summaryrefslogtreecommitdiff
path: root/40679-0.txt
diff options
context:
space:
mode:
Diffstat (limited to '40679-0.txt')
-rw-r--r--40679-0.txt21869
1 files changed, 21869 insertions, 0 deletions
diff --git a/40679-0.txt b/40679-0.txt
new file mode 100644
index 0000000..da31041
--- /dev/null
+++ b/40679-0.txt
@@ -0,0 +1,21869 @@
+*** START OF THE PROJECT GUTENBERG EBOOK 40679 ***
+
+Transcriber's Note:
+
+In text file only, superscripts (located in the Appendix) have been
+enclosed in curly brackets {}.
+
+Remaining transcriber's notes are at the end of the text.
+
+ * * * * *
+
+
+
+ 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 mentioned, it shall
+ be appellate, with such exceptions, and under such
+ regulations, as the legislature shall make. The legislature
+ may assign any part of the jurisdiction above mentioned,
+ (except the trial of the President of the United States,) in
+ the manner and under the limitations which it shall think
+ proper, to such inferior courts as it shall constitute from
+ time to time.
+
+ Sect. 4. The trial of all criminal offences (except in cases
+ of impeachment) shall be in the State where they shall be
+ committed; and shall be by jury.
+
+ Sect. 5. Judgment, in cases of impeachment, shall not extend
+ further than to removal from office, and disqualification to
+ hold and enjoy any office of honor, trust, or profit, under
+ the United States. But the party convicted shall nevertheless
+ be liable and subject to indictment, trial, judgment, and
+ punishment, according to law.
+
+ ART. XII.--No State shall coin money; nor grant letters of
+ marque and reprisal; nor enter into any treaty, alliance, or
+ confederation; nor grant any title of nobility.
+
+ ART. XIII.--No State, without the consent of the legislature
+ of the United States, shall emit bills of credit, or make
+ anything but specie a tender in payment of debts; nor lay
+ imposts or duties on imports; nor keep troops or ships of war
+ in time of peace; nor enter into any agreement or compact
+ with another State, or with any foreign power; nor engage in
+ any war, unless it shall be actually invaded by enemies, or
+ the danger of invasion be so imminent as not to admit of a
+ delay until the legislature of the United States can be
+ consulted.
+
+ ART. XIV.--The citizens of each State shall be entitled to
+ all privileges and immunities of citizens in the several
+ States.
+
+ ART. XV.--Any person charged with treason, felony, or high
+ misdemeanor in any State, who shall flee from justice, and
+ shall be found in any other State, shall, on demand of the
+ executive power of the State from which he fled, be delivered
+ up and removed to the State having jurisdiction of the
+ offence.
+
+ ART. XVI.--Full faith shall be given in each State to the
+ acts of the legislatures, and to the records and judicial
+ proceedings of the courts and magistrates, of every other
+ State.
+
+ ART. XVII.--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.
+
+ ART. XVIII.--The United States shall guarantee to each State
+ a republican form of government; and shall protect each State
+ against foreign invasions, and, on the application of its
+ legislature, against domestic violence.
+
+ ART. XIX.--On the application of the legislatures of two
+ thirds of the States in the Union, for an amendment of this
+ Constitution, the legislature of the United States shall call
+ a convention for that purpose.
+
+ ART. XX.--The members of the legislatures, and the executive
+ and judicial officers of the United States, and of the
+ several States, shall be bound by oath to support this
+ Constitution.
+
+ ART. XXI.--The ratification of the conventions of ---- States
+ shall be sufficient for organizing this Constitution.
+
+ ART. XXII.--This Constitution shall be laid before the United
+ States in Congress assembled, for their approbation; and it
+ is the opinion of this Convention, that it should be
+ afterwards submitted to a convention chosen in each State,
+ under the recommendation of its legislature, in order to
+ receive the ratification of such convention.
+
+ ART. XXIII.--To introduce this government, it is the opinion
+ of this Convention, that each assenting convention should
+ notify its assent and ratification to the United States in
+ Congress assembled; that Congress, after receiving the assent
+ and ratification of the conventions of ---- States, should
+ appoint and publish a day, as early as may be, and appoint a
+ place, for commencing proceedings under this Constitution;
+ that, after such publication, the legislatures of the several
+ States should elect members of the Senate, and direct the
+ election of members of the House of Representatives; and that
+ the members of the legislature should meet at the time and
+ place assigned by Congress, and should, as soon as may be
+ after their meeting, choose the President of the United
+ States, and proceed to execute this Constitution.
+
+ * * * * *
+
+CONSTITUTION
+
+OF
+
+THE UNITED STATES OF AMERICA.[463]
+
+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.
+
+
+ARTICLE. I.
+
+SECTION. 1. All legislative Powers herein granted shall be vested in a
+Congress of the United States, which shall consist of a Senate and
+House of Representatives.
+
+SECTION. 2. {1} The House of Representatives shall be composed of
+Members chosen every second Year by the People of the several States,
+and the Electors in each State shall have the Qualifications requisite
+for Electors of the most numerous Branch of the State Legislature.
+
+{2} No Person shall be a Representative who shall not have attained to
+the Age of twenty five Years, and been seven Years a Citizen of the
+United States, and who shall not, when elected, be an Inhabitant of
+that State in which he shall be chosen.
+
+{3} Representatives and direct Taxes shall be apportioned among the
+several States which may be included within this Union, according to
+their respective Numbers, which shall be determined by adding to the
+whole Number of free Persons, including those bound to Service for a
+Term of Years, and excluding Indians not taxed, three fifths of all
+other Persons. The actual Enumeration shall be made within three Years
+after the first Meeting of the Congress of the United States, and
+within every subsequent Term of ten Years, in such Manner as they
+shall by Law direct. The Number of Representatives shall not exceed
+one for every thirty Thousand, but each State shall have at Least one
+Representative; and until such enumeration shall be made, the State of
+New Hampshire shall be entitled to chuse three, Massachusetts eight,
+Rhode-Island and Providence Plantations one, Connecticut five,
+New-York six, New Jersey four, Pennsylvania eight, Delaware one,
+Maryland six, Virginia ten, North Carolina five, South Carolina five,
+and Georgia three.
+
+{4} When vacancies happen in the Representation from any State, the
+Executive Authority thereof shall issue Writs of Election to fill such
+Vacancies.
+
+{5} The House of Representatives shall chuse their Speaker and other
+Officers; and shall have the sole Power of Impeachment.
+
+SECTION. 3. {1} The Senate of the United States shall be composed of
+two Senators from each State, chosen by the Legislature thereof, for
+six Years; and each Senator shall have one Vote.
+
+{2} Immediately after they shall be assembled in Consequence of the
+first Election, they shall be divided as equally as may be into three
+Classes. The Seats of the Senators 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, and of the third Class at the
+Expiration of the sixth Year, so that one-third may be chosen every
+second Year; and if Vacancies happen by Resignation, or otherwise,
+during the Recess of the Legislature of any State, the Executive
+thereof may make temporary Appointments until the next Meeting of the
+Legislature, which shall then fill such Vacancies.
