topic, could have taken
place at that day concerning the proposed Constitution of the United
States. Still it was quite generally understood before its final
ratification in the States where its adoption was postponed to the
following year, where information was most wanted, and where the chief
struggles occurred; and it is doubtless correct to assert that its
adoption was the intelligent choice of a majority of the people of
each State, as well as the choice of their delegates, when their
conventions successively acted upon it.

On the adjournment of the Convention, Madison, King, and Gorham, who
held seats in the Congress of the Confederation, hastened to the city
of New York, where that body was then sitting. They found eleven
States represented.[399] But they found also that an effort was likely
to be made, either to arrest the Constitution on its way to the people
of the States, or to subject it to alteration before it should be sent
to the legislatures. It was received by official communication from
the Convention in about ten days after that assembly was dissolved.
All that was asked of the Congress was, that they should transmit it
to their constituent legislatures for their action. The old objection,
that the Congress could with propriety participate in no measure
designed to change the form of a government which they were appointed
to administer, having been answered, Richard Henry Lee of Virginia
proposed to amend the instrument by inserting a Bill of Rights, trial
by jury in civil cases, and other provisions in conformity with the
objections which had been made in the Convention by Mr. Mason.

To the address and skill of Mr. Madison, I think, the defeat of this
attempt must be attributed. If it had succeeded, the Constitution
could never have been adopted by the necessary number of States; for
the recommendation of the Convention did not make the action of the
State legislatures conditional upon their receiving the instrument
from the Congress; the legislatures would have been at liberty to send
the document published by the Convention to the assemblies of
delegates of the people, without adding provisions that might have
been added by the Congress; some of them would have done so, while
others would have followed the action of the Congress, and thus there
would have been in fact two Constitutions before the people of the
States, and their acts of ratification would have related to
dissimilar instruments. This consideration induced the Congress, by a
unanimous vote of the States present, to adopt a resolution which,
while it contained no approval of the Constitution, abstained from
interfering with it as it came from the Convention, and transmitted
it to the State legislatures, "in order to be submitted to a
convention of delegates chosen in each State by the people thereof, in
conformity to the resolves of the Convention made and provided in that
case."[400]

In Massachusetts, the Constitution was well received, on its first
publication, so far as its friends in the central portion of the Union
could ascertain. Mr. Gerry was a good deal censured for refusing to
sign it, and the public voice, in Boston and its neighborhood,
appeared to be strongly in its favor. But in a very short time three
parties were formed among the people of the State, in such proportions
as to make the result quite uncertain. The commercial classes, the men
of property, the clergy, the members of the legal profession,
including the judges, the officers of the late army, and most of the
people of the large towns, were decidedly in favor of the
Constitution. This party amounted to three sevenths of the people of
the State. The inhabitants of the district of Maine, who were then
looking forward to the formation of a new State, would be likely to
vote for the new Constitution, or to oppose it, as they believed it
would facilitate or retard their wishes; and this party numbered two
sevenths. The third party consisted of those who had been concerned in
the late insurrection under Shays, and their abettors; the majority of
them desiring the annihilation of debts, public and private, and
believing that the proposed Constitution would strengthen all the
rights of property. Their numbers were estimated at two sevenths of
the people.[401] It was evident that a union of the first two parties
would secure the ratification of the instrument, and a union of the
last two would defeat it. Great caution, conciliation, and good temper
were, therefore, required, on the part of its friends. The influence
of Massachusetts on Virginia, on New York, and indeed on all the
States that were likely to act after her, would be of the utmost
importance. The State convention was ordered to assemble in January.

In New York, as elsewhere, the first impressions were in favor of the
Constitution. In the city, and in the southern counties generally, it
was from the first highly popular. But it was soon apparent that the
whole official influence of the executive government of the State
would be thrown against it. There had been a strong party in the
State, ever since its refusal to bestow on the Congress the powers
asked for in the revenue system of 1783, who had regarded the Union
with jealousy, and steadily opposed the surrender to it of any further
powers. Of this party, the Governor, George Clinton, was now the head;
and the government of the State, which embraced a considerable amount
of what is termed "patronage," was in their hands. Two of the
delegates of the State to the national Convention, Yates and Lansing,
had retired from that body before the Constitution was completed, and
had announced their opposition to it in a letter to the Governor,
which, from its tone and the character of its objections, was likely
to produce a strong impression on the public mind. It became evident
that the Constitution could be carried in the State of New York in no
other way than by a thorough discussion of its merits,--such a
discussion as would cause it to be understood by the people, and would
convince them that its adoption was demanded by their interests. For
this purpose, Hamilton, Madison, and Jay, under the common signature
of Publius, commenced the publication of the series of essays which
became known as The Federalist. The first number was issued in the
latter part of October.

In January, the Governor presented the official communication of the
instrument from the Congress to the legislature, with the cold remark,
that, from the nature of his official position, it would be improper
for him to have any other agency in the business than that of laying
the papers before them for their information. Neither he nor his
party, however, contented themselves with this abstinence. After a
severe struggle, resolutions ordering a State convention to be elected
were passed by the bare majorities of three in the Senate and two in
the House, on the first day of February, 1788. The elections were held
in April; and when the result became known, in the latter part of May,
it appeared that the Anti-Federalists had elected two thirds of the
members of the Convention, and that probably four sevenths of the
people of the State were unfriendly to the Constitution. Backed by
this large majority, the leaders of the Anti-Federal party intended to
meet in convention at the appointed time, in June, and then to adjourn
until the spring or summer of 1789. Their argument for this course
was, that, if the Constitution had been adopted in the course of a
twelvemonth by nine other States, New York would have an opportunity
to witness its operation and to act according to circumstances. They
would thus avoid an immediate rejection,--a step which might lead the
Federalists to seek a separation of the southern from the northern
part of the State, for the purpose of forming a new State. On the
other hand, the Federalists rested their hopes upon what they could do
to enlighten the public at large, and upon the effect on their
opponents of the action of other States, especially of Virginia, whose
convention was to meet at nearly the same time. The Convention of New
York assembled at Poughkeepsie,[402] on the 17th of June, 1788.

However strong the opposition in other States, it was to be in
Virginia far more formidable, from the abilities and influence of its
leaders, from the nature of their objections, and from the peculiar
character of the State. Possessed of a large number of men justly
entitled to be regarded then and always as statesmen, although many of
them were prone to great refinements in matters of government; filled
with the spirit of republican freedom, although its polity and
manners were marked by several aristocratic features; having, on the
one hand, but few among its citizens interested in commerce, and still
fewer, on the other hand, of those levelling and licentious classes
which elsewhere sought to overturn or control the interests of
property; ever ready to lead in what it regarded as patriotic and
demanded by the interests of the Union, but jealous of its own dignity
and of the rights of its sovereignty;--the State of Virginia would
certainly subject the Constitution to as severe an ordeal as it could
undergo anywhere, and would elicit in the discussion all the good or
the evil that could be discovered in the examination of a system
before it had been practically tried. The State was to feel, it is
true, the almost overshadowing influence of Washington, in favor of
the new system, exerted, not by personal participation in its
proceedings, but in a manner which could leave no doubt respecting his
opinion. But it was also to feel the strenuous opposition of Patrick
Henry, that great natural orator of the Revolution, whose influence
over popular assemblies was enormous, and who added acuteness,
subtilty, and logic to the fierce sincerity of his unstudied
harangues, although his knowledge was meagre and his range of thought
circumscribed; and the not less strenuous or effective opposition of
George Mason, who had little of the eloquence and passion of his
renowned compatriot, but who was one of the most profound and able of
all the American statesmen opposed to the Constitution, while he was
inferior in general powers and resources to not more than two or
three of those who framed or advocated it. Richard Henry Lee, William
Grayson, Benjamin Harrison, John Tyler, and others of less note, were
united with Henry and Mason in opposing the Constitution. Its leading
advocates were to be Madison, Marshall, the future Chief Justice of
the United States, George Nicholas, and the Chancellor Pendleton. The
Governor, Edmund Randolph, occupied for a time a middle position
between its friends and its opponents, but finally gave to it his
support, from motives which I have elsewhere described as eminently
honorable and patriotic.

One of the most distinguished of the public men of Virginia had been
absent in the diplomatic service of the country for three years. His
eminent abilities and public services, his national reputation, and
the influence of his name, naturally made both parties anxious to
claim the authority of Jefferson, and he was at once furnished with a
copy of the Constitution as soon as it appeared. In the heats of
subsequent political conflicts he has been often charged by his
opponents with a general hostility to the Constitution. The truth is,
that Mr. Jefferson's opinions on the subject of government, and of
what was desirable and expedient to be done in this country, united
with the effect of his long absence from home,[403] did lead him, at
first, to think and to say that the Constitution had defects which, if
not corrected, would destroy the liberties of America. He was by far
the most democratic, in the tendency of his opinions, of all the
principal American statesmen of that age. He was, according to his own
avowal, no friend to an energetic government anywhere. He carried
abroad the opinion that the Confederation could be adapted, with a few
changes, to all the wants of the Union; and this opinion he continued
to retain, because the events which had taken place here during his
absence did not produce upon his mind the effect which they produced
upon the great majority of public men who remained in the midst of
them. He freely declared to more than one of his correspondents in
Virginia, at this time, that such disorders as had been witnessed in
Massachusetts were necessary to public liberty, and that the national
Convention had been too much influenced by them, in preparing the
Constitution. He held that the natural progress of things is for
liberty to lose and for government to gain ground; and that no
government should be organized without those express and positive
restraints which will jealously guard the liberties of the people,
even if those liberties should periodically break into licentiousness.
One of his favorite maxims of government was "rotation in office"; and
he thought the government of the Union should have cognizance only of
matters involved in the relations of the people of each State to
foreign countries, or to the people of the other States, and that each
State should retain the exclusive control of all its internal and
domestic concerns, and especially the power of direct taxation.

Hence it is not surprising that, when Mr. Jefferson received at Paris,
early in November, a copy of the Constitution, and when he found in it
no express declarations insuring the freedom of religion, freedom of
the press, and freedom of the person under the uninterrupted
protection of the _habeas corpus_, and no trial by jury in civil
cases, and found also that the President would be re-eligible, and
that the government would have the power of direct taxation, his
anxiety should have been excited. It is a mistake, however, to suppose
that he counselled a direct rejection of the instrument by the people
of Virginia. His first suggestion was, that the nine States which
should first act upon it should adopt it, unconditionally, and that
the four remaining States should accept it only on the previous
condition that certain amendments should be made. This plan of his
became known in Virginia in the course of the winter of 1787-88, and
it gave the Anti-Federalists what they considered a warrant for using
his authority on their side. But before the following spring, when he
had had an opportunity to see the course pursued by Massachusetts, he
changed his opinion, and authorized his friends to say that he
regarded an unconditional acceptance by each State, and subsequent
amendments, in the mode provided by the Constitution, as the only
rational plan.[404] He also abandoned the opinion that the general
government ought not to have the power of direct taxation; but he
never receded from his objections founded on the want of a bill of
rights, and of trial by jury, and on the re-eligibility of the
President.

Immediately after his return to Mount Vernon from the national
Convention, Washington sent copies of the Constitution to Patrick
Henry, Mason, Harrison, and other leading persons whose opposition he
anticipated, with a temperate but firm expression of his own opinion.
The replies of these gentlemen furnished him with the grounds of their
objections, and at the same time relieved him, as to all of them but
Henry, from the apprehension that they might resist the calling of a
State convention. Mason and Henry were both members of the
legislature. The former was expressly instructed by his constituents
of Alexandria county[405] to vote for a submission of the Constitution
to the people of the State in convention;--a vote which he would
probably have given without instruction, as he declared to General
Washington that he should use all his influence for this purpose. Mr.
Henry was not instructed, and the friends of the Constitution
expected his resistance. The legislature assembled in October, and on
the first day of the session, in a very full House, Henry declared, to
the surprise of everybody, that the proposed Constitution must go to a
popular convention. The elections for such a body were ordered to be
held in March and April of the following spring. When they came on,
the news that the convention of New Hampshire had postponed their
action was employed by the Anti-Federalists, who insisted that this
step had been taken in deference to Virginia; although it was in fact
taken merely in order that the delegates of New Hampshire might get
their previous instructions against the Constitution removed by their
constituents. The pride of Virginia was touched by this electioneering
expedient, and the result was that the parties in the State convention
were nearly balanced, the Federalists however having, as they
supposed, a majority.[406] The convention was to assemble on the 2d of
June, 1788.

In the legislature of South Carolina the Constitution was debated,
with great earnestness, for three days, before it was decided to send
it to a popular convention. This was owing to the great persistency of
Rawlins Lowndes, who carried on the discussion in opposition to the
Constitution, almost single-handed and with great ability, against the
two Pinckneys, Pierce Butler, John and Edward Rutledge, John Julius
Pringle, Robert Barnwell, Dr. David Ramsay, and many other gentlemen.
At length, on the 19th of January, a resolution was passed, directing
a convention of the people to assemble on the 12th of May. The debate
in the legislature had tended to diffuse information respecting the
system, but it had also produced a formidable minority throughout the
State. Mr. Lowndes had employed, with a good deal of skill, the local
arguments which would be most likely to form the objections of a
citizen of South Carolina. He inveighed against the regulation of
commerce, the power over the slave-trade that was to belong to
Congress at the end of twenty years, and the preponderance which he
contended would be given to the Eastern States by the system of
representation in Congress; and although he was ably answered on all
points, the effect of the discussion was such, that a large minority
was returned to the Convention having a strong hostility to the
proposed system.[407]

The legislature of Maryland assembled in December, and directed the
delegates who had represented the State in the national Convention to
attend and give an account of the proceedings of that assembly. It
was in compliance with this direction that Luther Martin laid before
the legislature that celebrated communication which embodied not only
a very clear statement of the mode in which the principal compromises
of the Constitution were framed, as seen from the point of view
occupied by one who resisted them at every step, but also an
exceedingly able argument against the fundamental principle of the
proposed government. It was a paper, too, marked throughout with an
earnestness almost amounting to fanaticism. Repelling, with natural
indignation and dignity, the imputation that he was influenced by a
State office which he then held, he referred to the numerous honors
and emoluments which the Constitution of the United States would
create, and suggested--what his abilities and reputation well
justified--that his chance of obtaining a share of them was as good as
most men's. "But this," was his solemn conclusion, "I can say with
truth,--that so far was I from being influenced in my conduct by
interest, or the consideration of office, that I would cheerfully
resign the appointment I now hold; I would bind myself never to accept
another, either under the general government or that of my own State;
I would do more, sir;--so destructive do I consider the present system
to the happiness of my country, I would cheerfully sacrifice that
share of property with which Heaven has blessed a life of industry; I
would reduce myself to indigence and poverty; and those who are dearer
to me than my own existence, I would intrust to the care and
protection of that Providence who hath so kindly protected myself,--if
on _those terms only_ I could procure my country to reject those
chains which are forged for it."

Such a strength of conviction as this, on the part of a man of high
talent, was well calculated to produce an effect. No document that
appeared anywhere, against the Constitution, was better adapted to
rouse the jealousy, to confirm the doubts, or to decide the opinions,
of a certain class of minds. But it was an argument which reduced the
whole question substantially to the issue, whether the principle of
the Union could safely be changed from that of a federal league, with
an equality of representation and power as between the States, to a
system of national representation in a legislative body having
cognizance of certain national interests, in one branch of which the
people inhabiting the respective States should have power in
proportion to their numbers.[408] This was a question on which men
would naturally and honestly differ; but it was a question which a
majority of reflecting men, in almost every State, were likely, after
due inquiry, to decide against the views of Mr. Martin, because it was
clear that the Confederation had failed, and had failed chiefly by
reason of the peculiar and characteristic nature of its representative
system, and because the representative system proposed in the
Constitution was the only one that could be agreed upon as the
alternative. Mr. Martin's objections, however, like those of other
distinguished men who took the same side in other States, were of a
nature to form the creed of an earnest, conscientious, and active
minority. They had this effect in the State of Maryland. The
legislature ordered a State convention, to consider the proposed
Constitution, and directed it to meet on the 21st of April, 1788.

The convention of New Hampshire was to assemble in February. A large
portion of the State lay remote from the channels of intelligence, and
a considerable part of the people in the interior had not seen the
Constitution, when they were called upon to elect their delegates. The
population, outside of two or three principal places, was a rural one,
thinly scattered over townships of large territorial extent, lying
among the hills of a broken and rugged country, extending northerly
from the narrow strip of sea-coast towards the frontier of Canada. It
was easy for the opposition to persuade such a people that a scheme of
government had been prepared which they ought to reject; and the
consequence of their efforts was that the State convention assembled,
probably with a majority, certainly with a strong minority, of its
members bound by positive instructions to vote against the
Constitution which they were to consider.

I have thus, in anticipation of the strict order of events, given a
general account of the position of this great question in six of the
States, down to the time of the meeting of their respective
conventions, because when the session of the convention of
Massachusetts commenced, in January, 1788, the people of the five
States of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut
had successively ratified the Constitution without proposing any
amendments, and because the action of the others, extending through
the six following months, embraced the real crisis to which the
Constitution was subjected, and developed what were thereafter to be
considered as its important defects, according to the view of a
majority of the States, and probably also of a majority of the people
of all the States. For although the people of Delaware, Pennsylvania,
New Jersey, Georgia, and Connecticut ratified the Constitution without
insisting on previous or subsequent amendments, it is certain that
some of the same topics were the causes of anxiety and objection in
those States, which occasioned so much difficulty, and became the
grounds of special action, in the remaining States.