+
+{3} No Person shall be a Senator who shall not have attained to the
+Age of thirty Years, and been nine Years a Citizen of the United
+States, and who shall not, when elected, be an Inhabitant of that
+State for which he shall be chosen.
+
+{4} The Vice President of the United States shall be President of the
+Senate, but shall have no Vote, unless they be equally divided.
+
+{5} The Senate shall chuse their other Officers, and also a President
+pro tempore, in the Absence of the Vice President, or when he shall
+exercise the office of President of the United States.
+
+{6} The Senate shall have the sole Power to try all Impeachments. When
+sitting for that Purpose, they shall be on Oath or Affirmation. When
+the President of the United States is tried, the Chief Justice shall
+preside: And no Person shall be convicted without the Concurrence of
+two thirds of the Members present.
+
+{7} Judgment in Cases of Impeachment shall not extend further than to
+removal from Office, and Disqualification to hold and enjoy any Office
+of honour, Trust or Profit under the United States: but the Party
+convicted shall nevertheless be liable and subject to Indictment,
+Trial, Judgment and Punishment, according to Law.
+
+SECTION. 4. {1} The Times, Places and Manner of holding Elections for
+Senators and Representatives, shall be prescribed in each State by the
+Legislature thereof; but the Congress may at any time by Law make or
+alter such Regulations, except as to the Places of chusing Senators.
+
+{2} The Congress shall assemble at least once in every Year, and such
+Meeting shall be on the first Monday in December, unless they shall by
+Law appoint a different Day.
+
+SECTION. 5. {1} Each House shall be the Judge of the Elections,
+Returns and Qualifications of its own Members, and a Majority of each
+shall constitute a Quorum to do business; but a smaller Number may
+adjourn from day to day, and may be authorized to compel the
+Attendance of absent Members, in such Manner, and under such Penalties
+as each House may provide.
+
+{2} Each House may determine the Rules of its Proceedings, punish its
+Members for disorderly Behaviour, and, with the Concurrence of two
+thirds, expel a Member.
+
+{3} Each House shall keep a Journal of its Proceedings, and from time
+to time publish the same, excepting such Parts as may in their
+Judgment require Secrecy; and the Yeas and Nays of the Members of
+either House on any question shall, at the Desire of one fifth of
+those Present, be entered on the Journal.
+
+{4} Neither House, during the Session of Congress, shall, without the
+Consent of the other, adjourn for more than three days, nor to any
+other Place than that in which the two Houses shall be sitting.
+
+SECTION. 6. {1} The Senators and Representatives shall receive a
+Compensation for their Services, to be ascertained by Law, and paid
+out of the Treasury of the United States. They shall in all Cases,
+except Treason, Felony and Breach of the Peace, be privileged from
+Arrest during their Attendance at the Session of their respective
+Houses, and in going to and returning from the same; and for any
+Speech or Debate in either House, they shall not be questioned in any
+other Place.
+
+{2} No Senator or Representative shall, during the Time for which he
+was elected, be appointed to any civil Office under the Authority of
+the United States, which shall have been created, or the Emoluments
+whereof shall have been encreased during such time; and no Person
+holding any Office under the United States, shall be a Member of
+either House during his Continuance in Office.
+
+SECTION. 7. {1} All Bills for raising Revenue shall originate in the
+House of Representatives; but the Senate may propose or concur with
+Amendments as on other Bills.
+
+{2} Every Bill which shall have passed the House of Representatives
+and the Senate, shall, before it become a Law, be presented to the
+President of the United States; If he approve he shall sign it, but if
+not he shall return it, with his Objections to that House in which it
+shall have originated, who shall enter the Objections at large on
+their Journal, and proceed to reconsider it. If after such
+Reconsideration two thirds of that House shall agree to pass the Bill,
+it shall be sent, together with the Objections, to the other House, by
+which it shall likewise be reconsidered, and if approved by two thirds
+of that House, 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 and against the Bill shall be entered on the
+Journal of each House respectively. If any Bill shall not be returned
+by the President within ten Days (Sundays excepted) after it shall
+have been presented to him, the Same shall be a Law, in like Manner as
+if he had signed it, unless the Congress by their Adjournment prevent
+its Return, in which Case it shall not be a Law.
+
+{3} Every Order, Resolution, or Vote to which the Concurrence of the
+Senate and House of Representatives may be necessary (except on a
+question of Adjournment) shall be presented to the President of the
+United States; and before the same shall take Effect, shall be
+approved by him, or being disapproved by him, shall be repassed by two
+thirds of the Senate and House of Representatives, according to the
+Rules and Limitations prescribed in the Case of a Bill.
+
+SECTION. 8. The Congress shall have Power {1} 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; but all
+Duties, Imposts and Excises shall be uniform throughout the United
+States;
+
+{2} To borrow Money on the credit of the United States;
+
+{3} To regulate Commerce with foreign Nations, and among the several
+States, and with the Indian Tribes;
+
+{4} To establish an uniform Rule of Naturalization, and uniform Laws
+on the subject of Bankruptcies throughout the United States;
+
+{5} To coin Money, regulate the Value thereof, and of foreign Coin,
+and fix the Standard of Weights and Measures;
+
+{6} To provide for the Punishment of counterfeiting the Securities and
+current Coin of the United States;
+
+{7} To establish Post Offices and post Roads;
+
+{8} To promote the Progress of Science and useful Arts, by securing
+for limited Times to Authors and Inventors the exclusive Right to
+their respective Writings and Discoveries;
+
+{9} To constitute Tribunals inferior to the supreme Court;
+
+{10} To define and punish Piracies and Felonies committed on the high
+Seas, and Offences against the Law of Nations;
+
+{11} To declare War, grant Letters of Marque and Reprisal, and make
+Rules concerning Captures on Land and Water;
+
+{12} To raise and support Armies, but no Appropriation of Money to
+that Use shall be for a longer Term than two Years;
+
+{13} To provide and maintain a Navy;
+
+{14} To make Rules for the Government and Regulation of the land and
+naval Forces;
+
+{15} To provide for calling forth the Militia to execute the Laws of
+the Union, suppress Insurrections and repel Invasions;
+
+{16} 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 respectively, the
+Appointment of the Officers, and the Authority of training the Militia
+according to the discipline prescribed by Congress;
+
+{17} To exercise exclusive Legislation in all Cases whatsoever, over
+such District (not exceeding ten Miles square) as may, by Cession of
+particular States, and the Acceptance of Congress, become the Seat of
+the Government of the United States, and to exercise like Authority
+over all Places purchased by the Consent of the Legislature of the
+State in which the same shall be, for the Erection of Forts,
+Magazines, Arsenals, Dock-Yards, and other needful Buildings;--And
+
+{18} To make all Laws which 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 Officer thereof.
+
+SECTION. 9. {1} The Migration or Importation of such Persons as any of
+the States now existing shall think proper to admit, shall not be
+prohibited by the Congress prior to the Year one thousand eight
+hundred and eight, but a Tax or Duty may be imposed on such
+Importation, not exceeding ten dollars for each Person.
+
+{2} 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.
+
+{3} No Bill of Attainder or ex post facto Law shall be passed.
+
+{4} No Capitation, or other direct, Tax shall be laid, unless in
+Proportion to the Census or Enumeration herein before directed to be
+taken.
+
+{5} No Tax or Duty shall be laid on Articles exported from any State.
+
+{6} 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.
+
+{7} No Money shall be drawn from the Treasury, but in consequence of
+Appropriations made by Law; and a regular Statement and Account of the
+Receipts and Expenditures of all public Money shall be published from
+time to time.
+
+{8} No Title of Nobility shall be granted by the United States: And no
+Person holding any Office of Profit or Trust under them, shall,
+without the Consent of the Congress, accept of any present, Emolument,
+Office, or Title, of any kind whatever, from any King, Prince, or
+foreign State.
+
+SECTION. 10. {1} No State shall enter into any Treaty, Alliance, or
+Confederation; grant Letters of Marque and Reprisal; coin Money; emit
+Bills of Credit; make any Thing but gold and silver Coin a Tender in
+Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
+Law impairing the Obligation of Contracts, or grant any Title of
+Nobility.
+
+{2} No State shall, without the Consent of the Congress, lay any
+Imposts or Duties on Imports or Exports, except what may be absolutely
+necessary for executing it's inspection Laws: and the net Produce of
+all Duties and Imposts, laid by any State on Imports or Exports, shall
+be for the Use of the Treasury of the United States; and all such Laws
+shall be subject to the Revision and Control of the Congress.
+
+{3} No State shall, without the Consent of Congress, lay any Duty of
+Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
+Agreement or Compact with another State, or with a foreign Power, or
+engage in War, unless actually invaded, or in such imminent Danger as
+will not admit of Delay.
+
+
+ARTICLE. II.
+
+SECTION. 1. {1} The executive Power shall be vested in a President of
+the United States of America. He shall hold his Office during the Term
+of four Years, and, together with the Vice President, chosen for the
+same Term, be elected, as follows
+
+{2} Each State shall appoint, in such Manner as the Legislature
+thereof may direct, a Number of Electors, equal to the whole Number of
+Senators and Representatives to which the State may be entitled in the
+Congress: but no Senator or Representative, or Person holding an
+Office of Trust or Profit under the United States, shall be appointed
+an Elector.
+
+The Electors shall meet in their respective States, and vote by Ballot
+for two Persons, of whom one at least shall not be an Inhabitant of
+the same State with themselves. And they shall make a List of all the
+Persons voted for, and of the Number of Votes for each; which List
+they shall sign and certify, and transmit sealed to the Seat of the
+Government of the United States, directed to the President of the
+Senate. The President of the Senate shall, in the Presence of the
+Senate and House of Representatives, open all the Certificates, and
+the Votes shall then be counted. The Person having the greatest Number
+of Votes shall be the President, if such Number be a Majority of the
+whole Number of Electors appointed; and if there be more than one who
+have such Majority, and have an equal Number of Votes, then the House
+of Representatives shall immediately chuse by Ballot one of them for
+President; and if no Person have a Majority, then from the five
+highest on the List the said House shall in like Manner chuse the
+President. But in chusing the President, the Votes shall be taken by
+States, the Representation from each State having one Vote; A quorum
+for this Purpose shall consist of a Member or Members from two-thirds
+of the States, and a Majority of all the States shall be necessary to
+a Choice. In every Case, after the Choice of the President, the Person
+having the greatest Number of Votes of the Electors shall be the Vice
+President. But if there should remain two or more who have equal
+Votes, the Senate shall chuse from them by Ballot the Vice
+President.[464]
+
+{3} The Congress may determine the Time of chusing the Electors, and
+the Day on which they shall give their Votes; which Day shall be the
+same throughout the United States.
+
+{4} No Person except a natural born Citizen, or a Citizen of the
+United States, at the time of the Adoption of this Constitution, shall
+be eligible to the Office of President; neither shall any Person be
+eligible to that Office who shall not have attained to the Age of
+thirty five Years, and been fourteen Years a Resident within the
+United States.
+
+{5} In Case of the Removal of the President from Office, or of his
+Death, Resignation, or Inability to discharge the Powers and Duties of
+the said Office, the same shall devolve on the Vice President, and the
+Congress may by Law provide for the Case of Removal, Death,
+Resignation or Inability, both of the President and Vice President,
+declaring what Officer shall then act as President, and such Officer
+shall act accordingly, until the Disability be removed, or a President
+shall be elected.
+
+{6} The President shall, at stated Times, receive for his Services, a
+Compensation, which shall neither be encreased nor diminished during
+the Period for which he shall have been elected, and he shall not
+receive within that Period any other Emolument from the United States,
+or any of them.
+
+{7} Before he enter on the Execution of his Office, he shall take the
+following Oath or Affirmation:--
+
+"I do solemnly swear (or affirm) that I will faithfully execute the
+Office of President of the United States, and will to the best of my
+Ability, preserve, protect and defend the Constitution of the United
+States."
+
+SECTION. 2. {1} The President shall be Commander in Chief of the Army
+and Navy of the United States, and of the Militia of the several
+States, when called into the actual Service of the United States; he
+may 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, and he shall have Power to grant
+Reprieves and Pardons for Offences against the United States, except
+in Cases of Impeachment.
+
+{2} He shall have Power, by and with the Advice and Consent of the
+Senate, to make Treaties, provided two thirds of the Senators present
+concur; and he shall nominate, and by and with the Advice and Consent
+of the Senate, shall appoint Ambassadors, other public Ministers and
+Consuls, Judges of the supreme Court, and all other Officers of the
+United States, whose Appointments are not herein otherwise provided
+for, and which shall be established by Law: but the Congress may by
+Law vest the Appointment of such inferior Officers, as they think
+proper, in the President alone, in the Courts of Law, or in the Heads
+of Departments.
+
+{3} The President shall have Power to fill up all Vacancies that may
+happen during the Recess of the Senate, by granting Commissions which
+shall expire at the End of their next Session.
+
+SECTION. 3. He shall from time to time give to the Congress
+Information of the State of the Union, and recommend to their
+Consideration such Measures as he shall judge necessary and expedient;
+he may, on extraordinary Occasions, convene both Houses, or either of
+them, and in Case of Disagreement between them, with Respect to the
+time of Adjournment, he may adjourn them to such Time as he shall
+think proper; he shall receive Ambassadors and other public Ministers;
+he shall take Care that the Laws be faithfully executed, and shall
+Commission all the officers of the United States.