In coming, however, to the more particular description of the
resistance which the Constitution encountered, it will be necessary to
discriminate between the opposition that was made to the general plan
of the government, or to the particular features of it which it was
proposed to create, and that which was founded on its omission to
provide for certain things that were deemed essential. Of what may be
called the positive objections to the Constitution, it may be said, in
general, that, however fruitful of debate, or declamation, or serious
and important doubt, might be the question whether such a government as
had been framed by the national Convention should be substituted for
the Confederation, the opposition were not confined to this question,
as the means of persuading the people that the proposed system ought to
be rejected. One of the most deeply interested of the men who were
watching the currents of public opinion with extreme solicitude,
observed "a strong belief in the people at large of the insufficiency
of the Confederation to preserve the existence of the Union, and of the
necessity of the Union to their safety and prosperity; of course, a
strong desire of a change, and a predisposition to receive well the
propositions of the Convention."[409] But while the Constitution came
before the people with this conviction and this predisposition in its
favor, yet when its opponents, in addition to their positive objections
to what it did contain, could point to what it did _not_ embrace, and
could say that it proposed to establish a government of great power,
without providing for rights of primary importance, and without any
declaration of the cardinal maxims of liberty which the people had from
the first been accustomed to incorporate with their State
constitutions; and while the local interests, the sectional feelings,
and the separate policy, real or supposed, of different States,
furnished such a variety of means for defeating its adoption by the
necessary number of nine States;--we may not wonder that its friends
should have been doubtful of the issue. "It is almost arrogance," said
the same anxious observer, "in so complicated a subject, depending so
entirely upon the incalculable fluctuations of the human passions, to
attempt even a conjecture about the result."[410]

FOOTNOTES:

[395] It may be amusing to Americans of this and future generations to
know who this personage was for whom it was rumored that the Loyalists
desired to "send," and whose advent as a possible ruler of this
country was a vague apprehension in the popular mind for a good while,
and finally came to be imputed as a project to the framers of the
Constitution. The Bishop of Osnaburg was no other than the late Duke
of York, Frederick, the second son of King George III.; a prince whose
conduct as commander-in-chief of the army, in consequence of the sale
of commissions by his mistress, one Mrs. Clarke, became in 1809 a
subject of inquiry, leading to the most scandalous revelations, before
the House of Commons. The Duke was born in 1763, and was consequently,
at the period spoken of in the text, at the ripe age of twenty-four.
When about a year old (1764), he was chosen Bishop of Osnaburg. This
was a German province (Osnabrück), formerly a bishopric of great
antiquity, founded by Charlemagne. At the Reformation most of the
inhabitants became Lutherans, and by the Treaty of Westphalia it was
agreed that it should be governed alternately by a Roman Catholic and
a Protestant Bishop. In 1802 it was secularized, and assigned as an
hereditary principality to George III., in his capacity of King of
Hanover. Prince Frederick continued to be called by the title of
Bishop of Osnaburg, until he was created Duke of York. I am not aware
that the whispers of his name in the secret counsels of our Loyalists,
as a proposed king for America, became known in England. Whether such
knowledge would have excited a smile, or have awakened serious hopes,
is a question on which the reader can speculate. But it is certain
that there were persons in this country, and in the neighboring
British Provinces, who had long hoped for a reunion of the American
States with the parent country, through this or some other "mad
project." Colonel Humphreys, (who had been one of Washington's
_aides_,) writing to Hamilton, from New Haven, under date of September
16, 1787, says: "The quondam Tories have undoubtedly conceived hopes
of a future union with Great Britain, from the inefficacy of our
government, and the tumults which prevailed during the last winter. I
saw a letter, written at that period, by a clergyman of considerable
reputation in Nova Scotia, to a person of eminence in this State,
stating the impossibility of our being happy under our present
constitution, and proposing (now we could think and argue calmly on
all the consequences), that the efforts of the moderate, the virtuous,
and the brave should be exerted to effect a reunion with the parent
state.... It seems, by a conversation I have had here, that the
ultimate practicability of introducing the Bishop of Osnaburg is not a
novel idea among those who were formerly termed Loyalists. Ever since
the peace it has been occasionally talked of and wished for.
Yesterday, where I dined, half jest, half earnest, he was given as the
first toast. I leave you now, my dear friend, to reflect how ripe we
are for the most mad and ruinous project that can be suggested,
especially when, in addition to this view, we take into consideration
how thoroughly the patriotic part of the community, the friends of an
efficient government, are discouraged with the present system, and
irritated at the popular demagogues who are determined to keep
themselves in office, at the risk of everything. Thence apprehensions
are formed, that, though the measures proposed by the Convention may
not be equal to the wishes of the most enlightened and virtuous, yet
that they will be too high-toned to be adopted by our popular
assemblies. Should that happen, our political ship will be left afloat
on a sea of chance, without a rudder as well as without a pilot."
(Works of Hamilton, I. 443.) In a grave and comprehensive private
memorandum, drawn up by Hamilton soon after the Constitution appeared,
in which he summed up the probabilities for and against its adoption,
and the consequences of its rejection, the following occurs, as among
the events likely to follow such rejection: "A reunion with Great
Britain, from universal disgust at a state of commotion, is not
impossible, though not much to be feared. The most plausible shape of
such a business would be, the establishment of a son of the present
monarch in the supreme government of this country, with a family
compact." (Works, II. 419, 421.)

[396] Pennsylvania Journal, August 22, 1787.

[397] The history of the term "Federal," or "Federalist," offers a
curious illustration of the capricious changes of sense which
political designations often undergo, within a short period of time,
according to the accidental circumstances which give them their
application. During the discussions of the Convention which framed the
Constitution of the United States, the term _federal_ was employed in
its truly philosophic sense, to designate the nature of the government
established by the Articles of Confederation, in distinction from a
national system, that would be formed by the introduction of the plan
of having the States represented in the Congress in proportion to the
numbers of their inhabitants. But when the Constitution was before the
people of the States for their adoption, its friends and advocates
were popularly called Federalists, because they favored an enlargement
of the Federal government at the expense of some part of the State
sovereignties, and its opponents were called the Anti-Federalists. In
this use, the former term in no way characterized the nature of the
system advocated, but merely designated a supporter of the
Constitution. A few years later, when the first parties were formed,
in the first term of Washington's Administration, it so happened that
the leading men who gave a distinct character to the development which
the Constitution then received had been prominent advocates of its
adoption, and had been known therefore as Federalists, as had also
been the case with some of those who separated themselves from this
body of persons and formed what was termed the Republican, afterwards
the Democratic party. But the prominent supporters of the policy which
originated in Washington's administration continued to be called
Federalists, and the term thus came to denote a particular school of
politics under the Constitution, although it previously signified
merely an advocacy of its adoption. Thus, for example, Hamilton, in
1787, was no Federalist, because he was opposed to the continuance of
a federal, and desired the establishment of a national government. In
1788, he was a Federalist, because he wished the Constitution to be
adopted; and he afterwards continued to be a Federalist, because he
favored a particular policy in the administration of the government,
under the Constitution. It was in this latter sense that the term
became so celebrated in our political history. The reader will observe
that I use it, of course, in this work, only in the sense attached to
it while the Constitution was before the people of the States for
adoption.

[398] A striking proof of the importance attached by the people to the
opinions of Washington and Franklin may be found in a controversy
carried on for a short time in the newspapers of Philadelphia and New
York, after the Constitution appeared, whether those distinguished
persons _really approved_ what they had signed.

[399] All but Maryland and Rhode Island.

[400] Passed September 28, 1787. Journals, XII. 149-166.

[401] This is the substance of a careful account given by General Knox
to General Washington. (Works of Washington, IX. 310, 311.)

[402] A town on the Hudson River, seventy-five miles north of the city
of New York.

[403] He went abroad in the summer of 1784.

[404] Compare Mr. Jefferson's autobiography, and his correspondence,
in the first, second, and third volumes of his collected works
(edition of 1853), and the letters of Mr. Madison.

[405] In the newspapers of the time there is to be found a story that
Mr. Mason was very roughly received on his arrival at the city of
Alexandria, after the adjournment of the national Convention, on
account of his refusal to sign the Constitution. The occurrence is not
alluded to in Washington's correspondence, although he closely
observed Mr. Mason's movements, and regarded them with evident
anxiety. The story is told in the Pennsylvania Journal of October 17,
1787,--a strong Federal paper. I know of no other confirmation of it
than the fact that the people of Alexandria embraced the Constitution
from the first with "enthusiastic warmth," according to the account
given by General Washington to one of his correspondents. (Works, IX.
272.)

[406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346.

[407] This debate of three days in the South Carolina legislature was
one of the most able of all the discussions attending the ratification
of the Constitution. Mr. Lowndes was overmatched by his antagonists,
but he resisted with great spirit, finally closed with the declaration
that he saw dangers in the proposed government so great, that he could
wish, when dead, for no other epitaph than this: "Here lies the man
that opposed the Constitution, because it was ruinous to the liberty
of America." He lived to find his desired epitaph a false prophecy. He
was the father, of the late William Lowndes, who represented the State
of South Carolina in Congress, with so much honor and distinction,
during the administration of Mr. Madison.

[408] Mr. Martin's objections extended to many of the details of the
Constitution, but his great argument was that directed against its
system of representation, which he predicted would destroy the State
governments.

[409] Hamilton, Works, II. 419, 420.

[410] Hamilton, Works, II. 421.



CHAPTER II.

RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA, AND
CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR 1787.--BEGINNING OF
THE YEAR 1788.--RATIFICATION OF MASSACHUSETTS, THE SIXTH STATE, WITH
PROPOSITIONS OF AMENDMENT.--RATIFICATION OF MARYLAND, WITHOUT
OBJECTION.--SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS, AND PROPOSES
AMENDMENTS.


The first State that ratified the Constitution, although its
convention was not the first to assemble, was Delaware. It was a
small, compact community, with the northerly portion of its territory
lying near the city of Philadelphia, with which its people had
constant and extensive intercourse. Its public men were intelligent
and patriotic. In the national Convention it had contended with great
spirit for the interests of the smaller States, and its people now had
the sagacity and good sense to perceive that they had gained every
reasonable security for their peculiar rights. The public press of
Philadelphia friendly to the Constitution furnished the means of
understanding its merits, and the discussions in the convention of
Pennsylvania, which assembled before that of Delaware, threw a flood
of light over the whole subject, which the people of Delaware did not
fail to regard. Their delegates unanimously ratified and adopted the
Constitution on the 7th of December.

The convention of Pennsylvania met, before that of any of the other
States, at Philadelphia, on the 20th of November. It was the second
State in the Union in population. Its chief city was perhaps the first
in the Union in refinement and wealth, and had often been the scene of
great political events of the utmost interest and importance to the
whole country. There had sat, eleven years before, that illustrious
Congress of deputies from the thirteen Colonies, who had declared the
independence of America, had made Washington commander-in-chief of her
armies, and had given her struggle for freedom a name throughout the
world. There, the Revolutionary Congress had continued, with a short
interruption, to direct the operations of the war. There, the alliance
with France was ratified, in 1778. There, the Articles of
Confederation were finally carried into full effect, in 1781. There,
within six months afterwards, the Congress received intelligence of
the surrender of Cornwallis, and walked in procession to one of the
churches of the city, to return thanks to God for a victory which in
effect terminated the war. There, the instructions for the treaty of
peace were given, in 1782, and there the Constitution of the United
States had been recently framed. For more than thirteen years, since
the commencement of the Revolution, and with only occasional
intervals, the people of Philadelphia had been accustomed to the
presence of the most eminent statesmen of the country, and had
learned, through the influences which had gone forth from their city,
to embrace in their contemplation the interests of the Union.

They placed in the State convention, that was to consider the proposed
Constitution of the United States, one of the wisest and ablest of its
framers,--James Wilson. The modesty of his subsequent career,[411] and
the comparatively little attention that has been bestowed by
succeeding generations upon the personal exertions that were made in
framing and establishing the Constitution, must be regarded as the
causes that have made his reputation, at this day, less extensive and
general than his abilities and usefulness might have led his
contemporaries to expect that it would be. Yet the services which he
rendered to the country, first in assisting in the preparation of the
Constitution, and afterwards in securing its adoption by the State of
Pennsylvania, should place his name high upon the list of its
benefactors. He had not the political genius which gave Hamilton such
a complete mastery over the most complex subjects of government, and
which enabled him, when the Constitution had been adopted, to give it
a development in practice that made it even more successful than its
theory alone could have allowed any one to regard as probable; nor had
he the talent of Madison for debate and for constitutional analysis;
but in the comprehensiveness of his views, and in his perception of
the necessities of the country, he was not their inferior, and he was
throughout one of their most efficient and best informed coadjutors.

He had to encounter, in the convention of the State, a body of men, a
majority of whom were not unfriendly to the Constitution, but among
whom there was a minority very hard to be conciliated. In the counties
which lay west of the Susquehanna,--the same region which afterwards,
in Washington's administration, became the scene of an insurrection
against the authority of the general government,--there was a
rancorous, active, and determined opposition. Mr. Wilson, being the
only member of the State convention who had taken part in the framing
of the Constitution, was obliged to take the lead in explaining and
defending it. His qualifications for this task were ample. He had been
a very important and useful member of the national Convention; he had
read every publication of importance, on both sides of the question,
that had appeared since the Constitution was published, and his legal
and historical knowledge was extensive and accurate. No man succeeded
better than he did, in his arguments on that occasion, in combating
the theory that a State government possessed the whole political
sovereignty of the people of the State. However true it might be, he
said, in England, that the Parliament possesses supreme and absolute
power, and can make the constitution what it pleases, in America it
has been incontrovertible since the Revolution, that the supreme,
absolute, and uncontrollable power is in the people, before they make
a constitution, and remains in them after it is made. To control the
power and conduct of the legislature by an overruling constitution,
was an improvement in the science and practice of government reserved
to the American States; and at the foundation of this practice lies
the right to change the constitution at pleasure,--a right which no
positive institution can ever take from the people. When they have
made a State constitution, they have bestowed on the government
created by it a certain portion of their power; but the fee simple of
their power remains in themselves.

Mr. Wilson was equally clear in accounting for the omission to insert
a bill of rights in the Constitution of the United States. In a
government, he observed, consisting of enumerated powers, such as was
then proposed for the United States, a bill of rights, which is an
enumeration of the powers reserved by the people, must either be a
perfect or an imperfect statement of the powers and privileges
reserved. To undertake a perfect enumeration of the civil rights of
mankind, is to undertake a very difficult and hazardous, and perhaps
an impossible task; yet if the enumeration is imperfect, all implied
power seems to be thrown into the hands of the government, on subjects
in reference to which the authority of government is not expressly
restrained, and the rights of the people are rendered less secure than
they are under the silent operation of the maxim that every power not
expressly granted remains in the people. This, he stated, was the view
taken by a large majority of the national Convention, in which no
direct proposition was ever made, according to his recollection, for
the insertion of a bill of rights.[412] There is, undoubtedly, a
general truth in this argument, but, like many general truths in the
construction of governments, it may be open to exceptions when applied
to particular subjects or interests. It appears to have been, for the
time, successful; probably because the opponents of the Constitution,
with whom Mr. Wilson was contending, did not bring forward specific
propositions for the declaration of those particular rights which were
made the subjects of special action in other State conventions.

Besides a very thorough discussion of these great subjects, Mr. Wilson
entered into an elaborate examination and defence of the whole system
proposed in the Constitution. He was most ably seconded in his efforts
by Thomas McKean, then Chief Justice of Pennsylvania and afterwards
its Governor, the greater part of whose public life had been passed in
the service of Delaware, his native State, and who had always been a
strenuous advocate of the interests of the smaller States, but who
found himself satisfied with the provision for them made by the
Constitution for the construction of the Senate of the United
States.[413] "I have gone," said he, "through the circle of office, in
the legislative, executive, and judicial departments of government;
and from all my study, observation, and experience, I must declare,
that, from a full examination and due consideration of this system, it
appears to me the best the world has yet seen. I congratulate you on
the fair prospect of its being adopted, and am happy in the
expectation of seeing accomplished what has long been my ardent wish,
that you will hereafter have a salutary permanency in magistracy and
stability in the laws."

The result of the discussion in the convention of Pennsylvania was the
ratification of the Constitution. The official ratification sent to
Congress was signed by a very large majority of the delegates, and
contains no notice of any dissent.[414] But the representatives of
that portion of the State which lay west of the Susquehanna generally
refused their assent, and their district afterwards became the place
in which the proposition was considered whether the government should
be allowed to be organized.[415]

The convention of New Jersey was in session at the time of the
ratification by Pennsylvania. Mr. Madison had passed through the
State, in the autumn, on his way to the Congress, then sitting in the
city of New York, and could discover no evidence of serious opposition
to the Constitution. Lying between the States of New York and
Pennsylvania, New Jersey was closely watched by the friends and the
opponents of the Constitution in both of those States, and was likely
to be much influenced by the predominating sentiment in the one that
should first act.[416] But the people of New Jersey had, in truth,
fairly considered the whole matter, and had found what their own
interests required. They alone, of all the States, when the national
Convention was instituted, had expressly declared that the regulation
of commerce ought to be vested in the general government. They had
learned that to submit longer to the diverse commercial and revenue
systems in force in New York on the one side of them, and in
Pennsylvania on the other side, would be like remaining between the
upper and the nether millstone. Their delegates in the national
Convention had, it is true, acted with those of New York, in the long
contest concerning the representative system, resisting at every step
each departure from the principle of the Confederation, until the
compromise was made which admitted the States to an equal
representation in the Senate. Content with the security which this
arrangement afforded, the people of New Jersey had the sagacity to
perceive that their interests were no longer likely to be promoted by
following in the lead of the Anti-Federalists of New York. Their
delegates unanimously ratified the Constitution on the 12th of
December, five days after the ratification of Pennsylvania.

A few days later, there came from the far South news that the
convention of Georgia had, with like unanimity, adopted the
Constitution. Neither the people of the State, nor their delegates,
could well have acted under the influence of what was taking place in
the centre of the Union. Their situation was too remote for the
reception, at that day, within the same fortnight, of the news of
events that had occurred in Pennsylvania and New Jersey, and they
could scarcely have read the great discussions that were going on in
various forms of controversy in the cities of New York and
Philadelphia, and throughout the Middle and the Eastern States. Wasted
excessively during the Revolution, by the nature of the warfare
carried on within her limits; left at the peace to contend with a
large, powerful, and cruel tribe of Indians, that pressed upon her
western settlements; and having her southern frontier bordering upon
the unfriendly territory of a Spanish colony,--the State of Georgia
had strong motives to lead her to embrace the Constitution of the
United States, and found little in that instrument calculated to draw
her in the opposite direction. Her delegates had resisted the
surrender of control over the slave-trade, but they had acquiesced in
the compromise on that subject, and there was in truth nothing in the
position in which it was left that was likely to give the State
serious dissatisfaction or uneasiness. The people of Georgia had
something more important to do than to quarrel with their
representatives about the principles or details of the system to which
they had consented in the national Convention. They felt the want of a
general government able to resist, with a stronger hand than that of
the Confederation, the evils which pressed upon them.[417] Their
assent was unanimously given to the Constitution on the 2d of January,
1788.