+
+SECTION. 4. The President, Vice President and all civil Officers of
+the United States, shall be removed from Office on Impeachment for,
+and Conviction of, Treason, Bribery, or other high Crimes and
+Misdemeanors.
+
+
+ARTICLE III.
+
+SECTION. 1. The judicial Power of the United States, shall be vested
+in one supreme Court, and in such inferior Courts as the Congress may
+from time to time ordain and establish. The Judges, both of the
+supreme and inferior Courts, shall hold their Offices during good
+Behavior, and shall, at stated Times, receive for their Services, a
+Compensation, which shall not be diminished during their Continuance
+in Office.
+
+SECTION. 2. {1} The judicial Power shall extend to all Cases, in Law
+and Equity, arising under this Constitution, the Laws of the United
+States, and Treaties made, or which shall be made, under their
+Authority;--to all Cases affecting Ambassadors, other public
+Ministers, and Consuls;--to all Cases of admiralty and maritime
+Jurisdiction;--to Controversies to which the United States shall be a
+Party;--to Controversies between two or more States;--between a State
+and Citizens of another State;--between Citizens of different
+States,--between Citizens of the same State claiming Lands under
+Grants of different States, and between a State, or the Citizens
+thereof, and foreign States, Citizens or Subjects.
+
+{2} In all Cases affecting Ambassadors, other public Ministers and
+Consuls, and those in which a State shall be Party, the supreme Court
+shall have original Jurisdiction. In all the other Cases before
+mentioned, the supreme Court shall have appellate Jurisdiction, both
+as to Law and Fact, with such Exceptions, and under such Regulations
+as the Congress shall make.
+
+{3} The Trial of all Crimes, except in Cases of Impeachment, shall be
+by Jury; and such Trial shall be held in the State where the said
+Crimes shall have been committed; but when not committed within any
+State, the Trial shall be at such Place or Places as the Congress may
+by Law have directed.
+
+SECTION. 3. {1} Treason against the United States, shall consist only
+in levying War against them, or in adhering to their Enemies, giving
+them Aid and Comfort. No Person shall be convicted of Treason unless
+on the Testimony of two Witnesses to the same overt Act, or on
+Confession in open Court.
+
+{2} The Congress shall have Power to declare the Punishment of
+Treason, but no Attainder of Treason shall work Corruption of Blood,
+or Forfeiture except during the Life of the Person attainted.
+
+
+ARTICLE. IV.
+
+SECTION. 1. Full Faith and Credit shall be given in each State to the
+public Acts, Records, and judicial Proceedings of every other State.
+And the Congress may by general Laws prescribe the Manner in which
+such Acts, Records and Proceedings shall be proved, and the Effect
+thereof.
+
+SECTION. 2 {1} The Citizens of each State shall be entitled to all
+Privileges and Immunities of Citizens in the several States.
+
+{2} A Person charged in any State with Treason, Felony, or other
+Crime, who shall flee from Justice, and be found in another State,
+shall on Demand of the executive Authority of the State from which he
+fled, be delivered up, to be removed to the State having Jurisdiction
+of the Crime.
+
+{3} No Person held to Service or Labour in one State, under the Laws
+thereof, escaping into another, shall, in Consequence of any Law or
+Regulation therein, be discharged from such Service or Labour, but
+shall be delivered up on Claim of the Party to whom such Service or
+Labour may be due.
+
+SECTION. 3. {1} New States may be admitted by the Congress into this
+Union; but no new State shall be formed or erected within the
+Jurisdiction of any other State; nor any State be formed by the
+Junction of two or more States, or Parts of States, without the
+Consent of the Legislatures of the States concerned as well as of the
+Congress.
+
+{2} The Congress 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 shall
+be so construed as to Prejudice any Claims of the United States, or of
+any particular State.
+
+SECTION. 4. The United States shall guarantee to every State in this
+Union a Republican Form of Government, and shall protect each of them
+against Invasion; and on Application of the Legislature, or of the
+Executive (when the Legislature cannot be convened) against domestic
+Violence.
+
+
+ARTICLE. V.
+
+The Congress, whenever two thirds of both Houses shall deem it
+necessary, shall propose Amendments to this Constitution, or, on the
+Application of the Legislatures of two thirds of the several States,
+shall call a Convention for proposing Amendments, which, in either
+Case, shall be valid to all Intents and Purposes, as Part of this
+Constitution, when ratified by the Legislatures of three fourths of
+the several States, or by Conventions in three fourths thereof, as the
+one or the other Mode of Ratification may be proposed by the Congress;
+Provided that no Amendment which may be made prior to the Year one
+thousand eight hundred and eight shall in any Manner affect the first
+and fourth Clauses in the Ninth Section of the first Article; and that
+no State, without its Consent, shall be deprived of its equal Suffrage
+in the Senate.
+
+
+ARTICLE. VI.
+
+{1} All Debts contracted and Engagements entered into, before the
+Adoption of this Constitution, shall be as valid against the United
+States under this Constitution, as under the Confederation.
+
+{2} This Constitution, and the Laws of the United States which shall
+be made in Pursuance thereof; and all Treaties made, or which shall be
+made, under the Authority of the United States, shall be the supreme
+Law of the Land; and the Judges in every State shall be bound thereby,
+any Thing in the Constitution or Laws of any State to the Contrary
+notwithstanding.
+
+{3} The Senators and Representatives before mentioned, and the Members
+of the several State Legislatures, and all executive and judicial
+Officers, both of the United States and of the several States, shall
+be bound by Oath or Affirmation, to support this Constitution; but no
+religious Test shall ever be required as a Qualification to any Office
+or public Trust under the United States.
+
+
+ARTICLE. VII.
+
+The Ratification of the Conventions of nine States, shall be
+sufficient for the Establishment of this Constitution between the
+States so ratifying the Same.
+
+ DONE in Convention by the Unanimous Consent of the States
+ present the Seventeenth Day of September in the Year of our
+ Lord one thousand seven hundred and Eighty seven and of the
+ Independance of the United States of America the Twelfth =In
+ Witness= whereof We have hereunto subscribed our Names,
+
+ G{o}: WASHINGTON--
+ _Presidt and Deputy from Virginia_
+
+ NEW HAMPSHIRE.
+
+ JOHN LANGDON,
+ NICHOLAS GILMAN.
+
+ MASSACHUSETTS.
+
+ NATHANIEL GORHAM,
+ RUFUS KING.
+
+ CONNECTICUT.
+
+ WM. SAML. JOHNSON,
+ ROGER SHERMAN.
+
+ NEW YORK.
+
+ ALEXANDER HAMILTON.
+
+ NEW JERSEY.
+
+ WIL: LIVINGSTON,
+ DAVID BREARLEY,
+ WM. PATERSON,
+ JONA. DAYTON.
+
+ PENNSYLVANIA.