The legislature of Connecticut had ordered a convention to be held on
the 4th of January. When the elections were over, it was ascertained
that there was a large majority in favor of the Constitution; but
there was to be some opposition, proceeding principally from that
portion of the people who resisted whatever tended to the vigor and
stability of government,--a spirit that existed to some extent in all
the New England States. When the convention of the State assembled,
the principal duty of advocating the adoption of the Constitution
devolved on Oliver Ellsworth, who had borne an active and
distinguished part in its preparation. He found that the topic which
formed the chief subject of all the arguments against the
Constitution, was the general power of taxation which it would confer
on the national government, and the particular power of laying
imposts. Mr. Ellsworth was eminently qualified to explain and defend
the proposed revenue system. While he contended for the necessity of
giving to Congress a general power to levy direct taxes, in order that
the government might be able to meet extraordinary emergencies, and
thus be placed upon an equality with other governments, he
demonstrated by public and well-known facts that an indirect revenue,
to be derived from imposts, would be at once the easiest and most
reliable mode of defraying the ordinary expenses of the government,
because it would interfere less than any other form of taxation with
the internal police of the States; and he argued, from sufficient
data, that a very small rate of duty would be enough for this
purpose.[418] Under his influence and that of Oliver Wolcott, Richard
Law, and Governor Huntington, the Constitution was ratified by a large
majority, on the 9th of January.[419]

The action of Connecticut completed the list of the States that
ratified the Constitution without any formal record of objections, and
without proposing or insisting upon amendments. The opposition in
these five States had been overcome by reason and argument, and they
were a majority of the whole number of States whose accession was
necessary to the establishment of the government. But a new act in the
drama was to open with the new year. The conventions of Massachusetts,
New York, and Virginia were still to meet, and each of them was full
of elements of opposition of the most formidable character, and of
different kinds, which made the result in all of them extremely
doubtful. If all the three were to adopt the Constitution, still one
more must be gained from the States of New Hampshire, Maryland, and
North and South Carolina. The influence of each accession to the
Constitution on the remaining States might be expected to be
considerable; but, unfortunately, the convention of New Hampshire was
to meet five months before those of Virginia and New York, and a large
number of its members had been instructed to reject the Constitution.
If New Hampshire and Massachusetts were to refuse their assent in the
course of the winter, the States that were to act in the spring could
scarcely be expected to withstand the untoward influence of such an
example, which would probably operate with a constantly accelerating
force throughout the whole number of the remaining States.

The convention of Massachusetts commenced its session on the 9th of
January, the same day on which that of Connecticut closed its
proceedings. The State certainly held a very high rank in the Union.
Her Revolutionary history was filled with glory; with sufferings
cheerfully borne; with examples of patriotism that were to give her
enduring fame. The blood of martyrs in that cause, which she had made
from the first the cause of the whole country, had been poured
profusely upon her soil, and in the earlier councils of the Union she
had maintained a position of commanding influence. But there had been
in her political conduct, since the freedom of the country was
achieved, an unsteadiness and vacillation of which her former
reputation gave no presage. In 1783, the legislature had refused to
give the revenue powers asked for by the Congress, for the miserable
reason that the Congress had granted half-pay for life to the officers
of the Revolutionary army. In May, 1785, the legislature adopted a
resolution for a convention of the States to consider the subject of
enlarging the powers of the Federal Union, and in the following
November they rescinded it. These, and other occurrences, when
remembered, gave the friends of the Constitution elsewhere great
anxiety, as they turned their eyes towards Massachusetts. They were
fully aware, too, that the recent insurrection in that State, and the
severe measures which had followed it, had created divisions in
society which it would be difficult, if not impossible, to heal.

But it was not easy for the most intelligent men out of the State to
appreciate fully all the causes that exposed the Constitution of the
United States to a peculiar hazard in Massachusetts, and made it
necessary to procure its ratification by a kind of compromise with the
opposition for a scheme of amendments. In no State was the spirit of
liberty more jealous and exacting. In the midst of the Revolution, and
led by the men who had carried on the profound discussions which
preceded it,--discussions in which the natural rights of mankind and
the civil rights of British subjects were examined and displayed as
they had never been before,--the people of Massachusetts had framed a
State constitution, filled with the most impressive maxims and the
most solemn securities with which public liberty has ever been
invested. Not content to trust obvious truths to implication, they
expressly declared that government is instituted for the happiness and
welfare of the governed, and they fenced it round not only with the
chief restrictions gained by their English ancestors, from Magna
Charta down to the Revolution of 1688, but with many safeguards which
had not descended to them from Runnymede or Westminster. It may be
that an anxious student of politics, examining the early constitution
of Massachusetts,--happily in its most important features yet
unchanged,--would pronounce it unnecessarily careful of personal
rights and too jealous for the interests of liberty. But no
intelligent mind, thoughtful of the welfare of society, can now think
that to have been an excess of wisdom which formed a constitution of
republican government that has so well withstood the assaults of
faction and the levelling tendencies of a levelling age, and has
withstood them because, while it carefully guarded the liberties of
the people, it secured those liberties by institutions which stand as
bulwarks between the power of the many and the rights of the few.

It may hereafter become necessary for me to consider what degree of
importance justly belongs to the amendments which the State of
Massachusetts, and to those which other States, so impressively
insisted ought to be made to the Constitution of the United States.
Without at present turning farther aside from the narrative of events,
I content myself here with observing, that, whether the alleged
defects in the Constitution were important or unimportant, a people
educated as the people of Massachusetts had been would naturally
regard some provisions as essential which they did not find in the
plan presented to them.

The general aspect of parties in Massachusetts, down to the time when
the convention met, has been already considered. In the convention
itself there was a majority originally opposed to the Constitution;
and if a vote had been taken at any time before the proposition for
amendments was brought forward, the Constitution would have been
rejected. The opposition consisted of a full representation of the
various parties and interests already described as existing among the
people of the State who were unfriendly to it. One contemporary
account gives as many as eighteen or twenty members, who had actually
been out in what was called Shays's "army." Whether this enumeration
was strictly correct or not, it is well known that the western
counties of the State sent a large number of men whose sympathies were
with that insurrection, who were friends of paper money and tender
laws, and enemies of any system that would promote the security of
debts. The members from the province of Maine had their own special
objects to pursue. In addition to these were the honest and
well-meaning doubters, who had examined the Constitution with care and
objected to it from principle. The anticipated leader of this
miscellaneous host was that celebrated and ardent patriot of the
Revolution, Samuel Adams. With all his energy and his iron
determination of character, however, he could be cautious when caution
was expedient. He had read the Constitution, and all the principal
publications respecting it which had then appeared, and down to the
time of the meeting of the convention he had maintained a good deal of
reserve. But it was known that he disapproved of it.

This remarkable man--often called the American Cato--was far better
fitted to rouse and direct the storms of revolution, than to
reconstruct the political fabric after revolution had done its work.
He had the passionate love of liberty, fertility of resource, and
indomitable will, which are most needed in a truly great leader of a
popular struggle with arbitrary power. But that struggle over, his
usefulness in an emergency like the one in which Massachusetts was now
placed was limited to the actual necessity for the intervention of an
extreme devotion to the maxims and principles of popular freedom. He
believed that there was such a necessity, and he acted always as he
believed. But his influence, at this time, was by no means
commensurate with his power and reputation at a former day, and he
appears to have wisely avoided a direct contest with the large body of
very able men who supported the Constitution.

That body of men would certainly have been, in any assembly convened
for such a purpose, an overmatch in debate for Samuel Adams; for they
were the civilians Fisher Ames, Parsons, King, Sedgwick, Gorham, Dana,
Gore, Bowdoin, and Sumner, the Revolutionary officers Heath, Lincoln,
and Brooks, and several of the most distinguished clergymen in the
State. The names of the members who acted on the same side with Mr.
Adams, and were then regarded as leaders of the opposition, have
reached posterity in no other connection.[420] But some of the
elements of which that opposition was composed could not be controlled
by any superiority in debate, and were, therefore, little in need of
great powers of discussion or great wisdom in council. So far as their
objections related to the powers to be conferred on the general
government, or to the structure of the proposed system, they could be
answered, and many of them could be, and were, convinced. But with
respect to what they considered the defects of the Constitution,
theoretical reasoning, however able, could have no influence over men
whose minds were made up; and it became, as the reader will see,
necessary to make an effort to gain a majority by some course of
action which would involve the concession that the proposed system
required amendment.

There were great hazards attending this course, in reference to its
effect on other States, although it was not impossible to procure by
it the ratification of this convention. Notwithstanding all that had
detracted from the former high standing of the State,--notwithstanding
the easy explanation that might be given of the influence of her late
internal disturbances upon her subsequent political affairs,--she was
still Massachusetts; still she was the eldest of all the States but
one,--still she held in the sacred places of her soil the bones of the
first martyrs to liberty,--still she was renowned, as she has ever
been, for her intelligence,--still she wore a name of more than
ordinary consideration among her sisters of the Confederacy. If it
should go forth to New York, to Virginia, to the Carolinas, that
Massachusetts had pronounced the Constitution unfit for the acceptance
of a free people, or had declared that public liberty could not be
preserved under it without the addition of provisions which its
framers had not made, the effect might be disastrous beyond all
previous calculation. The legislature of New York, in session at the
same time with the convention of Massachusetts, was much divided on
the question of submitting the Constitution to a convention, and it
was the opinion of careful observers that the result in either way in
the latter State would involve that in the former. In Virginia the
elections for their convention were soon to take place. In
Pennsylvania the minority were becoming restless under their defeat,
and were agitating plans which looked to the obstruction of the
government when an attempt should be made to organize it. The
convention of South Carolina was not to meet until May, and North
Carolina stood in an extremely doubtful position. A great weight of
responsibility rested therefore upon the convention of Massachusetts.

Its proceedings commenced with a desultory debate upon the several
parts of the instrument, which lasted until the 30th of January; the
friends of the Constitution having carefully provided, by a vote at
the outset, that no separate question should be taken. The discussion
of the various objections having been exhausted, Parsons[421] moved
that the instrument be assented to and ratified. One or two general
speeches followed this motion, and then Hancock, the President of the
convention, descended from the chair, and, with some conciliatory
observations, laid before it a proposition for certain amendments.
This step was not taken by him upon his own suggestion merely,
although he was doubtless very willing to be the medium of a
reconciliation between the contending parties. He was at that time
Governor of the State, and had been placed in the chair of the
convention, partly in deference to his official station and his
personal eminence, and partly because he held a rather neutral
position with respect to the Constitution. These circumstances, as
well as his Revolutionary distinction, led the friends of the
Constitution to seek his intervention; and his love of popularity and
deference made the office of arbitrator exceedingly agreeable to him.
The selection was a wise one, for Hancock had great influence with the
classes of men composing the opposition, and he could not be suspected
of any undue admiration of the system the adoption of which he was to
recommend.

He proceeded with characteristic caution. It does not appear, from
what is preserved of the remarks with which he presented his
amendments, whether he intended they should become a condition
precedent to the ratification, or should be adopted as a
recommendation subsequent to the assent of the convention to the
Constitution then before it. He brought them forward, he said, to
quiet the apprehensions and remove the doubts of gentlemen, relying on
their candor to bear him witness that his wishes for a good
constitution were sincere. But the form of ratification which he
proposed contained a distinct and separate acceptance of the
Constitution, and the amendments followed it, with a recommendation
that they "be introduced into the said Constitution." Samuel Adams,
with much commendation of the Governor's proposition, immediately
affected to understand it as recommending conditional amendments, and
advocated it in that sense. Other members of the opposition understood
it in the opposite sense, and, fearing its effect, insisted that the
convention had no power to propose amendments, and that there could be
no probability that, if recommended to the attention of the first
Congress that might sit under the Constitution, they would ever be
adopted. Upon both of these points, the arguments of the other side
were sufficient to convince a few of the more candid members of the
opposition, and the Constitution was ratified on the 7th of February,
by a majority of nineteen votes,[422] the ratification being followed
by a recommendation of certain amendments, and an injunction addressed
to the representatives of the State in Congress to insist at all times
on their being considered and acted upon in the mode provided by the
fifth article of the Constitution.

The smallness of the majority in favor of the Constitution was in a
great degree compensated by the immediate conduct of those who had
opposed it. Many of them, before the final adjournment, expressed
their determination, now that it had received the assent of a
majority, to exert all their influence to induce the people to
anticipate the blessings which its advocates expected from it. They
acted in accordance with their professions; and those portions of the
people whose sentiments they had represented exhibited generally the
same candor and patriotism, and acquiesced at once in the result. This
course of the opposition in Massachusetts was observed elsewhere, and
largely contributed to give to the action of the State, in proposing
amendments, a salutary influence in some quarters, which would
otherwise have probably failed to attend it.

The amendments proposed by the convention of Massachusetts were, as
was claimed by those who advocated them, of a general, and not a local
character; but they were at the same time highly characteristic of the
State. They may be divided into three classes. One of them embraced
that general declaration which was afterwards incorporated with the
amendments to the Constitution, and which expressly reserved to the
States or the people the powers not delegated to the United States.
Another class of them comprehended certain restraints upon the powers
granted to Congress by the Constitution, with respect to elections,
direct taxes, the commercial power, the jurisdiction of the courts,
and the power to consent to the holding of titles or offices conferred
by foreign sovereigns. The third class contemplated the two great
provisions of a presentment by a grand jury, for crimes by which an
infamous or a capital punishment might be incurred, and trial by jury
in civil actions at the common law between citizens of different
States.

The people of Boston, although in general strongly in favor of the
Constitution, had carefully abstained from every attempt to influence
the convention. But now that the ratification was carried, they
determined to give to the event all the importance that belonged to
it, by public ceremonies and festivities. On the 17th of February,
there issued from the gates of Faneuil Hall an imposing procession of
five thousand citizens, embracing all the trades of the town and its
neighborhood, each with its appropriate decorations, emblems, and
mottoes. In the centre of this long pageant, to mark the relation of
everything around it to maritime commerce, and the relation of all to
the new government, was borne the ship Federal Constitution, with full
colors flying, and attended by the merchants, captains, and seamen of
the port.[423] On the following day, the rejoicings were terminated by
a public banquet, at which each of the States that had then adopted
the Constitution was separately toasted, the minorities of
Connecticut and Massachusetts were warmly praised for their frank and
patriotic submission, and strong hopes were expressed of the State of
New York.

In this manner the Federalists of Massachusetts wisely sought to
kindle the enthusiasm of the country, and to conciliate the opinion of
the States which were still to act, in favor of the new Constitution.
The influence of their course did not fail in some quarters. In the
convention of New Hampshire, which assembled immediately after that of
Massachusetts was adjourned, although there was a majority who, either
bound by instructions or led by their own opinions, would have
rejected the Constitution if required to vote upon it immediately, yet
that same majority was composed chiefly of men willing to hear
discussion, willing to be convinced, and likely to feel the influence
of what had occurred in the leading State of New England. There was a
body of Federalists in New Hampshire acting in concert with the
leading men of that party in Massachusetts. They caused the same form
of ratification and the same amendments which had been adopted in the
latter State, with some additional ones, to be presented to their own
convention.[424] The discussions changed the opinions of many of the
members, but it was not deemed expedient to incur the hazard of a
vote. The friends of the Constitution found it necessary to consent to
an adjournment, in order that the instructed delegates might have an
opportunity to lay before their constituents the information which
they had themselves received, and of which the people in the more
remote parts of the State were greatly in need. Unfortunately,
however, for the course of things in other States, the occurrence of a
general election in New Hampshire made it necessary to adjourn the
convention until the middle of June. We have seen what was the effect
of this proceeding in Virginia, where it was both misunderstood and
misrepresented. But it saved the Constitution in New Hampshire.

Six States only, therefore, had adopted the Constitution at the
opening of the spring of 1788. The convention of Maryland assembled at
Annapolis on the 21st of April. The convention of South Carolina was
to follow in May, and the conventions of Virginia and New York were to
meet in June. So critical was the period in which the people of
Maryland were to act, that Washington considered that a postponement
of their decision would cause the final defeat of the Constitution;
for if, under the influence of such a postponement, following that of
New Hampshire, South Carolina should reject it, its fate would turn
on the determination of Virginia.

The people of Maryland appear to have been fully aware of the
importance of their course. They not only elected a large majority of
delegates known to be in favor of the Constitution, but a majority of
the counties instructed their members to ratify it as speedily as
possible, and to do no other act. This settled determination not to
consider amendments, and not to have the action of the State
misinterpreted, or its influence lost, gave great dissatisfaction to
the minority. Their efforts to introduce amendments were disposed of
quite summarily. The majority would entertain no proposition but the
single question of ratification, which was carried by sixty-three
votes against eleven, on the 28th of April.

On the first of May, there were public rejoicings and a procession of
the trades, in Baltimore, followed by a banquet, a ball, and an
illumination. In this procession, the miniature ship "Federalist,"
which was afterwards presented to General Washington, and long rode at
anchor in the Potomac opposite Mount Vernon, was carried, as the type
of commerce and the consummate production of American naval
architecture.[425] The next day a packet sailed from the port of
Baltimore for Charleston, carrying the news of the ratification by
Maryland.[426] In how many days this "coaster" performed her voyage
is not known; but it is a recorded, though now forgotten, fact among
the events of this period, that on her return to Baltimore, where she
arrived on Saturday the 31st of May, the same vessel brought back the
welcome intelligence, that on the 23d of that month, "at five o'clock
in the afternoon," the convention of South Carolina had ratified the
Constitution of the United States. A salute of cannon on Federal Hill,
in the neighborhood of Baltimore, spread the joyful news far down the
waters of the Chesapeake to the shores of Virginia, and bold express
riders placed it in Philadelphia before the following Monday evening.