+
+ B. FRANKLIN,
+ THOMAS MIFFLIN,
+ ROBT. MORRIS,
+ GEO: CLYMER,
+ THO{S}. FITZ SIMONS,
+ JARED INGERSOLL,
+ JAMES WILSON,
+ GOUV: MORRIS.
+
+ DELAWARE.
+
+ GEO: READ,
+ GUNNING BEDFORD, jun.
+ JOHN DICKINSON,
+ RICHARD BASSETT.
+ JACO: BROOM.
+
+ MARYLAND.
+
+ JAMES M'HENRY,
+ DAN: OF ST. THOS. JENIFER,
+ DANL. CARROLL.
+
+ VIRGINIA.
+
+ JOHN BLAIR,
+ JAMES MADISON, JR.
+
+ NORTH CAROLINA.
+
+ WM. BLOUNT,
+ RICH'D DOBBS SPAIGHT.
+ HU. WILLIAMSON.
+
+ SOUTH CAROLINA.
+
+ J. RUTLEDGE,
+ CHARLES COTESWORTH PINCKNEY,
+ CHARLES PINCKNEY,
+ PIERCE BUTLER.
+
+ GEORGIA.
+
+ WILLIAM FEW,
+ ABR. BALDWIN.
+
+ Attest:
+
+ WILLIAM JACKSON, _Secretary_.
+
+FOOTNOTES:
+
+[463] This copy of the Constitution has been compared with the Rolls in
+the Department of State, and is punctuated and otherwise printed in
+exact conformity therewith.
+
+[464] Altered by the 12th Amendment.
+
+
+
+
+ARTICLES
+
+IN ADDITION TO, AND AMENDMENT OF,
+
+THE CONSTITUTION OF THE UNITED STATES OF AMERICA,
+
+ PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE
+ SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL
+ CONSTITUTION.[465]
+
+(ARTICLE 1.)
+
+Congress shall make no law respecting an establishment of religion, or
+prohibiting the free exercise thereof; or abridging the freedom of
+speech, or of the press; or the right of the people peaceably to
+assemble, and to petition the Government for a redress of grievances.
+
+(ARTICLE 2.)
+
+A well regulated Militia, being necessary to the security of a free
+State, the right of the people to keep and bear Arms, shall not be
+infringed.
+
+(ARTICLE III.)
+
+No Soldier shall, in time of peace be quartered in any house, without
+the consent of the Owner, nor in time of war, but in a manner to be
+prescribed by law.
+
+(ARTICLE IV.)
+
+The right of the people to be secure in their persons, houses, papers,
+and effects, against unreasonable searches and seizures, shall not be
+violated, and no Warrants shall issue, but upon probable cause,
+supported by Oath or affirmation, and particularly describing the
+place to be searched, and the persons or things to be seized.
+
+(ARTICLE V.)
+
+No person shall be held to answer for a capital, or otherwise infamous
+crime, unless on a presentment or indictment of a Grand Jury, except
+in cases arising in the land or naval forces, or in the Militia, when
+in actual service in time of War or public danger; nor shall any
+person be subject for the same offence to be twice put in jeopardy of
+life or limb; nor shall be compelled in any Criminal Case to be a
+witness against himself, nor be deprived of life, liberty, or
+property, without due process of law; nor shall private property be
+taken for public use, without just compensation.
+
+(ARTICLE VI.)
+
+In all criminal prosecutions, the accused shall enjoy the right to a
+speedy and public trial, by an impartial jury of the State and
+district wherein the crime shall have been committed, which district
+shall have been previously ascertained by law, and to be informed of
+the nature and cause of the accusation; to be confronted with the
+witnesses against him; to have Compulsory process for obtaining
+Witnesses in his favour, and to have the Assistance of Counsel for his
+defence.
+
+(ARTICLE VII.)
+
+In Suits at common law, where the value in controversy shall exceed
+twenty dollars, the right of trial by jury shall be preserved, and no
+fact tried by a jury, shall be otherwise re-examined in any Court of
+the United States, than according to the rules of the common law.
+
+(ARTICLE VIII.)
+
+Excessive bail shall not be required, nor excessive fines imposed, nor
+cruel and unusual punishments inflicted.
+
+(ARTICLE IX.)
+
+The enumeration in the Constitution, of certain rights, shall not be
+construed to deny or disparage others retained by the people.
+
+(ARTICLE X.)
+
+The powers not delegated to the United States by the Constitution, nor
+prohibited by it to the States, are reserved to the States
+respectively, or to the people.
+
+ARTICLE XI.
+
+The Judicial power of the United States shall not be construed to
+extend to any suit in law or equity, commenced or prosecuted against
+one of the United States by Citizens of another State, or by Citizens
+or Subjects of any Foreign State.
+
+ARTICLE XII.
+
+The Electors shall meet in their respective states, and vote by ballot
+for President and Vice President, one of whom, at least, shall not be
+an inhabitant of the same state with themselves; they shall name in
+their ballots the person voted for as President, and in distinct
+ballots the person voted for as Vice-President, and they shall make
+distinct lists of all persons voted for as President, and of all
+persons voted for as Vice-President, and of the number of votes for
+each, which lists they shall sign and certify, and transmit sealed to
+the seat of the government of the United States, directed to the
+President of the Senate;--The President of the Senate shall, in
+presence of the Senate and House of Representatives, open all the
+certificates and the votes shall then be counted;--The person having
+the greatest number of votes for President, shall be the President, if
+such number be a majority of the whole number of Electors appointed;
+and if no person have such majority, then from the persons having the
+highest numbers not exceeding three on the list of those voted for as
+President, the House of Representatives shall choose immediately, by
+ballot, the President. But in choosing the President, the votes shall
+be taken by states, the representation from each state having one
+vote; a quorum for this purpose shall consist of a member or members
+from two-thirds of the states, and a majority of all the states shall
+be necessary to a choice. And if the House of Representatives shall
+not choose a President whenever the right of choice shall devolve upon
+them, before the fourth day of March next following, then the
+Vice-President shall act as President, as in the case of the death or
+other constitutional disability of the President.--The person having
+the greatest number of votes as Vice-President, shall be the
+Vice-President, if such number be a majority of the whole number of
+Electors appointed, and if no person have a majority, then from the
+two highest numbers on the list, the Senate shall choose the
+Vice-President; a quorum for the purpose shall consist of two-thirds
+of the whole number of Senators, and a majority of the whole number
+shall be necessary to a choice. But no person constitutionally
+ineligible to the office of President shall be eligible to that of
+Vice-President of the United States.
+
+FOOTNOTE:
+
+[465] Although this work does not embrace the history of the Amendments,
+they are printed here in connection with the Constitution, for the
+convenience of the reader.
+
+
+
+
+INDEX.
+
+
+ A.
+
+ _Acquisition_, national spirit of, reflections on, II. 312.
+
+ ADAMS, JOHN, delegate to first Continental Congress, I. 13.
+ On Washington's appointment as commander-in-chief, 42.