Such was the anxiety with which the friends of the Constitution in the
centre of the Union watched the course of events in the remaining
States. The accession of South Carolina was naturally regarded as very
important. Her delegates in the national Convention had assumed what
might be thought, at home and elsewhere, to be a great responsibility.
They had taken a prominent part in the settlement of the compromises
which became necessary between the Northern and the Southern States.
They had consented to a full commercial power, to be exercised by a
majority in both houses of Congress; to a power to extinguish the
slave-trade in twenty years; and to a power of direct and indirect
taxation, exports alone excepted. Would the people of South Carolina
consider the provisions made for their peculiar demands as equivalents
for what had been surrendered? Would they acquiesce in a system
founded in the necessities for local sacrifices, standing as they did
at the extremity of the interests involved in the Southern side of the
adjustment?

It is not probable that the people of South Carolina, at the time of
their adoption of the Constitution, supposed that they had any solid
reasons for dissatisfaction with such of its arrangements as in any
way concerned the subject of slavery. A good deal was said, _ad
captandum_, by the opponents of the Constitution, on these points, but
it does not appear to have been said with much effect. No man who has
ever been placed by the State of South Carolina in a public position,
has been more true to her interests and rights than General Pinckney;
and General Pinckney furnished to the people of the State--speaking
from his place in the legislature on his return from the national
Convention--what he considered, and they received, as a complete
answer to all that was addressed to their local fears and prejudices,
on these particular topics. When he had shown that, by the universal
admission of the country, the Constitution had given to the general
government no power to emancipate the slaves within the several
States, and that it had secured a right which did not previously
exist, of recovering those who might escape into other States; that
the slave-trade would remain open for twenty years, a period that
would suffice for the supply of all the labor of that kind which the
State would require; and that the admission of the blacks into the
basis of representation was a concession in favor of the State, of
singular importance as well as novelty;--he had disposed of every
ground of opposition relating to these points. And so the people of
the State manifestly considered.

But there was one part of the arrangements included in the
Constitution, on which they appear to have thought that they had more
reason to pause; and it is quite important that we should understand
both the grounds of their doubt, and the grounds on which they yielded
their assent to this part of the system. South Carolina was then, and
was ever likely to be, a great exporting State. Some of her people
feared that, if a full power to regulate commerce by the votes of a
majority in the two houses of Congress were to be exercised in the
passage of a navigation act, the Eastern States, in whose behalf they
were asked to grant such a power, would not be able to furnish
shipping enough to export the products of the planting States. This
apprehension arose entirely from a want of information; which some of
the friends of the Constitution supplied, while it was under
discussion. They showed that, if all the exported products of
Virginia, the Carolinas, and Georgia were obliged to be carried in
American bottoms, the Eastern States were then able to furnish more
than shipping enough for the purpose; and that this shipping must also
compete with that of the Middle States. Still it remained true, that
the grant of the commercial power would enable a majority in Congress
to exclude foreign vessels from the carrying trade of the United
States, and so far to enhance the freights on the products of South
Carolina. What then were the motives which appear to have led the
convention of that State to agree to this concession of the commercial
power?

It is evident from the discussions which took place in the
legislature, and which had great influence in the subsequent
convention, that the attention of the people of South Carolina was not
confined to the particular terms and arrangements of the compromises
which took place in the formation of the Constitution. They looked to
the propriety, expediency, and justice of a general power to regulate
commerce, apart from the compromise in which it was involved. They
admitted the commercial distresses of the Northern States; they saw
the policy of increasing the maritime strength of those States, in
order to encourage the growth of a navy; and they considered it
neither prudent, nor fit, to give the vessels of all foreign nations a
right to enter American ports at pleasure, in peace and in war, and
whatever might be the commercial legislation of those nations towards
the United States. For these reasons, a large majority of the people
of South Carolina were willing to make so much sacrifice, be it more
or less, as was involved in the surrender to a majority in Congress
of the power to regulate commerce.[427]

Still, the Constitution was not ratified without a good deal of
opposition on the part of a considerable minority. As the convention
drew towards the close of its proceedings, an effort was made to carry
an adjournment to the following autumn, in order to gain time for the
anticipated rejection of the Constitution by Virginia. This motion
probably stimulated the convention to act more decisively than they
might otherwise have done, for it touched the pride of the State in
the wrong direction. After a spirited discussion it was rejected by a
majority of forty-six votes, and the Constitution was thereupon
ratified by a majority of seventy-six. Several amendments were then
adopted, to be presented to Congress for consideration, three of which
were substantially the same with three of those proposed by
Massachusetts.[428]

On the 27th of May, there was a great procession of the trades, in
Charleston, in honor of the accession of the State, in which the ship
Federalist, drawn by eight white horses, was a conspicuous object, as
it had been in the processions of other cities.

FOOTNOTES:

[411] See an account of him, _ante_, Vol. I. Book III. Chap. XIV.

[412] This was a mistake. On the 12th of September, Messrs. Gerry and
Mason moved for a committee to prepare a bill of rights, but the
motion was lost by an equal division of the States. Elliot, V. 538.

[413] Mr. McKean, although his residence was at Philadelphia,
represented the lower counties of Delaware in Congress from 1774 to
1783. In 1777 he was made Chief Justice of Pennsylvania, being at the
same time a member of Congress and President of the State of Delaware.

[414] The Constitution was ratified by a vote of 46 to 23.

[415] This was at a meeting held at Harrisburg, September 3d, 1788.

[416] The opposite parties were so much excited against each other,
and the course of New Jersey was viewed with so much interest at
Philadelphia among the "Federalists," that a story found currency and
belief there, to the effect that Clinton, the Governor of New York,
had offered the State of New Jersey, through one of its influential
citizens, one half of the impost revenue of New York, if she would
reject the Constitution. The preposterous character of such a
proposition stamps the rumor with gross improbability. But its
circulation evinces the anxiety with which the course of New Jersey
was regarded in the neighboring States, and it is certain that the
opposition in New York made great efforts to influence it.

[417] The situation of Georgia was brought to the notice of Washington
immediately after his first inauguration as President of the United
States, in an Address presented to him by the legislature of the
State, in which they set forth two prominent subjects on which they
looked for protection to "the influence and power of the Union." One
of these was the exposure of their frontier to the ravages of the
Creek Indians. The other was the escape of their slaves into Florida,
whence they had never been able to reclaim them. Both of these matters
received the early attention of Washington's administration.

[418] He stated the annual expenditure of the government, including
the interest on the foreign debt, at £260,000 (currency), and then
showed that, in the three States of Massachusetts, New York, and
Pennsylvania, £160,000 or £180,000 per annum had been raised by
impost.

[419] Fragments only of the debates in the convention of Connecticut
are known to be preserved. They may be found in the second volume of
Elliot's collection.

[420] Three of them, Widgery, Thompson, and Nason, were from Maine;
there was a Dr. Taylor from the county of Worcester, and a Mr. Bishop
from the county of Bristol. These gentlemen carried on the greater
part of the discussion against the Constitution.

[421] Theophilus Parsons, afterwards the celebrated Chief Justice of
Massachusetts.

[422] Yeas, 187; nays, 168.

[423] This was the first of a series of similar pageants, which took
place in the other principal cities of the Union, in honor of the
ratification of the Constitution.

[424] The form of ratification and the amendments introduced by
Hancock into the convention of Massachusetts were drawn by Theophilus
Parsons. They were probably communicated to General Sullivan, the
President of the New Hampshire convention, by his brother, James
Sullivan, an eminent lawyer of Boston, afterwards Governor of
Massachusetts. The reader should compare the Massachusetts amendments
with those of the other States whose action followed that of
Massachusetts, for the purpose of seeing the influence which they
exerted. (All the amendments may be found in the Journals of the Old
Congress, Vol. XIII., Appendix.) See also _post_, Chap. III., as to
the effect of the course of Massachusetts on the mind of Jefferson.

[425] This little vessel sailed from Baltimore on the 1st of June, and
arrived at Mount Vernon, "completely rigged and highly ornamented," on
the 8th. It was a fine specimen of the then state of the mechanic
arts. See an account of it in Washington's Works, IX. 375, 376.

[426] There was then no land communication between the two places,
that could have carried intelligence in less than a month. A letter
written by General Pinckney to General Washington on the 24th of May,
announcing the result in South Carolina, was more than four weeks on
its way to Mount Vernon. (Washington's Works, IX. 389.) General
Washington had received the same news by way of Baltimore soon after
its arrival there.

[427] See the course of argument of Edward Rutledge, General Pinckney,
Robert Barnwell, Commodore Gillon, and others, as given in Elliot, IV.
253-316.

[428] See the Amendments, Journals of the Old Congress, Vol. XIII.,
Appendix.



CHAPTER III

RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH PROPOSED
AMENDMENTS.


South Carolina was the eighth State that had ratified the
Constitution, and one other only was required for its inauguration. In
this posture of affairs the month of May in the year 1788 was closed.
An intense interest was to be concentrated into the next two months,
which were to decide the question whether the Constitution was ever to
be put into operation. The convention of Virginia was to meet on the
2d, and that of New York on the 17th, of June; the convention of New
Hampshire stood adjourned to the 18th of the same month. The latter
assembly was to meet at Concord, from which place intelligence would
reach the Middle and Southern States through Boston and the city of
New York. The town of Poughkeepsie, where the convention of New York
was to sit, lay about midway between the cities of Albany and New
York, on the east bank of the Hudson. The land route from the city of
New York to Richmond, where the convention of Virginia was to meet,
was of course through the city of Philadelphia. The distance from
Concord to Poughkeepsie, through Boston, Springfield, and Hudson, was
about two hundred and fifty miles. The distance from Poughkeepsie to
Richmond, through the cities of New York, Philadelphia, and Baltimore,
was about four hundred and fifty miles. The public mails, over any
part of these distances, were not carried at a rate of more than fifty
miles for each day, and over a large part of them they could not have
been carried so fast. The information needed at such a crisis could
not wait the slow progress of the public conveyances.

No one could tell how long the conventions of New York and Virginia
might be occupied with the momentous question that was to come before
them. It was evident, however, that there was to be a great struggle
in both of them, and it was extremely important that intelligence of
the final action of New Hampshire should be received in both at the
earliest practicable moment. For, whatever might be the weight due to
the example of New Hampshire under other circumstances, if, before the
conventions of New York and Virginia had decided, it should appear
that nine States had ratified the Constitution, the course of those
bodies might be materially influenced by a fact of so much consequence
to the future position of the Union, and to the relations in which
those two States were to stand to the new government. It was equally
important, too, that whatever might occur in the conventions of New
York and Virginia should be known respectively in each of them, as
speedily as possible. About the middle of May, therefore, Hamilton
arranged with Madison for the transmission of letters between Richmond
and Poughkeepsie, by horse expresses; and by the 12th of June he had
made a similar arrangement with Rufus King, General Knox, and other
Federalists at the East, for the conveyance from Concord to
Poughkeepsie of intelligence concerning the result in New Hampshire.

A very full convention of delegates of the people of Virginia
assembled at Richmond on the 2d of June, embracing nearly all the most
eminent public men of the State, except Washington and Jefferson. All
parties felt the weight of responsibility resting upon the State.
Every State that had hitherto acted finally on the subject had
ratified the Constitution; in three of them it had been adopted
unanimously; in several of the others it had been sanctioned by large
majorities; and in those in which amendments had been proposed, they
had not been made conditions precedent to the adoption. So far,
therefore, as the voice of any State had pronounced the Constitution
defective, or dangerous to any general or particular interest, the
mode of amendment provided by it, to be employed after it had gone
into operation, had been relied upon as sufficient and safe. The
opposition in Virginia were consequently reduced to this
dilemma;--they must either take the responsibility of rejecting the
Constitution entirely, or they must assume the equally hazardous
responsibility of insisting that the ratification of the State should
be given only upon the condition of previous amendments. They were
prepared to do both, or either, according to the prospects of success;
for their convictions were fixed against the system proposed; their
abilities, patriotism, courage, and personal influence were of a high
order; and their devotion to what they deemed the interests of
Virginia was unquestionable.

They were led, as I have already said they were to be, by Patrick
Henry, whose reputation had suffered no abatement since the period
when he blazed into the darkened skies of the Revolution,--when his
untutored eloquence electrified the heart of Virginia, and became, as
has been well said, even "a cause of the national independence."[429]
He had held the highest honors of the State, but had retired, poor,
and worn down by twenty years of public service, to rescue his private
affairs by the practice of a profession which, in some of its duties,
he did not love, and for which he had, perhaps, a single qualification
in his amazing oratorical powers. His popularity in Virginia was
unbounded. It was the popularity that attends genius, when thrown with
heart and soul, and with every impulse of its being, into the cause of
popular freedom; and it was a popularity in which reverence for the
stern independence and the self-sacrificing spirit of the patriot was
mingled with admiration for the splendid gifts of oratory which
Nature, and Nature alone, had bestowed upon him. But Mr. Henry was
rightly appreciated by his contemporaries. They knew that, though a
wise man, his wisdom lacked comprehensiveness, and that the mere
intensity with which he regarded the ends of public liberty was likely
to mislead his judgment as to the means by which it was to be secured
and upheld. The chief apprehension of his opponents, on this important
occasion, was lest the power of his eloquence over the feelings or
prejudices of his auditory might lead the sober reflections of men
astray.

He was at this time fifty-two years of age. Although feeling or
affecting to feel himself an old and broken man, he was yet
undoubtedly master of all his natural powers. Those powers he exerted
to the utmost, to defeat the Constitution in the convention of
Virginia. He employed every art of his peculiar rhetoric, every
resource of invective, of sarcasm, of appeal to the fears of his
audience for liberty; every dictate of local prejudice and State
pride. But he employed them all with the most sincere conviction that
the adoption of the proposed Constitution would be a wrong and
dangerous step. Nor is it surprising that he should have so regarded
it. He had formed to himself an ideal image which he was fond of
describing as the American spirit. This national spirit of liberty,
erring perhaps at times, but in the main true to right and justice as
well as to freedom, was with him a kind of guardian angel of the
republic. He seems to have considered it able to correct its own
errors without the aid of any powerful system of general
government,--capable of accomplishing in peace all that it had
unquestionably effected for the country in war. As he passed out of
the troubles and triumphs of the Revolution into the calmer atmosphere
of the Confederation, his reliance on this American spirit, and his
jealousy for the maxims of public liberty, led him to regard that
system as perfect, because it had no direct legislative authority. He
could not endure the thought of a government, external to that of
Virginia, and yet possessed of the power of direct taxation over the
people of the State. He regarded with utter abhorrence the idea of
laws binding the people of Virginia by the authority of the people of
the United States; and thinking that he saw in the Constitution a
purely national and consolidated government, and refusing to see the
federal principle which its advocates declared was incorporated in its
system of representation, he shut his eyes resolutely upon all the
evils and defects of the Confederation, and denounced the new plan as
a monstrous departure from the only safe construction of a Union. He
belonged, too, to that school of public men--some of whose principles
in this respect it is vain to question--who considered a Bill of
Rights essential in every republican government that is clothed with
powers of direct legislation.

On the first day of the session, at the instance of Mr. Mason, the
convention determined not to take a vote upon any question until the
whole Constitution had been debated by paragraphs; but the
discussions in fact ranged over the whole instrument without any
restriction. The opposition was opened by Henry, in a powerful speech
of a general nature, in which he demanded the reasons for such a
radical change in the character of the general government. That the
new plan was a consolidated government, and not a confederacy, he held
to be indisputable. The language of the preamble, which said _We, the
People_, and not _We, the States_, made this perfectly clear. But
States were the characteristics and the soul of a confederation. If
States were not to be the agents of this new compact, it must be one
great, consolidated, national government of the people of all the
States. This perilous innovation, altogether beyond the powers of the
Convention which had proposed it, had given rise to differences of
opinion which had gone to inflammatory resentments in different parts
of the country. He denied altogether the existence of any necessity
for exposing the public peace to such a hazard.

As soon as Henry had sat down, the Governor, Edmund Randolph, rose, to
place himself in a position of some apparent inconsistency. He had, as
we have seen, refused to sign the Constitution. On his return to
Virginia, he had addressed a long, exculpatory letter to the Speaker
of the House of Delegates, giving his reasons for this refusal; which
were, in substance, that he considered the Constitution required
important amendments, and that, as it would go to the conventions of
the States to be accepted or rejected as a whole, without power to
amend, he thought that his signature would preclude him from proposing
the changes and additions which he deemed essential. This letter had
attracted much attention both in and out of Virginia, and Randolph was
consequently, up to this moment, regarded as a firm opponent of the
Constitution. He chose, however, to incur the charge of that kind of
inconsistency which a statesman should never hesitate to commit, when
he finds that the public good is no longer consistent with his
adherence to a former opinion. He declared that the day of previous
amendments had passed. The ratification of the Constitution by eight
States had placed Virginia and the country in a critical position. If
the Constitution should not be adopted by the number of States
required to put it into operation, there could be no Union; and if it
were to be ratified by that number, and Virginia were to reject it,
she would have at least two States at the south of her which would
belong to a confederacy of which she would not be a member. He should,
therefore, vote for the unconditional adoption of the Constitution,
looking to future amendments, although he had little expectation that
they would be made.

This announcement took the opposition by surprise. But they relaxed
none of their efforts. They subjected every part of the Constitution
to a rigid scrutiny, and to the most subtle course of reasoning, as
well as to one which addressed the prejudices of the common mind. Some
of the most important only of the topics on which they enlarged can be
noticed here.

Their first and chief object was to show that the Constitution
presented a national and consolidated government, in the place of the
Confederation, and that under such a government the liberties of the
people of the States could not be secure. This character of the
proposed government Mr. Mason deduced from the power of direct
taxation, which, he contended, entirely changed the confederacy into
one consolidated government. This power, being at discretion and
unrestrained, must carry everything before it. The general government
being paramount to, and in every respect more powerful than, the State
governments, the latter must give way; for two concurrent powers of
direct taxation cannot long exist together. Assuming that taxes were
to be levied for the use of the general government, the mode in which
they were to be assessed and collected was of the utmost consequence,
and it ought not to be surrendered by the people of Virginia to those
who had neither a knowledge of their situation nor a common interest
with them. He would cheerfully acquiesce in giving an effectual
alternative for the power of direct taxation. He would give the
general government power to demand their quotas of the States, with an
alternative of laying direct taxes in case of non-compliance. The
certainty of this conditional power would, in all probability, prevent
the application of it, and the sums necessary for the Union would then
be raised by the States, and by those who would best know how they
could be raised.

Mr. Henry took a broader ground. He argued that the Constitution
presented a consolidated government, because it spoke in the name of
the People, and not in the name of the States. It was neither a
monarchy like England,--a compact between prince and people, with
checks on the former to secure the liberty of the latter; nor a
confederacy like Holland,--an association of independent States, each
retaining its individual sovereignty; nor yet a democracy, in which
the people retain securely all their rights. It was an alarming
transition from a confederacy to a consolidated government. It was a
step as radical as that which separated us from Great Britain. The
rights of conscience, trial by jury, liberty of the press, all
immunities and franchises, all pretensions to human rights and
privileges, were rendered insecure, if not lost, by such a transition.
It was said that eight States had adopted it. He declared that, if
twelve States and a half had adopted it, he would, with manly
firmness, and in spite of an erring world, reject it. "You are not to
inquire," said he, "how your trade may be increased, or how you are to
become a great and prosperous people, but how your liberties may be
secured";--and then, kindling with the old fire of his earlier days,
and with the recollection of what he had done and suffered for the
liberties of his country, he broke forth in one of his most indignant
and impassioned moods.[430]

Madison, always cool, clear, and sensible, answered these objections.
He described the new government as having a mixed character. It would
be in some respects federal, in others consolidated. The manner in
which it was to be ratified established this double character. The
parties to it were to be the people, but not the people as composing
one great society, but the people as composing thirteen sovereignties.
If it were a purely consolidated government, the assent of a majority
of the people would be sufficient to establish it. But it was to be
binding on the people of a State only by their own separate consent;
and if adopted by the people of all the States, it would be a
government established, not through the intervention of their
legislatures, but by the people at large. In this respect, the
distinction between the existing and the proposed governments was very
material.

The mode in which the Constitution was to be amended also displayed
its mixed character. A majority of the States could not introduce
amendments, nor yet were all the States required; three fourths of
them must concur in alterations; and this constituted a departure from
the federal idea. Again, the members of one branch of the legislature
were to be chosen by the people of the States in proportion to their
numbers; the members of the other were to be elected by the States in
their equal and political capacities. Had the government been
completely consolidated, the Senate would have been chosen in the same
way as the House; had it been completely federal, the House would have
been chosen in the same way as the Senate. Thus it was of a complex
nature; and this complexity would be found to exclude the evils of
absolute consolidation and the evils of a mere confederacy. Finally,
if Virginia were separated from all the States, her power and
authority would extend to all cases; in like manner, were all powers
vested in the general government, it would be a consolidated
government; but the powers of the general government are enumerated;
it can only operate in certain cases; it has legislative powers on
defined and limited objects, beyond which it cannot extend its
jurisdiction.

With respect to the powers proposed to be conferred on the new
government, he conceived that the question was whether they were
necessary. If they were, Virginia was reduced to the dilemma of either
submitting to the inconvenience which the surrender of those powers
might occasion, or of losing the Union. He then proceeded to show the
necessity for the power of direct taxation; and in answer to the
apprehended danger arising from this power united with the
consolidated nature of the government,--thus giving it a tendency to
destroy all subordinate or separate authority of the States,--he
admitted that, if the general government were wholly independent of
the governments of the States, usurpation might be expected to the
fullest extent; but as it was not so independent, but derived its
authority partly from those governments, and partly from the
people,--the same source of power,--there was no danger that it would
destroy the State governments.

In this manner, extending to all the details of the Constitution, the
discussion proceeded for nearly a week, the opposition aiming to show
that at every point it exposed the liberties of the people to great
hazards; Henry sustaining nearly the whole burden of the argument on
that side, and fighting with great vigor against great odds.[431] At
length, finding himself sorely pressed, he took advantage of an
allusion made by his opponents to the debts due from the United States
to France, to introduce the name of Jefferson.

"I might," said he, "not from public authority, but from good
information, tell you that his opinion is that you reject this
government. His character and abilities are in the highest estimation;
he is well acquainted in every respect with this country; equally so
with the policy of the European nations. This illustrious citizen
advises you to reject this government till it be amended. His
sentiments coincide entirely with ours. His attachment to, and
services done for, this country are well known. At a great distance
from us, he remembers and studies our happiness. Living in splendor
and dissipation, he thinks yet of Bills of Rights,--thinks of those
little, despised things called _maxims_. Let us follow the sage
advice of this common friend of our happiness."[432]

At the time when Mr. Henry made this statement, he had seen a letter
written by Mr. Jefferson from Paris, in the preceding February, which
was much circulated among the opposition in Virginia, and in which Mr.
Jefferson had expressed the hope that the first nine conventions might
accept the Constitution, and the remaining four might refuse it, until
a Declaration of Rights had been annexed to it.[433] Mr. Henry chose
to construe this into an advice to _Virginia_ to reject the
Constitution. But this use of Mr. Jefferson's opinion was not strictly
justifiable, since Virginia, in the actual order of events, might be
the ninth State to act; for the convention of New Hampshire was not to
reassemble until nearly three weeks after the first meeting of that of
Virginia, in which Mr. Henry was then speaking. The friends of the
Constitution, therefore, became somewhat restive under this attempt to
employ the influence of Jefferson against them. Without saying
anything disrespectful of him, but, on the contrary, speaking of him
in the highest terms of praise and honor, they complained of the
impropriety of introducing his opinion,--saying that, if the opinions
of important men not within that convention were to govern its
deliberations, they could adduce a name at least equally great on
their side;[434] and they then contended that Mr. Jefferson's letter
did not admit of the application that had been given to it.[435] But
the truth was, that the assertions of his opponents respecting New
Hampshire, and the ambiguous form of Mr. Jefferson's opinion, gave
Henry all the opportunity he wanted to employ that opinion for the
purpose for which he introduced it. "You say," said he, "that you are
absolutely certain New Hampshire will adopt this government. Then she
will be the ninth State; and if Mr. Jefferson's advice is of any
value, and this system requires amendments, we, who are to be one of
the four remaining States, ought to reject it until amendments are
obtained."[436]

Notwithstanding the efforts of Madison to counteract this artifice, it
gave the opposition great strength, because it enabled them to throw
the whole weight of their arguments against the alleged defects and
dangers of the Constitution into the scale of an absolute rejection.
Mr. Jefferson's subsequent opinion, formed after he had received
intelligence of the course of Massachusetts, had not then been
received, and indeed did not reach this country until after the
convention of Virginia had acted.[437] The opposition went on,
therefore, with renewed vigor, to attack the Constitution in every
part which they considered vulnerable.

Among the topics on which they expended a great deal of force was
that of the navigation of the Mississippi. They employed this subject
for the purpose of influencing the votes of members who represented
the interests of that part of Virginia which is now Kentucky. They
first extorted from Madison, and other gentlemen, who had been in the
Congress of the Confederation, a statement of the negotiations which
had nearly resulted in a temporary surrender of the right in the
Mississippi to Spain.[438] They then made use of the following
argument. It had appeared, they said, from those transactions, that
the Northern and Middle States, seven in number,[439] were in favor of
bartering away this great interest for commercial privileges and
advantages; that those States, particularly the Eastern ones, would be
influenced further by a desire to suppress the growth of new States in
the Western country, and to prevent the emigration of their own people
thither, as a means of retaining the power of governing the Union; and
that the surrender of the Mississippi could be made by treaty, under
the Constitution, by the will of the President and the votes of ten
Senators,[440] whereas, under the Confederation, it never could be
done without the votes of nine States in Congress.

It must be allowed that there had been much in the history of this
matter on which harsh reflections could be made by both sections of
the Union. But it was not correct to represent the Eastern and Middle
States as animated by a desire to prevent the settlement of the
Western country, or to say that they would be ready at any time to
barter away the right in the Mississippi. Seven of the States had
consented, in a time of war and of great peril, to the proposal of a
temporary surrender of the right to Spain, just when it was supposed
that negotiations between Spain and Great Britain might result in a
coalition which would deprive us of the river for ever, and when it
was thought that a temporary cession would fix the permanent right in
our favor.[441] This was undoubtedly an error; but it was one from
which the country had been saved, by the disputes which arose
respecting the constitutional power of seven States to give
instructions for a treaty, and by the prospect of a reconstruction of
the general government.[442] Now, therefore, that an entirely new
constitutional system had been prepared, the real question, in
relation to this very important subject, was one of a twofold
character. It involved, first, the moral probabilities respecting the
wishes and policy of a majority of the States; and, secondly, a
comparison of the means afforded by the Constitution for protecting
the national right to the Mississippi, with those afforded by the
Confederation,--assuming that any State or States might wish to
surrender it.

Upon this question Mr. Madison made an answer to the opposition, which
shows how accurately he foresaw the relations between the western and
the eastern portions of the Union, and how justly he estimated the
future working of the Constitution with respect to the preservation of
the Mississippi, or any other national right.

If interest alone, he said, were to govern the Eastern States, they
must derive greater advantage from holding the Mississippi than even
the Southern States; for if the carrying trade were their natural
province, it must depend mainly on agriculture for its support, and
agriculture was to be the great employment of the Western country. But
in addition to this security of local interest, the Constitution would
make it necessary for two thirds of all the Senators present--and those
present would represent all the States, if all attended to their
duty--to concur in every treaty. The President, who would represent the
people at large, must also concur. In the House of Representatives, the
landed, rather than the commercial interest, would predominate; and the
House of Representatives, although not to be directly concerned in the
making of treaties, would have an important influence in the
government. A weak system had produced the project of surrendering the
Mississippi; a strong one would remove the inducement.[443]

In the midst of these discussions, and while the opposition were
making every effort to protract them until the 23d of June,--when the
assembling of the legislature would afford a colorable pretext for an
adjournment,--Colonel Oswald of Philadelphia arrived at Richmond, with
letters from the Anti-Federalists of New York and Pennsylvania to the
leaders of that party at Richmond, for the purpose of concerting a
plan for the postponement of the decision of Virginia until after the
meeting of the convention of New York. It was supposed that, if this
could be effected, the opponents of the Constitution in New York would
be able to make some overture to the opposition in Virginia, for the
same course of action in both States. If this could not be brought
about, it was considered by the opposition at Richmond that the
chances of obtaining a vote for previous amendments would be
materially increased by delay. The parties in their convention were
nearly balanced, at this time. Mr. Madison estimated the Federal
majority at not more than three or four votes, if indeed the
Federalists had a majority, on the 17th of June, the day on which the
convention of New York was to meet.[444]

But we must now leave the convention of Virginia, and turn our eyes to
the pleasant village on the banks of the Hudson, where the convention
of New York was already assembling. Hamilton was there, and was its
leading spirit. How vigilant and thoughtful he was, we know;--sometimes
watching for the messenger who might descend the eastern hills with
reports from New Hampshire,--sometimes turning to the South and
listening for the footfall of his couriers from Virginia;--but always
preparing to meet difficulties, always ready to contest every inch of
ground, and never losing sight of the great end to be accomplished. The
hours were slow and heavy to him. The lines of horse-expresses which he
had so carefully adjusted, and at whose intersection he stood to
collect the momentous intelligence they would bring him, were indeed a
marvel of enterprise at that day; but how unlike were they to the
metallic lines that now daily gather for us, from all the ends of the
land and with the speed of lightning, minute notices of the most
trivial or the most important events! Still, such as his apparatus was,
it was all that could be had; and he awaited, alike with a firm
patience and a faithful hope, for the decisive results. Even at this
distance of time, we share the fluctuations of his anxious spirit, and
our patriotism is quickened by our sympathy.

Rarely, indeed, if ever, was there a statesman having more at stake in
what he could not personally control, or greater cause for solicitude
concerning the public weal of his own times or that of future ages,
than Hamilton now had. His own prospects of usefulness, according to
the principles which had long guided him, and the happiness or the
misery of his country, were all, as he was deeply convinced, involved
in what might happen within any hour of those few eventful days. The
rejection of the Constitution by Virginia would, in all probability,
cause its rejection by New York. Its rejection by those States would,
as he sincerely believed, be followed by eventual disunion and civil
war. But if the Constitution could be established, he could see the
way open to the happiness and welfare of the whole Union; for although
it was not in all respects the system that he would have preferred, he
had shown, in the Federalist, how profoundly he understood its bearing
upon the interests of the country, into what harmony he could bring
its various provisions, and what powerful aid he could give in
adjusting it into its delicate relations to the States. He had, too,
already conceived the hope that its early administration might be
undertaken by Washington; and with the government in the hands of
Washington, Hamilton could foresee the success which to us is now
historical.

To say that Hamilton was ambitious, is to say that he was human; and
he was by no means free from human imperfections. But his was the
ambition of a great mind, regulated by principle, and made incapable,
by the force and nature of his convictions, of seeking personal
aggrandizement through any course of public policy of which those
convictions were not the mainspring and the life. In no degree is the
character of any other American statesman undervalued or disparaged,
when I insist on the importance to all America, through all time, of
Hamilton's public character and conduct in this respect. It was
because his future opportunities for personal distinction and
usefulness were now evidently at stake in the success of a system that
would admit of the exercise of his great powers in the service of the
country,--a system that would afford at once a field for their
exercise and for the application of his political principles,--and
because he could neither seek nor find distinction in a line of
politics which tended to disunion,--that his position at this time is
so interesting and important. As a citizen of New York, too, his
position was personally critical. He had carried on a vigorous contest
with the opponents of the Constitution in that State; he had
encountered obloquy and misrepresentation and rancor,--perhaps he had
provoked them. He had told the people of the State, for years, that
they had listened to wrong counsels, when they had lent themselves to
measures that retarded the growth of a national spirit and an
efficient general government. The correctness of his judgment was now,
therefore, openly and palpably in the issue. His public policy, with
reference to the relations of the State to the Union, was now to
stand, or to fall, with the Constitution proposed.

When he entered the convention of the State, he was convinced that the
Anti-Federalists were determined that New York should not become a
member of the new Union, whatever might be done by the other
States.[445] He had also received information, which led him to
believe that the Governor, Clinton, had in conversation declared the
Union unnecessary; but of this, if true, he could make no public use.
His suspicions were certainly justified by the tendency of the
arguments made use of by the opposition, during the few first days of
the session; for it was the tendency of those arguments to maintain
the idea that New York could very well stand alone, even if the
Constitution should be established by nine States, she refusing to be
one of them. With this view, they pressed the consideration under
which they had all along acted, that the Confederation, if amended,
would be sufficient for all the proper purposes of a general
government; and their plan for such an amendment of the Confederation
was, to provide that its requisitions for money should continue to be
made as they had been, and that Congress should have the new power of
compelling payment by force, when a State had refused to comply with a
requisition.

Hamilton answered this suggestion with great energy. It is
inseparable, he said, from the disposition of bodies which have a
constitutional power of resistance, to inquire into the merits of a
law. This had ever been the case with the federal requisitions. In
this examination, the States, unfurnished with the lights which
directed the deliberations of the general government, and incapable of
embracing the general interests of the Union, had almost uniformly
weighed the requisitions by their own local interests, and had only
executed them so far as answered their particular convenience or
advantage. But if we have national objects to pursue, we must have
national revenues. If requisitions are made and are not complied with,
what is to be done? To coerce the States would be one of the maddest
projects ever devised. No State would ever suffer itself to be used as
the instrument of coercing another. A federal standing army, then,
must enforce the requisitions, or the federal treasury would be left
without supplies and the government without support. There could be no
cure for this great evil, but to enable the national laws to operate
on individuals, like the laws of the States. To take the old
Confederation as the basis of a new system, and to trust the sword and
the purse to a single assembly organized upon principles so
defective,--giving it the full powers of taxation and the national
forces,--would be to establish a despotism. These considerations
showed clearly that a totally different government, with proper powers
and proper checks and balances, must be established.

The convention soon afterwards passed to an animated discussion on the
system of representation proposed in the Constitution, and while an
amendment relating to the Senate was pending, on the 24th of June,
Hamilton received intelligence from the East, that on the 21st the
convention of New Hampshire had ratified the Constitution. Up to this
moment, the opposition, while disclaiming earnestly all wish to bring
about a dissolution of the Union, or to prevent the establishment of
some firm and efficient government, had still continued, in every
form, to press a line of argument which tended to produce the
rejection of the Constitution proposed; and it was evident that their
opponents could throw upon them the responsibility of a dissolution of
the Union only by a deduction from the tendency of their reasoning.
But now that the Constitution had been adopted by the number of States
which its provisions required for its establishment, the Federalists
determined that the opposition should publicly meet the issue raised
by the new aspect of affairs, which was to determine whether the State
of New York should or should not place itself out of the pale of the
new confederacy,--whether it should or should not stand in a hostile
attitude towards the nine States which had thus signified their
determination to institute a new government. Accordingly, on the next
day, Chancellor Livingston formally announced in the convention the
intelligence that had been received from New Hampshire, which, he
said, had evidently changed the circumstances of the country and the
ground of the present debate. He declared that the Confederation was
now dissolved. Would they consider the situation of their country?
However some might contemplate disunion without pain, or flatter
themselves that some of the Southern States would form a league with
them, he could not look without horror at the dangers to which any
such confederacy would expose the State of New York.

This dilemma embarrassed, but did not subdue, the opposition. They
reiterated their denial of a purpose to produce a dissolution of the
Union, doubtless with entire sincerity; but they continued the
argument which was designed to show that the State ought not to adopt
a system dangerous to liberty, under a fear of the situation in which
it might be placed.