+ One of the committee to prepare Declaration of Independence, 50.
+ His account of the Declaration, 82.
+ First minister to Great Britain, 257.
+ Answer to his complaints about the treaty, 257.
+ Instructed to negotiate treaty with the Netherlands, 280.
+ One of the commissioners to procure commercial treaties, 287.
+ Views of, respecting taxation of slaves, II. 159.
+ Practice of, respecting cabinet, 409.
+
+ ADAMS, SAMUEL, delegate to first Continental Congress, I. 13.
+ Reserve of, respecting Constitution, II. 533.
+ Disapproves of Constitution, 533.
+ Character of, 534.
+ Position of, in convention of Massachusetts, 534.
+ In favor of Hancock's amendments to Constitution, 538.
+
+ ADAMS, captain in the Revolutionary naval force, I. 74.
+
+ _Address_ of the Colonies to the people of Great Britain, I. 23.
+
+ _Admiralty Jurisdiction_, criminal, II. 330.
+ Of courts of United States, 445.
+ Under Confederation, 445.
+
+ _Adoption_ of Constitution, mode of, recommended, II. 372.
+
+ _Albany_, convention of Colonies at, in 1753-54, I. 8.
+
+ _Alexandria_, meeting of commissioners at, from Virginia and Maryland,
+ I. 341.
+
+ _Alexandria Commissioners_, visit General Washington, I. 425.
+ Report of, received in Virginia legislature, 426.
+
+ _Aliens_, rights to be conceded to, in certain treaties, I. 280.
+ See _Foreigners_.
+
+ _Allegiance_ of people of the Colonies, transferred, I. 52.
+
+ _Alliance._ See _Treaty of Alliance_.
+
+ _Ambassadors_, proposed appointment of, by Senate, II. 223, 410;
+ by President, 234.
+ Received by President, 415.
+ To be nominated by President, 418.
+ Jurisdiction of cases affecting, 444.
+
+ _Amendment_ of Constitution, II. 84.
+ Provision for, adopted without debate, 177.
+ And revolution, distinction between, 473.
+
+ _Amendments_ of Constitution, when to be proposed by Congress, II.
+ 268.
+ How to be proposed and adopted, 473.
+ How ratified, 477.
+ Power to make, limited, 477.
+ States at liberty to propose, 486.
+ Proposed by Hancock, 537;
+ by Massachusetts, classified, 539;
+ by South Carolina, 548;
+ by Patrick Henry, 580;
+ by Virginia, 581;
+ by New York, 587, 588;
+ by North Carolina, 597.
+ Refused in Maryland convention, 543.
+ Proposed, not made conditions of adoption, 551.
+
+ _Amendments_ of Articles of Confederation, how made, II. 84, 473, 481.
+
+ _America_, natural advantages of, for commercial pursuits, II. 309.
+ Variety of climate and products of, 309.
+
+ _American Constitutions_, character of, I. 261.
+
+ _American Feeling_, Washington's efforts to create, I. 110.
+
+ _American People_ perceive the insufficiency of State governments, I.
+ 114.
+ Early familiarity of, with the principles of government, 117.
+ Perceive the necessity of a union, 121.
+ See _People of America_.
+
+ _American Revolution_, commencement
+ of, I. 3.
+ Attempt to alter charter governments, a principal cause of, 6.
+ Found local legislatures in all the Colonies, 7.
+ Fundamental principle established by, 379.
+ Object and effects of, II. 196.
+ Policy which led to, real cause of, 238.
+ Effect of, on views of people of United States, relating to
+ government, 238.
+
+ _Annapolis_, general commercial convention at, I. 326, 340, 350.
+ Recommends general convention to revise the federal system, 349.
+ Recommendation, how received, 351.
+ See HAMILTON and MADISON.
+
+ _Annapolis Commissioners_, report of, acted upon in Congress, I. 355.
+
+ _Anti-Federalists_, plan of, to postpone action of Virginia on
+ Constitution, II. 568.
+ See _Federalists_.
+
+ _Appropriation Bills_, provision concerning, objected to, II. 147.
+ See _Money Bills_ and _Revenue Bills_.
+
+ _Arms of the United States_, when adopted, I. 151.
+
+ ARMSTRONG, JOHN, wrote the Newburgh Addresses, I. 168.
+
+ _Army_, power of Congress to raise and support, II. 333.
+ Appropriation of money for support of, 333.
+ Power of Congress to make rules for, 334.
+ Standing, repugnant to American feelings, 336.
+ Not to be kept by States in time of peace, 371.
+ President commander-in-chief of, 413.
+ Power of President to employ, 413.
+
+ _Army of the Revolution_, first suggested, I. 31.
+ How first raised, 32.
+ State of, when Washington arrived at Cambridge, 55.
+ How constituted, 58.
+ Short enlistments in, how accounted for, 60.
+ Committee of Congress sent to examine, 60.
+ Discontents in, 79, 158, 186.
+ History of, after the evacuation of Boston, 91.
+ Reorganized, 91, 92.
+ Defects in organization of, 93.
+ Officers of, how appointed, 93;
+ how treated in 1776, 94.
+ Bad construction of, 94, 96.
+ Third effort of Washington to reorganize, 109.
+ Embarrassments and difficulties attending, 110.
+ State of, in April, 1777, 111;
+ in May, 1782, 158.
+
+ _Arrest_, privilege from, II. 263.
+
+ _Arsenals_, authority of Congress over, II. 340.
+
+ _Articles of Confederation_, I. 509.
+ Reported in Congress, and recommended to the States, 53, 104, 113.
+ Adoption of, by the States, 124.
+ Amendments to, proposed by the States, 128;
+ by New Jersey, for regulation of commerce, 129.
+ Chief obstacle to the completion of, 131.
+ States urged to accede to, 134.
+ Ratified by New Jersey, 135;
+ by Delaware, 135;
+ by Maryland, 136.
+ Completion of, announced, 137.
+ Established by patriotic sacrifices, 139.
+ Outline of, 142.
+ Construction of third article of, 265.
+ Circular letter of Congress, recommending adoption of, 491.
+ Representation of New Jersey respecting, 493.
+ Act of New Jersey accepting, 497.
+ Resolves of Delaware respecting, 498.
+ Action of Maryland on, 501;
+ of New York on, 505.
+ Amendment of, at first contemplated, II. 16.
+ How altered, 84, 180, 481.
+ Citizenship under, 206.
+ Effort to include in, power over Western Territory, 341.
+ Admission of new States under, 345.
+ On what terms ratified by smaller States, 346.
+ Restraints imposed on States by, 363.
+ Inter-state privileges under, 447.
+
+ _Assemblies_ in Provincial governments, how constituted, I. 4.
+
+ _Assembling_, one of the common law rights, I. 23.
+
+ _Association_, drawn up by House of Burgesses in Virginia, I. 12.
+ For non-importation, &c., how carried out by colonists, 24.