Here, then, the reader should pause for a moment, in order to form a
just appreciation of the course pursued by Hamilton, in this altered
aspect of affairs, when nothing remained to be done but to get the
State of New York, if possible, into the new Union. We have now the
means of knowing precisely how he estimated the chances of succeeding
in this effort. On the 27th, while the discussion was still going on,
he wrote to Madison as follows: "There are some slight symptoms of
relaxation in some of the leaders, which authorizes a gleam of hope,
if you do well; but certainly I think not otherwise."[446] At the same
time, we know that his latest news from Virginia was not
encouraging.[447]

How easy, then, perhaps natural, it would have been for him to have
abandoned this "gleam of hope,"--to have turned his back upon the
State and all its cabals,--to have left the Anti-Federalists to
determine the fate of New York, and to have transferred himself to
what was then the larger community, the great State of Pennsylvania,
or to any of the other States which had adopted the Constitution! He
must have been received anywhere with the consideration due to his
high reputation, his abilities, his public services, and his
acknowledged patriotism. He must have been regarded, in any State that
had accepted the new government, as a person whose assistance was
indispensable to its success; and so he would have been looked upon by
the main body of the people throughout the new confederacy. He had no
ties of office to bind him to the State of New York. He held one of
her seats in the Congress of the Confederation, but that was a body
which must soon cease to exist. His political opponents had an
undoubted majority in the State. The social ties which had bound him
to her soil could have been severed. He could have left her,
therefore, to the counsels of his adversaries, and could have sought
and found for himself a career of ambition in the new sphere that was
open to receive him. That career would have tempted men of an inferior
mould, and would have seen them yield to the temptation perhaps the
more readily, because the conflicts that would have been inevitable
between rival confederacies would have presented fresh fields for
exertion and personal energy, new excitements and new adventures. It
is, too, a mournfully interesting reflection, that if Hamilton had
then cut himself free from the entanglements of the local politics of
New York by a change of residence, he probably could never have been
drawn into that miserable quarrel with the wretch who in after years
planned his destruction, and who gained by it the execrable
distinction of having taken the most important life that has ever
fallen by the assassination of the duel, since its opportunities for
murder have been known among men.

But with whatever melancholy interest we may pursue such a suggestion
of what Hamilton might have done, it needs but to be made, in order to
show how far he stood above the reach of such a temptation. From his
first entrance, in boyhood, into public life, his patriotism had
comprehended nothing less than the whole of the United States.
Whatever may be thought of his policy, either before or after the
Constitution was established, no just man will deny its comprehensive
nationality. He now saw that no partial confederacy of the States
could be of any permanent value. He had no favorite theories involved
in the Constitution, no peculiar experiments that he wished to try. He
embraced it, because he believed in its capacity to unite the whole of
the States, to concentrate and harmonize their interests, and to
accomplish national objects of the utmost importance to their welfare.
It could, without doubt, be inaugurated and put into operation without
the concurrence of New York. But to leave that, or any other State
near the geographical centre of the Union, out of the confederacy,
would be to leave its sovereignty and rights exposed to perpetual
collision with the new government. No public or private purpose could
have induced Hamilton to abandon any effort that might prevent such a
result. He still labored, therefore, with those who were associated
with him, to procure an adoption of the Constitution by the State of
New York; and we must bear in mind the vast importance of her action,
and the difficulties with which he had to contend, that we may take a
just view of the concessions to the opposition which he seems at one
stage of the crisis to have been obliged to consider.

But we must now leave him in the midst of the embarrassments by which
he was surrounded, to follow his messenger, whom he instantly
despatched, on the 24th, with letters to Madison at Richmond,
announcing the news of the ratification by New Hampshire. The courier
passed through the city of New York on the 25th, and reached
Philadelphia on the 26th. The newspapers of the latter city
immediately cried out, "The reign of anarchy is over," and the popular
enthusiasm rose to the highest point. The courier passed on to the
South; but the convention of Virginia had, in fact, ratified the
Constitution before he arrived in Philadelphia. Thus, while New
Hampshire, in the actual order of events, was the ninth State to adopt
the Constitution, yet Virginia herself, so far as the members of her
convention were informed, appeared at the time of their voting to be
the ninth adopting State. It is certain that they acted without any
real knowledge of what had taken place in New Hampshire, although
there may have been random assertions of what nobody at Richmond could
then have known.[448]

The result was brought about in Virginia by the force of argument, and
because the friends of the Constitution were at last able to reduce
the issue to the single question of previous or subsequent, that is,
of conditional or recommendatory, amendments. As the State appeared
likely to be the ninth State to act, and they could insist that, if
she rejected the Constitution, she must bear the responsibility of
defeating the establishment of the new government,--a consequence
which they could reasonably predict,--they had a high vantage-ground
from which to address the reason and patriotism of the assembly.

Henry and the other leaders of the opposition fought valiantly to the
last. When the whole subject had been exhausted, the friends of the
Constitution presented the propositions on which they were willing to
rest the action of the State, and which declared, in substance, that
the powers granted under the proposed Constitution are the gift of the
people, and that every power not granted thereby remains with them,
and at their will,--consequently that no right can be abridged,
restrained, or modified by the general government or any of its
departments, except in those instances in which power is given by the
Constitution for those purposes; and that, among other essential
rights, liberty of conscience and of the press cannot be cancelled,
abridged, restrained, or modified, by any authority of the United
States; that the Constitution ought, therefore, to be ratified, but
that whatsoever amendments might be deemed necessary ought to be
recommended to the consideration of the first Congress that should
assemble under the Constitution, to be acted upon according to the
mode prescribed therein.

Mr. Henry, on the other hand, brought forward a counter project, by
which he proposed to declare that, previous to the ratification of the
Constitution, a Declaration of Rights, asserting and securing from
encroachment the great principles of civil and religious liberty, and
the inalienable rights of the people, together with amendments to the
most exceptionable parts of the Constitution, ought to be referred by
the convention of Virginia to the other States in the American
confederacy for their consideration.

The issue was thus distinctly made between previous or conditional and
subsequent or unconditional amendments, and made in a form most
favorable to the friends of the Constitution; for it enabled them to
present so vigorously and vividly the consequences of suspending the
inauguration of the new government until the other States could
consider the amendments desired by Virginia, that they procured a
rejection of Mr. Henry's resolution by a majority of eight, and a
ratification of the Constitution by a majority of ten votes. A long
list of amendments, together with a Bill of Rights, was then adopted,
to be presented to Congress for its consideration.[449]

The conduct of Mr. Henry, when he saw that the adoption of the
Constitution was inevitable, was all that might have been expected
from his patriotic and unselfish character. "If I shall be in the
minority," he said, "I shall have those painful sensations which arise
from a conviction of being overpowered in a good cause. Yet I will be
a peaceable citizen. My head, my hand, and my heart shall be free to
retrieve the loss of liberty, and remove the defects of this system in
a constitutional way. I wish not to go to violence, but will wait with
hopes that the spirit which predominated in the Revolution is not yet
gone, nor the cause of those who are attached to the Revolution yet
lost. I shall, therefore, patiently wait in expectation of seeing this
government so changed as to be compatible with the safety, liberty,
and happiness of the people."[450] This noble and disinterested
patriot lived to find the Constitution all that he wished it to be,
and to enroll himself, in the day of its first serious trial, among
its most vigorous and earnest defenders.

But some of the members of the opposition were not so discreet.
Immediately after the adjournment of the convention, they prepared an
address to the people, intended to produce an effort to prevent the
inauguration of the new government by a combined arrangement among the
legislatures of the several States. But this paper, which never saw
the light, was rejected by their own party, and the opposition in
Virginia subsided into a general acquiescence in the action of the
convention.[451]

The ratification of Virginia took place on the 25th of June; the news
of this event was received and published in Philadelphia on the 2d of
July. The press of the city was at once filled with rejoicings over
the action of Virginia. She was the tenth pillar of the temple of
liberty. She was Virginia,--eldest and foremost of the States,--land
of statesmen whose Revolutionary services were as household words in
all America,--birthplace and home of Washington! We need not wonder,
when she had come so tardily, so cautiously, into the support of the
Constitution, that men should have hailed her accession with
enthusiasm. The people of Philadelphia had been for some time
preparing a public demonstration, in honor of the adoption of the
Constitution by nine States. Now that Virginia was added to the
number, they determined that all possible magnificence and splendor
should be given to this celebration, and they chose for it the
anniversary day of the National Independence.

A taste for allegory appears to have been quite prevalent among the
people of the United States at this period. Accordingly, the
Philadelphia procession of July 4, 1788, was filled with elaborate and
emblematic representations. It was a long pageant of banners, of
trades, and devices. A decorated car bore the Constitution framed as a
banner and hung upon a staff. Then another decorated car carried the
American flag and the flags of all friendly nations. Then followed the
judges in their robes, and all the public bodies, preceding a grand
federal edifice, which was carried on a carriage drawn by ten horses.
On the floor of this edifice were seated, in chairs, ten gentlemen,
representing the citizens of the United States at large, to whom the
Federal Constitution had been committed before its ratification. When
it arrived at "Union Green," they gave up their seats to ten others
representing the ten States which had ratified the instrument. The
federal ship, "The Union," came next, followed by all the trades,
plying their various crafts upon elevated platforms, with their
several emblems and mottoes, strongly expressing confidence in the
protection that would be afforded under the Constitution to all the
forms of American manufactures and mechanic arts. Ten vessels paraded
on the Delaware, each with a broad white flag at its masthead, bearing
the name of one of the ten States in gold letters; and, as if to
combine the ideas both of the absence and the presence of the ten
States, ten carrier-pigeons were let off from the printers' platform,
each with a small package bearing "the ode of the day" to one of the
ten rejoicing and sympathizing States.

Thus did ingenuity and mechanical skill exert themselves in quaint
devices and exhibitions, to portray, to personify, and to celebrate
the vast social consequences of an event which had then no parallel in
the history of any other country,--the free and voluntary adoption by
the people of a written constitution of government framed by the
agents and representatives of the people themselves. The carrier birds
are not known to have literally performed their tasks, but as rapidly
as horse and man could carry it, the news from Virginia pressed on to
the North, and reached Hamilton at Poughkeepsie on the 8th of July.

It found him still surrounded by the same difficulties that existed
when he received the result of the convention of New Hampshire. The
opposition had relaxed none of their efforts to prevent the adoption
of the Constitution; they had only become somewhat divided respecting
the method to be pursued for its defeat. Some of them were in favor of
conditions precedent, or previous amendments; some, of conditions
subsequent, or the proposal of amendments upon the condition that, if
they should not be adopted within a certain time, the State should be
at liberty to withdraw from the Union; and all of them were
determined, in case the Constitution should be ratified, to carry
constructive declarations of its meaning and powers as far as
possible. Hamilton was conscious that the chief danger to which the
Constitution itself was now exposed, was that a general concurrence in
injudicious recommendations might seriously wound its power of
taxation, by causing a recurrence, in some shape, to the system of
requisitions. The danger to which the State of New York was exposed,
was that it might not become a member of the new Union, in any form.

The leading Federalists who were united with Hamilton in the effort to
prevent such a disastrous issue of this convention were John Jay, the
Chancellor Robert R. Livingston, and James Duane. A few days after the
intelligence from New Hampshire was received, these gentlemen held a
consultation as to the most effectual method of encountering the
objections made to the general power of taxation that would be
conferred by the Constitution upon the general government. The
legislative history of the State, from 1780 to 1782, embraced a series
of official acts and documents, showing that the State had been
compelled to sustain a very large share of the burden of the
Revolutionary war; that requisitions had been unable to call forth the
resources of the country; and that, in the judgment of the State,
officially and solemnly declared in 1782, and concurred in by those
who now resisted the establishment of the Constitution, it was
necessary that the Union should possess other sources of revenue. The
Federalists now resolved that these documents be formally laid before
the convention, and Hamilton undertook to bring them forward.

On the 27th of June, he commenced the most elaborate and important of
the speeches which he made in this assembly, for the purpose of
showing that in the construction of a government the great objects to
be attained are a free and pure representation, and a proper balance
between the different branches of administration; and that when these
are obtained, all the powers necessary to answer, in the most ample
manner, the purposes of government, may be bestowed with entire
safety. He proceeded to argue, not only that a general power of
taxation was essential, but that, under a system so complex as that of
the Constitution,--so skilfully endowed with the requisite forms of
representation and division of executive and legislative power,--it
was next to impossible that this authority should be abused. In the
course of this speech, and for the purpose of showing that the State
had suffered great distresses during the war from the mode of raising
revenues by requisitions, he called for the reading at the clerk's
table of a series of documents exhibiting this fact. Governor Clinton
resisted their introduction, but they were read; and Hamilton and his
friends then contended, that they proved beyond dispute that the State
had once been in great peril for want of an energetic general
government.

This movement produced a warm altercation between the leading
gentlemen on the opposite sides of the house. But while it threw a
grave responsibility upon the opposition, it did not conquer them; and
by the day on which the intelligence from Virginia arrived, they had
heaped amendments upon the table on almost every clause and feature of
the Constitution, some one or more of which it was highly probable
they would succeed in making a condition of its acceptance.

This critical situation of affairs led Hamilton to consider, for a
short time, whether it might not be necessary to accede to a plan, by
which the State should reserve the right to recede from the Union, in
case its amendments should not have been decided upon, in one of the
modes pointed out by the Constitution, within five or six years. He
saw the objections to this course; and he was determined to leave no
effort untried to bring the opposition to an unqualified ratification.
But the danger of a rejection of the Constitution was extreme; and as
a choice of evils, he thought that, if the State could in the first
instance be received into the Union under such a reserved right to
withdraw, succeeding events, by the adoption of all proper and
necessary amendments, would make the reservation unimportant, because
such amendments would satisfy the more reasonable part of the
opposition, and would thus break up their party. But he determined not
to incur the hazard of this step upon his own judgment alone, or that
of any one else having a personal interest in the question; and
accordingly, on the 12th of July, he despatched a letter to Madison,
who was then attending in Congress at the city of New York, asking
his opinion upon the possibility of receiving the State into the Union
in this form.[452]

Madison instantly replied, that, in his opinion, this would be a
conditional ratification, and would not make the State of New York a
member of the new Union; that the Constitution required an adoption
_in toto_ and for ever; and that any condition must vitiate the
ratification of any State.[453]

Before this reply could have been received at Poughkeepsie, the
Federalists had introduced their proposition for an unconditional
ratification, and this was followed by that of the Anti-Federalists
for a conditional one. The former was rejected by the convention on
the 16th of July. The opposition then brought forward a new form of
conditional ratification, with a Bill of Rights prefixed, and with
amendments subjoined. After a long debate, the Federalists succeeded,
on the 23d of July, in procuring a vote to change this proposition, so
that, in place of the words "on condition," the people of the State
would be made to declare that they assented to and ratified the
Constitution "in full confidence" that, until a general convention
should be called for proposing amendments, Congress would not exercise
certain powers which the Constitution conferred upon them. This
alteration was carried by thirty-one votes against twenty-seven. A
list of amendments was then agreed upon, and a circular letter was
adopted, to be sent to all the States, recommending a general
convention; and on Saturday, the 26th of July, the ratification, as
thus framed, with the Bill of Rights and the amendments, was carried
by thirty affirmative against twenty-seven negative votes.[454]

By this slender majority of her delegates, and under circumstances of
extreme peril of an opposite decision, did the State of New York
accept the Constitution of the United States, and become a member of
the new government. The facts of the case, and the importance of her
being brought into the new Union, afford a sufficient vindication of
the course pursued by the Federalists in her convention. But it is
necessary, before closing the history of these events, to consider a
complaint that was made at the time, by some of the most zealous of
their political associates in other quarters, and which touched the
correctness of their motives in assenting to the circular letter
demanding a general convention for the amendment of the Constitution.

That there was danger lest another general convention might result in
serious injury to the Constitution, perhaps in its overthrow, was a
point on which there was probably no difference of opinion among the
Federalists of that day. Washington regarded it in this light; and
there is no reason to doubt that Hamilton and Jay, and many others of
the friends of the Constitution, would have felt great anxiety about
its result. But there were some members of the Federal party, in
several of the States, who do not seem to have fully appreciated the
importance of conceding to the opposition, at the time of the adoption
of the Constitution, the use of any and every form of obtaining
amendments which the Constitution itself recognized. This was true
everywhere, where serious dissatisfaction existed, and it was
especially true in the State of New York. It was impossible to procure
a ratification in that State, without an equivalent concession; and if
the Federal leaders in that convention assented to the proposal of a
course of amending the Constitution for which the instrument itself
provided, however ineligible it might be, their justification is to be
found in the circumstances of their situation. Washington himself,
when all was over, wrote to Mr. Jay as follows:--"Although I could
scarcely conceive it possible, after ten States had adopted the
Constitution, that New York, separated as it is from the others, and
peculiarly divided in sentiments as it is, would withdraw from the
Union, yet, considering the great majority which appeared to cling
together in the convention, and the decided temper of the leaders, I
did not, I confess, see how it was to be avoided. The exertion of
those who were able to effect this great work must have been equally
arduous and meritorious."[455]

But others were not so just. The Federalists of the New York
convention were complained of by some of their friends for having
assented to the circular letter, for the purpose of procuring a
ratification at any price, in order to secure the establishment of the
new government at the city of New York. It was said that the State had
better have remained out of the Union, than to have taken a course
which would prove more injurious than her rejection would have
done.[456]

With respect to these complaints and the accompanying charge, it is
only necessary to say, in the first place, that Hamilton and Jay and
their associates believed that there was far less danger to be
apprehended from a mere call for a second general convention, than
from a rejection of the Constitution by the State of New York; and
they had to choose between these alternatives. The result shows that
they chose rightly; for the assembling of a general convention was
superseded by the action of Congress upon the amendments proposed by
the States. In the second place, the alleged motive did not exist. We
now know that Hamilton certainly, and we may presume his friends also,
did not expect or desire the new government to be more than
temporarily placed at the city of New York. He himself saw the
impolicy of establishing it permanently either at that place or at
Philadelphia. He regarded its temporary establishment at the city of
New York as the certain means of carrying it farther south, and of
securing its final and permanent place somewhere upon the banks of the
Delaware within the limits of New Jersey, or upon the banks of the
Potomac within the limits of Virginia.[457]

The people of the city of New York had waited long for the decision of
their State convention. They had postponed several times their
intended celebration in honor of the Constitution, which, as it was to
be the last, they determined should be the most imposing of these
ceremonies. When the day at length came, on the 5th of August, 1788,
it saw a population whose mutual confidence and joy had absorbed every
narrow and bigoted distinction in that noblest of all the passions
that a people can exhibit,--love of country. It were a vain and
invidious task to attempt to determine, from the contemporary
descriptions, whether this display exceeded that of all the other
cities in variety and extent. But there was one feature of it so
striking, so creditable to the people of the city of New York, that it
should not be passed over. It consisted in the honors they paid to
Hamilton.

He must have experienced on that day the best reward that a statesman
can ever find; for there is no purer, no higher pleasure for a
conscientious statesman, than to know, by demonstrations of public
gratitude, that the humblest of the people for whose welfare he has
labored appreciate and are thankful for his services. Public life is
often represented, and often found, to be a thankless sphere, for men
of the greatest capacity and the highest patriotism; and the
accidents, the defeats, the changes, the party passions and
obstructions of the political world, in a free government, frequently
make it so. But mankind are neither deliberately heartless nor
systematically unthankful; and it has sometimes happened, in popular
governments, that statesmen of the first order of mind and character
have, while living, received the most unequivocal proofs of feeling
directly from the popular heart, while the sum total of their lives
appears in history to be wanting in evidences of that personal success
which is attained in a constant triumph over opponents. Such an
expression of popular gratitude and sympathy it was now the fortune of
Hamilton to receive.

The people of the city did not stop to consider, on this occasion,
whether he was entitled, in comparison with all the other public men
in the United States, to be regarded as the chief author of the
blessings which they now anticipated from the Constitution. And why
should they? He was their fellow-citizen,--their own. They remembered
the day when they saw him, a mere boy, training his artillerymen in
their public park, for the coming battles of the Revolution. They
remembered the youthful eloquence and the more than youthful power
with which he encountered the pestilent and slavish doctrines of their
Tories. They thought of his career in the army, when the extraordinary
maturity, depth, and vigor of his genius, and his great
accomplishments, supplied to Washington, in some of the most trying
periods of his vast and prolonged responsibility, the assistance that
Washington most needed. They recollected his career in Congress, when
his comprehensive intellect was always alert, to bear the country
forward to measures and ideas that would concentrate its powers and
resources in some national system. They called to mind how he had kept
their own State from wandering quite away into the paths of
disunion,--how he had enlightened, invigorated, and purified public
opinion by his wise and energetic counsels,--how he had led them to
understand the true happiness and glory of their country,--how he had
labored to bring about those events which had now produced the
Constitution,--how he had shown to them the harmony and success that
might be predicted of its operation, and had taught them to accept
what was good, without petulantly demanding what individual opinion
might claim as perfect.

What was it to them, therefore, on this day of public rejoicing, that
there might be in his policy more of consolidation than in the policy
of others,--that he was said to have in his politics too much that was
national and too little that was local,--that some had done as much as
he in the actual construction of the system which they were now to
celebrate? Such controversies might be for history, or for the
contests of administration that were soon to arise. On this day, they
were driven out of men's thoughts by the glow of that public
enthusiasm which banishes the spirit of party, and touches and opens
the inmost fountains of patriotism. Hamilton had rendered a series of
great services to his country, which had culminated in the adoption of
the Constitution by the State of New York; and they were now
acknowledged from the very hearts of those who best knew his motives
and best understood his character.

The people themselves, divided into their respective trades, evidently
undertook the demonstrations in his honor, and gave them an emphasis
which they could have derived from no other source. They bore his
image aloft upon banners. They placed the Constitution in his right
hand, and the Confederation in his left. They depicted Fame, with her
trumpet, crowning him with laurels. They emblazoned his name upon the
miniature frigate, the federal ship of state. They anticipated the
administration of the first President, by uniting on the national flag
the figure of Washington and the figure of Hamilton.[458] All that
ingenuity, all that affection, that popular pride and gratitude could
do, to honor a public benefactor, was repeated again and again through
the long line of five thousand citizens, of all orders and conditions,
which stretched away from the shores of that beautiful bay, where
ocean ascends into river and river is lost in ocean,--where Commerce
then wore her holiday attire, to prefigure the magnificence and power
which she was to derive from the Constitution of the United States.

FOOTNOTES:

[429] Notice of Henry, in the National Portrait Gallery of
Distinguished Americans, Vol. II. Mr. Jefferson has said that Henry's
power as a popular orator was greater than that of any man he had ever
heard, and that Henry "appeared to speak as Homer wrote." (Jefferson's
Works, I. 4.)

[430] It is said in the newspapers of that period that Henry was on
his legs in one speech for seven hours. I think it must have been the
one from which I have made the abstract in the text. But he made a
great many speeches, quite as earnest.

[431] There has been, I am aware, a modern scepticism concerning
Patrick Henry's abilities; but I cannot share it. He was not a man of
much information, and he had no great breadth of mind. But he must
have been, not only a very able debater, but a good parliamentary
tactician. The manner in which he carried on the opposition to the
Constitution in the convention of Virginia, for nearly a whole month,
shows that he possessed other powers besides those of great natural
eloquence.

[432] Elliot, III. 152, Debates in the Virginia Convention.

[433] Under date of February 7, 1788, Mr. Jefferson wrote from Paris,
in a private letter to a gentleman in Virginia, as follows:--"I wish,
with all my soul, that the nine first conventions may accept the new
Constitution, because this will secure to us the good it contains,
which I think great and important. But I equally wish that the four
latest conventions, whichever they be, may refuse to accede to it till
a Declaration of Rights be annexed. This would probably command the
offer of such a Declaration, and thus give to the whole fabric,
perhaps, as much perfection as any one of that kind ever had. By a
Declaration of Rights, I mean one which shall stipulate freedom of
religion, freedom of the press, freedom of commerce against
monopolies, trial by juries in all cases, no suspensions of the
_habeas corpus_, no standing armies. These are fetters against doing
evil, which no honest government should decline. There is another
strong feature in the new Constitution which I as strongly dislike.
That is, the perpetual re-eligibility of the President. Of this, I
expect no amendment at present, because I do not see that anybody has
objected to it on your side the water. But it will be productive of
cruel distress to our country, even in your day and mine. The
importance to France and England to have our government in the hands
of a friend or foe, will occasion their interference by money, and
even by arms. Our President will be of much more consequence to them
than a king of Poland. We must take care, however, that neither this
nor any other objection to the new form produces a schism in our
Union. That would be an incurable evil, because near friends falling
out never reunite cordially; whereas, all of us going together, we
shall be sure to cure the evils of our new Constitution before they do
great harm." (Jefferson's Works, II. 355.) That Mr. Jefferson intended
this letter should be used as it was in the convention of Virginia, is
not probable; but it would seem from the care he took to state a plan
of proceeding in the adoption of the Constitution, that he intended
his suggestions should be known. His subsequent opinion will be found
in a note below.

[434] Alluding, evidently, to Washington.

[435] See the speeches of Pendleton and Madison, in reply to Henry.
Elliot, III. 304, 329.

[436] Elliot, III. 314.

[437] On the 27th of May, 1788, Mr. Jefferson wrote from Paris to
Colonel Carrington, as follows:--"I learn with great pleasure the
progress of the new Constitution. Indeed, I have presumed it would
gain on the public mind, as I confess it has on my own. At first,
though I saw that the great mass and groundwork was good, I disliked
many appendages. Reflection and discussion have cleared off most of
those. You have satisfied me as to the query I had put to you about
the right of direct taxation. My first wish was that nine States would
adopt it, and that the others might, by holding off, produce the
necessary amendments. But the plan of Massachusetts is far preferable,
and will, I hope, be followed by those who are yet to decide," &c.
(Jefferson's Works, II. 404.) Colonel Carrington, the person to whom
this letter was addressed, was a member of Congress, and received it
at New York, about the 2d of July, when it was seen by Madison. (See a
letter from Madison to E. Randolph of that date, among the Madison
papers. Elliot, V. 573.)

[438] See an account of this matter, _ante_, Vol. I. Book III. Chap.
V. pp. 309-327.

[439] They meant the four New England States and New York,
Pennsylvania, and Maryland. New Jersey and Delaware were supposed to
be with the four Southern States on this question.

[440] Ten would be two thirds of the constitutional quorum of
fourteen; so that the argument supposed only a quorum to be present.

[441] See Mr. Madison's explanation in the convention of Virginia.
Elliot, III. 346.

[442] _Ante_, Book III. Chap. V., Vol. I. pp. 324-327.

[443] Debates in the Virginia Convention, Elliot, III. 344-347.

[444] He thought at this moment that if the Constitution should be
lost, the Mississippi question would be the cause. The members from
Kentucky were then generally hostile. (See a letter from Madison to
Hamilton, of June 16th, Hamilton's Works, I. 457.)

[445] See his correspondence with Madison, Works, I. pp. 450-469.

[446] Works, I. 462.

[447] See the latest letter which he had then received from Madison.
Ibid. 461.

[448] It has been supposed that this was not so, but that Hamilton's
messenger arrived at Richmond before the final action of the Virginia
convention, and so that the decision of New Hampshire had an important
influence. I think this is clearly a mistake. I have traced the
progress of the messenger in the newspapers of that time, and find his
arrival at New York and Philadelphia chronicled as it is given in the
text. The dates are therefore decisive. It appears also from Mr.
Madison's correspondence with Hamilton, that he did not receive the
despatch about New Hampshire until the 31st. (Hamilton's Works, I.
463.) The ratification passed the Virginia convention on the 25th, and
that body was dissolved on the 27th. There is no trace in the Virginia
debates of any authentic news from New Hampshire. On the contrary, it
was assumed by one of the speakers, Mr. Innes, on the day of their
ratification, that the Constitution then stood adopted by _eight_
States. (Elliot, III. 636.)

[449] The form of ratification embraced the recitals given in the text
respecting the powers of Congress. It was adopted by a vote of 89 to
79, on the 25th of June, 1788. I do not go into the particular
consideration of the amendments proposed by several of the State
conventions, because the present work is confined to the origin, the
formation, and the adoption of the Constitution, and no State that
ratified the instrument proposed by the national Convention made
amendments a condition. The examination of the amendments proposed,
therefore, belongs to the history of the Constitution subsequent to
its inauguration. They may all be found in the Appendix to the
thirteenth volume of the Journals of the Old Congress.

[450] Debates in Virginia Convention, Elliot, III. 652.

[451] Madison's letters to Hamilton, Works of Hamilton, I. 462, 463.

[452] Letter to Madison, Works of Hamilton, I. 464.

[453] Ibid. 465.

[454] It was reported in the newspapers of that period that the
Constitution was adopted in this convention by 30 yeas against 25
nays. But the official record gives the several votes as they are
stated in the text; from which it appears that, on the critical
question of a conditional or unconditional ratification, the majority
was only 2. In truth, the ratification of New York barely escapes the
objection of being a qualified one, if it does in fact escape it.

[455] Works of Washington, IX. 408.

[456] Madison's letter to Washington, August 24, 1788, Works of
Washington, IX. 549.

[457] See his letter to Governor Livingston of New Jersey, August 29,
1788, Works, I. 471.

[458] Some of the most elaborate of these devices were borne by the
"Block and Pump Makers" and the "Tallow-Chandlers."



CHAPTER IV.

ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION.


Thus had eleven States, at the end of July, 1788, unconditionally
adopted the Constitution; five of them proposing amendments for the
consideration of the first Congress that would assemble under it, and
one of the five calling for a second general convention to act upon
the amendments desired. Two other States, however, North Carolina and
Rhode Island, still remained aloof.

The legislature of North Carolina, in December, 1787, had ordered a
State convention, which assembled July 21, 1788, five days before the
convention of New York ratified the Constitution. In this body the
Anti-Federalists obtained a large majority. They permitted the whole
subject to be debated until the 2d of August; still it had been
manifest from the first that they would not allow of an unconditional
ratification. They knew what had been the result in New Hampshire and
Virginia; but the decision of New York had, of course, not reached
them. Their determination was not, however, to be affected by the
certainty that the new government would be organized. Their purpose
was not to enter the new Union, until the amendments which they
desired had been obtained. They assumed that the Congress of the
Confederation would not provide for the organization of the new
government until another general convention had been held; or, if they
did, that such a convention would be called by the new Congress;--and
it appeared to them to be the most effectual mode of bringing about
one or the other of these courses, to remain for the present in an
independent position. The inconvenience and hazard attending such a
position do not seem to have had much weight with them, when compared
with what they regarded as the danger of an unconditional assent to
the Constitution as it then stood.

The Federalists contended strenuously for the course pursued by the
other States which had proposed amendments, but they were overpowered
by great numbers, and the convention was dissolved, after adopting a
resolution declaring that a Bill of Rights, and certain amendments,
ought to be laid before Congress and the convention that might be
called for amending the Constitution, previous to its ratification by
the State of North Carolina.[459] But in order, if possible, to place
the State in a position to accede to the Constitution at some future
time, and to participate fully in its benefits, they also declared,
that, having thought proper neither to ratify nor to reject it, and as
the new Congress would probably lay an impost on goods imported into
the States which had adopted it, they recommended the legislature of
North Carolina to lay a similar impost on goods imported into the
State, and to appropriate the money arising from it to the use of
Congress.[460]

The elements which formed the opposition to the Constitution in other
States received in Rhode Island an intense development and
aggravation, from the peculiar spirit of the people, and from certain
local causes, the history of which has never been fully written, and
is now only to be gathered from scattered sources. Constitutional
government was exposed to great perils, in that day, throughout the
country, in consequence of the false notions of State sovereignty and
of public liberty which prevailed everywhere. But it seemed as if all
these causes of opposition and distrust had centred in Rhode Island,
and had there found a theatre on which to exhibit themselves in their
worst form. Fortunately, this theatre was so small and peculiar, as to
make the display of these ideas extremely conspicuous.

The Colony of Rhode Island was established upon the broadest
principles of religious and civil freedom. Its early founders and
rulers, flying from religious persecution in the other New England
Colonies, had transmitted to their descendants a natural jealousy of
other communities, and a high spirit of individual and public
independence. In the progress of time, as not infrequently happens in
such communities, the principles on which the State was founded were
falsely interpreted and applied, until, in the minds of a large part
of the people, they had come to mean a simple aversion to all but the
most democratic form of government. No successful appeal to this
hereditary feeling could be made during the early part of the
Revolution, against the interests and influence of the confederacy,
because the early and local effect of the Revolution in fact coincided
with it. But when the Revolution was fairly accomplished, and the
State had assumed its position of absolute sovereignty, what may be
called the extreme _individualism_ of the people, and their old
unfortunate relations with the rest of New England, made them
singularly reluctant to part with any power to the confederated
States. The manifestations of this feeling we have seen all along,
from the first establishment of the Confederation down to the period
at which we are now arrived.

The local causes which gave to this tendency its utmost activity, at
the time of the formation of the Constitution of the United States,
were the following.

First, there had existed in the State, for a considerable period, a
despotic and well-organized party, known as the paper-money party.
This faction had long controlled the legislation of the State, by
furnishing the agricultural classes, in the shape of paper money, with
the only circulating medium they had ever had in any large quantity;
and they were determined to extinguish the debt of the State by this
species of currency, which the legislature could, and did, depreciate
at pleasure.

Secondly, there existed, to a great and ludicrous extent, a constant
antagonism between town and country,--between the agricultural and the
mercantile or trading classes; and this hostility was especially
violent and active between the people of the towns of Providence and
Newport and the people of the surrounding and the more remote rural
districts.[461] The paper-money question divided the inhabitants of
the State in the same way. The loss of this circulation would deprive
the agricultural classes of their sole currency. They kept their
paper-money party, therefore, in a state of constant activity; and
when the Constitution of the United States appeared, this was an
organized and triumphant party, ready for any new contest. Finally,
there prevailed among the country party a notion that the maritime
advantages of the State ought in some way to be made use of, for
obtaining better terms with the general government than could be had
under the Constitution, and that by some such means funds could be
obtained for paying their most urgent debts.

If we may judge of the spirit and the acts of the majority of the
people of Rhode Island, at this time, by the manner in which they were
looked upon throughout the rest of the Union, no language of censure
can be too strong to be applied to them. They were regarded and spoken
of everywhere, among the Federalists, with contempt and abhorrence.
Even the opposition in other States, in all their arguments against
the Constitution, never ventured to defend the people of Rhode Island.
Ridicule and scorn were heaped upon them from all quarters of the
country, and ardent zealots of the Federal press urged the adoption of
the advice which they said the Grand Seignior had given to the king of
Spain, with respect to the refractory States of Holland, namely, to
send his men with shovels and pickaxes, and throw them all into the
sea. Such an undertaking, we may suppose, might have proved as
difficult on this, as it would have been on the other side of the
Atlantic. But however this might have been, it is probable that the
natural effect of their conduct on the minds of men in other States,
and the treatment they received, reacted upon the people of Rhode
Island, and made them still more tenacious and persistent in their
wrongful course.

But we need not go out of the State itself, to find proof that a
majority of its people were at this time violent, arbitrary, and
unenlightened, both as to their true interests and as to the
principles of public honesty. Determined to adhere to their
paper-money system, they did not pause to consider and to discuss the
great questions respecting the Constitution,--its bearing upon the
welfare of the States,--its effect upon public liberty and social
order,--the necessity for its amendment in certain particulars,--which
led, in the conventions of the other States, to some of the most
important debates that the subjects of government and free
institutions have ever produced. Indeed, they resolved to stifle all
such discussions at once; or, at any rate, to prevent them from being
had in an assembly whose proceedings would be known to the world. When
the General Assembly received the Constitution, at their session in
October, 1787, they directed it to be published and circulated among
the inhabitants of the State. In February, 1788, instead of calling a
convention, they referred the adoption of the Constitution to the
freemen in their several town meetings, for the purpose of having it
rejected. There were at this time a little more than four thousand
legal voters in the State. The Federalists, a small minority,
indignant at the course of the legislature, generally withdrew from
the meetings and refused to vote. The result was, that the people of
the State appeared to be nearly unanimous in rejecting the
Constitution.[462]

The freemen of the towns of Providence and Newport, thereupon
presented petitions to the General Assembly, complaining of the
inconvenience of acting upon the proposed Constitution in meetings in
which the people of the seaport towns and the people of the country
could not hear and answer each other's arguments, or agree upon the
amendments that it might be desirable to propose, and praying for a
State convention. Their application was refused, and Rhode Island
remained in this position, at the time when the question of organizing
the new government came before the Congress of the Confederation, in
July, 1788.

Better counsels prevailed with her people, at a later period, and the
same redeeming virtue and good sense were at length triumphant, which,
in still more recent trials, have enabled her to overcome error, and
party passion, and the false notions of liberty that have sometimes
prevailed within her borders. As the stranger now traverses her little
territory, in the journey of a day, and beholds her ample enjoyment of
all civil and religious blessings,--her busy towns, her fruitful
fields, her fair seat of learning, crowning her thriving capital, her
free, happy, and prosperous people, her noble waters where she sits
enthroned upon her lovely isles,--and remembers her ancient and her
recent history, he cannot fail, in his prayer for her welfare, to
breathe the hope that an escape from great social perils may be found
for her and for all of us, in the future, as it has been in the past.