+
+ _Attainder, Bills of_, defined, II. 360.
+ Congress prohibited to pass, 360.
+ States prohibited to pass, 368.
+
+ _Attestation_ to Constitution, form of, II. 485.
+
+
+ B.
+
+ BALDWIN, ABRAHAM, model of Senate suggested by, II. 139.
+ Vote and views of, respecting representation in Senate, 142.
+
+ _Baltimore_, public rejoicings in, in honor of Constitution, II. 543.
+
+ BARNWELL, ROBERT, in favor of Constitution, II. 510.
+ Arguments of, in convention of South Carolina, 548.
+
+ BELKNAP, Dr., on slavery in Massachusetts, II. 454.
+
+ _Bill of Rights_, want of, a strong argument with some against
+ Constitution, II. 498.
+ James Wilson's views respecting, 522.
+ States equally divided on question of, in Convention, 523.
+ Considered essential by Patrick Henry, 554.
+ Proposed by Virginia, 581.
+
+ _Bills of Credit_, power to emit, prohibited to States, II. 328, 364.
+ Meaning of, 329.
+
+ _Boston_, occupied by royal troops in 1774-75, I. 27.
+ Invested by army under General Ward, in 1775, 32.
+ Reception of Constitution by people of, II. 501.
+ Rejoicings in, in honor of Constitution, 540.
+
+ _Boundary_, Southern, fixed by the Treaty of Peace, I. 312.
+ Questions of, proposed to be determined by Senate, II. 223, 231;
+ plan respecting, 235.
+ Determination of, a judicial question, 232.
+ See _Western Territory_, _Lands_, and _Northwestern Territory_.
+
+ _Bounties_ offered for enlistment in 1776, I. 93.
+ Additional, offered by States, 95;
+ effect of, 110.
+
+ BOWDOIN, JAMES, delegate to first Continental Congress, I. 13.
+ Governor of Massachusetts, 270.
+ Suppresses Shays's rebellion, 270.
+ Message of, suggesting a general convention, 336.
+
+ _Brandywine_, battle of the, force engaged in, I. 113.
+
+ _Bribery_, by executive, dangers of, II. 242.
+
+ _British Colonies_, legislatures of, divided into two branches, II.
+ 132.
+
+ BROUGHTON, NICHOLAS, commander of the Hannah, I. 74.
+
+ BUTLER, PIERCE, in favor of the Constitution, II. 510.
+
+
+ C.
+
+ _Cabinet_, functions of, II. 407.
+ Views respecting, in Convention, 408.
+ President may require opinions of, 408.
+ Constitutional character of, 409.
+ Practice of first three Presidents respecting, 409.
+
+ _Captures_, power of Congress to regulate, II. 330.
+
+ _Capitation Tax_, report of committee of detail respecting, II. 290.
+ Provision respecting, adopted, 304.
+
+ CARROLL, CHARLES, proposition of, for asserting right of United States
+ to vacant lands, II. 353, 355.
+
+ _Cases_ arising under Constitution, &c., meaning of, II. 430.
+
+ _Census_, periodical, proposed by Williamson of North Carolina, II.
+ 153.
+ Vote respecting, 153.
+ See _Federal Census_.
+
+ _Cessions_ of Northwestern Territory, II. 342.
+ Of land by States to United States, 356.
+ See _Western_ and _Northwestern Territory_.
+
+ _Charleston_, rejoicings in, on adoption of Constitution, II. 548.
+
+ _Charter_, of William and Mary to Massachusetts, I. 5;
+ attempt to alter, 6.
+ Inviolability of, 23.
+ How distinguished from constitution, II. 7.
+
+ _Charter Governments_, form and character of, I. 5.
+
+ CHASE, SAMUEL, views of, respecting taxation of slaves, II. 159.
+
+ _Checks_ of one department on another, II. 301.
+
+ _Citizenship_, as qualification of national officers, II. 186, 188,
+ 204;
+ of senators, 223.
+ State rules respecting, unlike, 199.
+ General privileges of, under Confederation, 206, 448;
+ under Constitution, 448.
+ See _Naturalization_.
+
+ CLARKE, GEORGE ROGERS, General, proceedings of, in Kentucky, I. 322.
+
+ CLINTON, GEORGE, message of, as Governor of New York, on revenue
+ system of 1783, I. 359.
+ Head of party in New York opposed to Constitution, II. 502.
+
+ _Coinage_ of the United States, origin of, I. 443.
+
+ COIT, captain in the Revolutionary naval force, I. 74.
+
+ _Colonies_, thirteen English, I. 3.
+ Ante-Revolutionary governments of, 3.
+ Form a union, 3.
+ No union of, before the Revolution, 7.
+ Common grievances of, 9.
+ People of, how descended, 9.
+ Rights of, how to be determined, 16;
+ when and how stated, 20;
+ declaration of, 22;
+ what included in, 22;
+ how to be enforced, 23.
+ Trade of, how far right to regulate in Parliament, 20.
+ Reduction of, to submission, great preparations for, 38.
+ Trade with, prohibited by Parliament, December, 1775, 38.
+ Change of, into States, 116.
+ Constitutional power of, II. 179.
+
+ _Commerce_, of the United States, I. 276;
+ capacity of, at the close of the war, 284.
+ Regulation of, a leading object of Constitutional Convention, II. 12;
+ became an exigency of the Union, 13;
+ how provided for, by Virginia plan, 90;
+ if universal, must include slave-trade, 285;
+ report of committee of detail respecting, 289;
+ generally conceded to general government as necessary, 290;
+ views of Southern statesmen respecting, 290;
+ by Congress, beneficial to North and South, 291;
+ a power conceded by South to North, 291;
+ indivisible, 370;
+ reluctance of South Carolina to concede, 546.
+ Want of power over, in Confederation, 279.
+ Interest of, in different States, not identical, 291, 299.
+ Powers of government over, influence of, 311.
+ Necessities of, basis of Constitution, 312.
+ See _Regulation of Commerce_.
+
+ _Commercial Convention._
+ See _Annapolis_ and _Virginia_.
+
+ _Commercial Power_ asked for by Congress, I. 285.
+ Action of the States respecting, 286.
+
+ _Commercial Treaties_, want of, displayed, I. 277.
+ Existing at the peace, 279.
+ How far the Confederation competent to make, 279.
+ Why not made with England, 282.
+ Congress endeavors to get power to make, 285.
+ Attempt to negotiate without power, 286.
+ States refuse the power to make, 287.
+ Fruitless efforts of the commissioners to negotiate, 289.
+
+ _Commission._
+ See _Commercial Treaties_ and JOHN ADAMS.
+
+ _Committee of Congress_ sent to confer with Washington, I. 60, 93.
+
+ _Committee of the States_ under the Confederation, I. 146.
+
+ _Committees of Correspondence_ recommended by Virginia, I. 11.
+ Agency of, 12.