But the attitudes taken by North Carolina and Rhode Island--although
in truth quite different and taken from very different motives--placed
the Union in a new crisis, involving the Constitution in great danger
of being defeated, notwithstanding its adoption by more than nine
States. Both of them were members of the existing confederacy; both
had a right to vote on all questions coming before the Congress of
that confederacy; and it was to this body that the national
Convention itself had looked for the initiatory measures necessary to
organize the new government under the Constitution. The question
whether that government should be organized at all, was necessarily
involved with the question as to the place where it should be directed
to assemble and to exercise its functions. This latter topic had often
been a source of dissension between the States; and there was much
danger lest the votes of North Carolina and Rhode Island, in the
Congress of the Confederation, by being united with the votes of
States opposed to the selection of the place that might be named as
the seat of the new government, might prevent the Constitution from
being established at all.

       *       *       *       *       *

But now, the pen that has thus traced these great events, and has
sought to describe them in their true relations to the social welfare
of the American people, must seek repose. How the Constitution was
inaugurated,--by whom and upon what principles it was put into
operation,--how and why it was amended or altered,--when and under
what circumstances the two remaining States accepted its
benefits,--what development and what direction it received from the
generation of statesmen who made and established it,--belongs to the
next epoch in our political history, the Administration of
Washington.

FOOTNOTES:

[459] This resolution was adopted August 2, 1788, by 184 yeas to 84
nays. North Carolina Debates, Elliot, IV. 250, 251.

[460] North Carolina Debates, Elliot, IV. 250, 251.

[461] The march of the country people upon Providence, on the 4th of
July, 1788, and the manner in which they compelled the inhabitants of
the town to abandon their purpose of celebrating the adoption of the
Constitution by nine States,--dictating even their toasts and
salutes,--reads more like a page in Diedrich Knickerbocker's History
of New York than like anything else. But it is a veracious as well as
a most amusing story. (See Staples's Annals of Providence, pp.
329-335.)

[462] There were 2,708 votes thrown against it, and 232 in its favor.
This occurred in March, 1788.



APPENDIX.


NOTE

ON THE AUTHORSHIP OF THE ORDINANCE OF 1787.

(See page 344, _ante_.)

When writing this volume, I prepared an elaborate note, for the
purpose of proving that the Ordinance of 1787 was drawn up by Nathan
Dane. The subsequent publication by Mr. Charles King, of New York, of
an autograph letter of Mr. Dane's to his father, the Hon. Rufus King,
written a few days after the passage of the Ordinance, put an end to
all possibility of controversy on this subject, and made it
unnecessary for me to burden my readers with a discussion of Mr.
Dane's claim to be regarded as the author of that instrument.

The following sentence in Mr. Dane's letter to Mr. King is decisive of
the point which has sometimes been controverted:--

     "When I drew the Ordinance, (which passed, a few words
     excepted, as I originally formed it,) I had no idea the
     States would agree to the sixth article, prohibiting slavery,
     as only Massachusetts, of the Eastern States, was present,
     and therefore omitted it in the draft; but finding the House
     favorably disposed on the subject, after we had completed the
     other parts, I moved the article, which was agreed to without
     opposition."


FIRST DRAFT OF THE CONSTITUTION,

AS REPORTED BY THE COMMITTEE OF DETAIL.

                                         MONDAY, _August 6_.

_In Convention._--Mr. RUTLEDGE delivered in the report of the
committee of detail, as follows,--a printed copy being at the same
time furnished to each member:--

     We, the people of the States of New Hampshire, Massachusetts,
     Rhode Island and Providence Plantations, Connecticut, New
     York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia,
     North Carolina, South Carolina, and Georgia, do ordain,
     declare, and establish the following Constitution for the
     government of ourselves and our posterity:--

     ARTICLE I.--The style of the government shall be, "The United
     States of America."

     ART. II.--The government shall consist of supreme
     legislative, executive, and judicial powers.

     ART. III.--The legislative power shall be vested in a
     Congress, to consist of two separate and distinct bodies of
     men, a House of Representatives and a Senate; each of which
     shall in all cases have a negative on the other. The
     legislature shall meet on the first Monday in December in
     every year.

     ART. IV.--Sect. 1. The members of the House of
     Representatives shall be chosen, every second year, by the
     people of the several States comprehended within this Union.
     The qualifications of the electors shall be the same, from
     time to time, as those of the electors, in the several
     States, of the most numerous branch of their own
     legislatures.

     Sect. 2. Every member of the House of Representatives shall
     be of the age of twenty-five years at least; shall have been
     a citizen in the United States for at least three years
     before his election; and shall be, at the time of his
     election, a resident of the State in which he shall be
     chosen.

     Sect. 3. The House of Representatives shall, at its first
     formation, and until the number of citizens and inhabitants
     shall be taken in the manner hereinafter described, consist
     of sixty-five members, of whom three shall be chosen in New
     Hampshire, eight in Massachusetts, one in Rhode Island and
     Providence Plantations, five in Connecticut, six in New York,
     four in New Jersey, eight in Pennsylvania, one in Delaware,
     six in Maryland, ten in Virginia, five in North Carolina,
     five in South Carolina, and three in Georgia.

     Sect. 4. As the proportions of numbers in different States
     will alter from time to time; as some of the States may
     hereafter be divided; as others may be enlarged by addition
     of territory; as two or more States may be united; as new
     States will be erected within the limits of the United
     States,--the legislature shall, in each of these cases,
     regulate the number of representatives by the number of
     inhabitants, according to the provisions hereinafter made, at
     the rate of one for every forty thousand.

     Sect. 5. All bills for raising or appropriating money, and
     for fixing the salaries of the officers of government, shall
     originate in the House of Representatives, and shall not be
     altered or amended by the Senate. No money shall be drawn
     from the public treasury, but in pursuance of appropriations
     that shall originate in the House of Representatives.

     Sect. 6. The House of Representatives shall have the sole
     power of impeachment. It shall choose its speaker and other
     officers.

     Sect. 7. Vacancies in the House of Representatives shall be
     supplied by writs of election from the executive authority of
     the State in the representation from which they shall happen.

     ART. V.--Sect. 1. The Senate of the United States shall be
     chosen by the legislatures of the several States. Each
     legislature shall choose two members. Vacancies may be
     supplied by the executive until the next meeting of the
     legislature. Each member shall have one vote.

     Sect. 2. The senators shall be chosen for six years; but
     immediately after the first election, they shall be divided,
     by lot, into three classes, as nearly as may be, numbered
     one, two, and three. The seats of the members of the first
     class shall be vacated at the expiration of the second year;
     of the second class at the expiration of the fourth year; of
     the third class at the expiration of the sixth year; so that
     a third part of the members may be chosen every second year.

     Sect. 3. Every member of the Senate shall be of the age of
     thirty years at least; shall have been a citizen in the
     United States for at least four years before his election;
     and shall be, at the time of his election, a resident of the
     State for which he shall be chosen.

     Sect. 4. The Senate shall choose its own President and other
     officers.

     ART. VI.--Sect. 1. The times, and places, and manner, of
     holding the elections of the members of each House, shall be
     prescribed by the legislature of each State; but their
     provisions concerning them may, at any time, be altered by
     the legislature of the United States.

     Sect. 2. The legislature of the United States shall have
     authority to establish such uniform qualifications of the
     members of each House, with regard to property, as to the
     said legislature shall seem expedient.

     Sect. 3. In each House a majority of the members shall
     constitute a quorum to do business; but a smaller number may
     adjourn from day to day.

     Sect. 4. Each House shall be the judge of the elections,
     returns, and qualifications of its own members.

     Sect. 5. Freedom of speech and debate in the legislature
     shall not be impeached or questioned in any court or place
     out of the legislature; and the members of each House shall,
     in all cases, except treason, felony, and breach of the
     peace, be privileged from arrest during their attendance at
     Congress, and in going to and returning from it.

     Sect. 6. Each House may determine the rules of its
     proceedings; may punish its members for disorderly behavior;
     and may expel a member.

     Sect. 7. The House of Representatives, and the Senate when it
     shall be acting in a legislative capacity, shall keep a
     journal of their proceedings; and shall, from time to time,
     publish them; and the yeas and nays of the members of each
     House, on any question, shall, at the desire of one fifth
     part of the members present, be entered on the Journal.

     Sect. 8. Neither House, without the consent of the other,
     shall adjourn for more than three days, nor to any other
     place than that at which the two Houses are sitting. But this
     regulation shall not extend to the Senate when it shall
     exercise the powers mentioned in the ---- Article.

     Sect. 9. The members of each House shall be ineligible to,
     and incapable of holding, any office under the authority of
     the United States, during the time for which they shall
     respectively be elected; and the members of the Senate shall
     be ineligible to, and incapable of holding, any such office
     for one year afterwards.

     Sect. 10. The members of each House shall receive a
     compensation for their services, to be ascertained and paid
     by the State in which they shall be chosen.

     Sect. 11. The enacting style of the laws of the United States
     shall be, "Be it enacted, and it is hereby enacted, by the
     House of Representatives, and by the Senate of the United
     States, in Congress assembled."

     Sect. 12. Each House shall possess the right of originating
     bills, except in the cases before mentioned.

     Sect. 13. Every bill which shall have passed the House of
     Representatives and the Senate shall, before it becomes a
     law, be presented to the President of the United States for
     his revision. If, upon such revision, he approve of it, he
     shall signify his approbation by signing it. But if, upon
     such revision, it shall appear to him improper for being
     passed into a law, he shall return it, together with his
     objections against it, to that House in which it shall have
     originated; who shall enter the objections at large on their
     Journal, and proceed to reconsider the bill. But if, after
     such reconsideration, two thirds of that House shall,
     notwithstanding the objections of the President, agree to
     pass it, it shall, together with his objections, be sent to
     the other House, by which it shall likewise be reconsidered,
     and, if approved by two thirds of the other House also, it
     shall become a law. But, in all such cases, the votes of both
     Houses shall be determined by yeas and nays; and the names of
     the persons voting for or against the bill shall be entered
     on the Journal of each House respectively. If any bill shall
     not be returned by the President within seven days after it
     shall have been presented to him, it shall be a law, unless
     the legislature, by their adjournment, prevent its return, in
     which case it shall not be a law.

     ART. VII.--Sect. 1. The legislature of the United States
     shall have the power to lay and collect taxes, duties,
     imposts, and excises;

     To regulate commerce with foreign nations, and among the
     several states;

     To establish an uniform rule of naturalization throughout the
     United States;

     To coin money;

     To regulate the value of foreign coin;

     To fix the standard of weights and measures;

     To establish post-offices;

     To borrow money, and emit bills, on the credit of the United
     States;

     To appoint a treasurer by ballot;

     To constitute tribunals inferior to the supreme court;

     To make rules concerning captures on land and water;

     To declare the law and punishment of piracies and felonies
     committed on the high seas, and the punishment of
     counterfeiting the coin of the United States, and of offences
     against the law of nations;

     To subdue a rebellion in any State on the application of its
     legislature;

     To make war;

     To raise armies;

     To build and equip fleets;

     To call forth the aid of the militia, in order to execute the
     laws of the Union, enforce treaties, suppress insurrections,
     and repel invasions;

     And to make all laws that shall be necessary and proper for
     carrying into execution the foregoing powers, and all other
     powers vested by this Constitution in the government of the
     United States, or in any department or office thereof.

     Sect. 2. Treason against the United States shall consist only
     in levying war against the United States, or any of them; and
     in adhering to the enemies of the United States, or any of
     them. The legislature of the United States shall have power
     to declare the punishment of treason. No person shall be
     convicted of treason, unless on the testimony of two
     witnesses. No attainder of treason shall work corruption of
     blood, nor forfeiture, except during the life of the person
     attainted.

     Sect. 3. The proportions of direct taxation shall be
     regulated by the whole number of white and other free
     citizens and inhabitants of every age, sex, and condition,
     including those bound to servitude for a term of years, and
     three fifths of all other persons not comprehended in the
     foregoing description (except Indians not paying taxes);
     which number shall, within six years after the first meeting
     of the legislature, and within the term of every ten years
     afterwards, be taken in such a manner as the said legislature
     shall direct.

     Sect. 4. No tax or duty shall be laid by the legislature on
     articles exported from any State; nor on the migration or
     importation of such persons as the several States shall think
     proper to admit; nor shall such migration or importation be
     prohibited.

     Sect. 5. No capitation tax shall be laid, unless in
     proportion to the census hereinbefore directed to be taken.

     Sect. 6. No navigation act shall be passed without the assent
     of two thirds of the members present in each House.

     Sect. 7. The United States shall not grant any title of
     nobility.

     ART. VIII.--The acts of the legislature of the United States
     made in pursuance of this Constitution, and all treaties made
     under the authority of the United States, shall be the
     supreme law of the several States, and of their citizens and
     inhabitants; and the judges in the several States shall be
     bound thereby in their decisions, anything in the
     constitutions or laws of the several States to the contrary
     notwithstanding.

     ART. IX.--Sect. 1. The Senate of the United States shall have
     power to make treaties, and to appoint ambassadors, and
     judges of the supreme court.

     Sect. 2. In all disputes and controversies now subsisting, or
     that may hereafter subsist, between two or more States,
     respecting jurisdiction or territory, the Senate shall
     possess the following powers:--Whenever the legislature, or
     the executive authority, or lawful agent of any State, in
     controversy with another, shall, by memorial to the Senate,
     state the matter in question, and apply for a hearing, notice
     of such memorial and application shall be given, by order of
     the Senate, to the legislature, or the executive authority,
     of the other State in controversy. The Senate shall also
     assign a day for the appearance of the parties, by their
     agents, before that House. The agents shall be directed to
     appoint, by joint consent, commissioners or judges to
     constitute a court for hearing and determining the matter in
     question. But if the agents cannot agree, the Senate shall
     name three persons out of each of the several States; and
     from the list of such persons, each party shall alternately
     strike out one, until the number shall be reduced to
     thirteen; and from that number not less than seven, nor more
     than nine, names, as the Senate shall direct, shall, in their
     presence, be drawn out by lot; and the persons whose names
     shall be so drawn, or any five of them, shall be
     commissioners or judges to hear and finally determine the
     controversy; provided a majority of the judges who shall hear
     the cause agree in the determination. If either party shall
     neglect to attend at the day assigned, without showing
     sufficient reasons for not attending, or being present shall
     refuse to strike, the Senate shall proceed to nominate three
     persons out of each State, and the Clerk of the Senate shall
     strike in behalf of the party absent or refusing. If any of
     the parties shall refuse to submit to the authority of such
     court, or shall not appear to prosecute or defend their claim
     or cause, the court shall nevertheless proceed to pronounce
     judgment. The judgment shall be final and conclusive. The
     proceedings shall be transmitted to the President of the
     Senate, and shall be lodged among the public records, for the
     security of the parties concerned. Every commissioner shall,
     before he sit in judgment, take an oath, to be administered
     by one of the judges of the supreme or superior court of the
     State where the cause shall be tried, "well and truly to hear
     and determine the matter in question, according to the best
     of his judgment, without favor, affection, or hope of
     reward."

     Sect. 3. All controversies concerning lands claimed under
     different grants of two or more States, whose jurisdictions,
     as they respect such lands, shall have been decided or
     adjusted subsequently to such grants, or any of them, shall,
     on application to the Senate, be finally determined, as near
     as may be, in the same manner as is before prescribed for
     deciding controversies between different States.

     ART. X.--Sect. 1. The executive power of the United States
     shall be vested in a single person. His style shall be, "The
     President of the United States of America," and his title
     shall be, "His Excellency." He shall be elected by ballot by
     the legislature. He shall hold his office during the term of
     seven years; but shall not be elected a second time.

     Sect. 2. He shall, from time to time, give information to the
     legislature of the state of the Union. He may recommend to
     their consideration such measures as he shall judge necessary
     and expedient. He may convene them on extraordinary
     occasions. In case of disagreement between the two Houses,
     with regard to the time of adjournment, he may adjourn them
     to such time as he thinks proper. He shall take care that the
     laws of the United States be duly and faithfully executed. He
     shall commission all the officers of the United States; and
     shall appoint officers in all cases not otherwise provided
     for by this Constitution. He shall receive ambassadors, and
     may correspond with the supreme executives of the several
     States. He shall have power to grant reprieves and pardons,
     but his pardon shall not be pleadable in bar of an
     impeachment. He shall be commander-in-chief of the army and
     navy of the United States, and of the militia of the several
     States. He shall, at stated times, receive for his services a
     compensation, which shall neither be increased nor diminished
     during his continuance in office. Before he shall enter on
     the duties of his department, he shall take the following
     oath or affirmation, "I ---- solemnly swear (or affirm) that
     I will faithfully execute the office of President of the
     United States of America." He shall be removed from his
     office on impeachment by the House of Representatives, and
     conviction, in the supreme court, of treason, bribery, or
     corruption. In case of his removal, as aforesaid, death,
     resignation, or disability to discharge the powers and duties
     of his office, the President of the Senate shall exercise
     those powers and duties until another President of the United
     States be chosen, or until the disability of the President be
     removed.

     ART. XI.--Sect. 1. The judicial power of the United States
     shall be vested in one supreme court, and in such inferior
     courts as shall, when necessary, from time to time, be
     constituted by the legislature of the United States.

     Sect. 2. The judges of the supreme court, and of the inferior
     courts, shall hold their offices during good behavior. They
     shall, at stated times, receive for their services a
     compensation, which shall not be diminished during their
     continuance in office.

     Sect. 3. The jurisdiction of the supreme court shall extend
     to all cases arising under laws passed by the legislature of
     the United States; to all cases affecting ambassadors, other
     public ministers and consuls; to the trial of impeachments of
     officers of the United States; to all cases of admiralty and
     maritime jurisdiction; to controversies between two or more
     States (except such as shall regard territory or
     jurisdiction); between a State and citizens of another State;
     between citizens of different States; and between a State, or
     the citizens thereof, and foreign states, citizens, or
     subjects. In cases of impeachment, cases affecting
     ambassadors, other public ministers and consuls, and those in
     which a State shall be party, this jurisdiction shall be
     original. In all the other cases before