+
+ _Common Law_, one of the rights of the Colonies, I. 23.
+ And equity, distinction between, preserved by Constitution, II. 425.
+ Basis of State jurisprudence, 425.
+
+ _Commutation._
+ See _Half-Pay_.
+
+ _Compromises_ between national and federal systems, II. 102, 104.
+ Lie at the basis of the Constitution, 129.
+ Respecting formation of Congress, 141, 167, 195;
+ representation in Congress, 146.
+ Respecting slavery, 161;
+ how to be effected, 163;
+ reflections on, 309.
+ Committee of, proposed by Gouverneur Morris, 201.
+ Respecting Senate, as affected by money bills, 217;
+ choice of executive, 220.
+ How to be studied, 220.
+ Respecting slave-trade and navigation act, 302.
+ If not made, necessary consequences, 315.
+
+ _Confederation_, office of, in American history, I. 140, 149.
+ Revenues of, 147.
+ Defects of, 148, 155; II. 11, 14, 15, 35, 60, 79, 376.
+ Restraints imposed by, upon the States, I. 149.
+ Legal commencement of, 149.
+ Operation of, to the close of the war, 181.
+ Power of, to maintain an army and navy in peace, 215.
+ Analyzed by Hamilton, 221.
+ Principle of, adhered to, 225.
+ Summary of its operations, 228.
+ Incapacity of, to protect the State governments, 260.
+ Had no strict power to hold or manage public lands, 291.
+ Decay and failure of, 328; II. 13.
+ Fatal defect in the principle of the, I. 371.
+ Nature of, II. 16.
+ Had no power of compulsion, 16, 376.
+ Powers of, 27.
+ Principle of, 33.
+ Rule of suffrage under, 42.
+ Had no executive or judiciary, 60.
+ Laws of, to be executed by State tribunals, 61.
+ Compared with Constitution, 90.
+ Articles of, framed in 1776, 158.
+ Assessments on States under, 160.
+ Still in force while Convention in session, 178.
+ Relation of, to States, 179.
+ States opposed to entering, except on full federal equality, 227.
+ Had no seat of government, 268.
+ Want of power in, over commerce, 279;
+ over revenues, 279.
+ Engagements of, proposal to assume, 321.
+ Want of power in, to admit new States, 349.
+ Rule of, respecting making of treaties, 376, 416, 441.
+ Nature and objects of, 448.
+ How amended, 473.
+ Chief cause of failure of, 573.
+ See _Articles of Confederation_ and _Congress_.
+
+ _Confiscations_, provided against, by the Treaty of Peace, I. 250.
+ Strict right of, belonged to the Union, 251.
+
+ _Congress_ of the Revolution, leaves Philadelphia after the battle of
+ the Brandywine, I. 113;
+ assembles at Lancaster and Yorktown, 113.
+ Of the Confederation, first meeting of, 125;
+ structure and form of, 143; II. 133, 226;
+ powers of, I. 144;
+ restrictions on powers of, 146;
+ attendance diminished after the peace, 189;
+ driven from Philadelphia by a mutiny, 220;
+ decline of, 226;
+ meeting of, in 1783, 235;
+ thinly attended, 235;
+ appointment and attendance of delegates, 237, 239;
+ perpetually in session, 238;
+ public objects to be accomplished by, 239;
+ condition of, in 1785, 339;
+ unfitted to revise the federal system, 364;
+ had but one chamber, II. 132;
+ resolution for continuance of, 176;
+ method of voting in, 226;
+ members of, chosen annually, and liable to recall, 241;
+ appointment of officers by, complaints respecting, 248;
+ met where, 268;
+ presence of, in New York, benefits resulting from, 273;
+ attempts of, to procure cessions from States, 342;
+ resolve of, for regulation of Northwest Territory, 342;
+ power of, to admit new States, 344;
+ transmission of Constitution to, 486;
+ action of, on Constitution, 499.
+ Old, authority of, continued till new adopted, 86.
+ Under Virginia plan, to have two houses, 101.
+ Under New Jersey plan, to be one body, 101.
+ Present constitution of, by whom first suggested, 138;
+ compromise respecting, 141, 167.
+ Power of, to legislate for general interests of Union, 170;
+ to negative State laws, 170;
+ respecting elections to, 257;
+ in general, 279;
+ over taxes, duties, &c., 322;
+ to pay debts of United States, 322;
+ to provide for common defence, &c., 322;
+ over places purchased for forts, &c., 340;
+ over Territories, different views concerning, 340, 358;
+ limited, 340;
+ over soil of national domain, 351;
+ proposed, over property of United States, 355;
+ restraints on, 359;
+ to establish inferior tribunals, 423, 427.
+ Acts of, supreme law, 170;
+ how passed, 264.
+ Proposal that executive be chosen by, 171.
+ Members of, qualifications of, 194;
+ ineligibility of, to office, 250;
+ time, &c. of electing, left to States, 258;
+ pay of, proceedings in Convention respecting, 258;
+ objections to States paying, 259;
+ privileged from arrest, 263;
+ punishment and expulsion of, 263;
+ not to be questioned elsewhere for speech or debate, 263.
+ Importance of early legislation of, 208.
+ Proposed to be modelled after Congress of Confederation, 226.
+ Admission of members of Cabinet, &c. to, question respecting, 253.
+ Each house of, to be judge of elections, &c. of its own members, 262;
+ to determine its own rules of proceeding, 263;
+ to keep journal, 263.
+ Adjournment of, 275, 419.
+ Exclusive sovereign of District of Columbia, 277.
+ Time of meeting of, 277.
+ To make all necessary and proper laws for execution of powers, 338.
+ To declare war, 413.
+ To authorize calling out of militia, 413.
+ Special relations of President to, 419.
+ To prescribe mode of proof and effect of State records, &c., 449.
+ To propose amendments to Constitution, 477.
+ To call Convention to amend Constitution, when, 477.
+
+ _Connecticut_, a charter government, I. 5.
+ Governor, council, and representatives always chosen by the people,
+ 6.
+ Had five representatives in first House, 149.
+ Cedes claims to Western territory, 300, 344.
+ Appoints and instructs delegates to the Convention, 369.
+ Opposed to Convention, II. 23;
+ to executive holding office during "good behavior," 173;
+ to property qualification for office, 189;
+ to nine years' citizenship as qualification of Senator, 224;
+ to taxing exports, 296;
+ to restricting President to stated salary, 407.
+ In favor of equality of suffrage in both branches of Congress, 122,
+ 138;
+ of equal representation of States in Senate, 141, 148, 165;
+ of census of free inhabitants, 153;
+ of referring Constitution to State legislatures, 184;
+ of each State having one vote in Senate, 227.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 216, 218;
+ respecting eligibility of members of Congress to office, 251;
+ respecting slave-trade, 305.
+ Ratification of Constitution by, 515.
+ Convention of, 527;
+ debates in, mostly lost, 529.
+
+ _Connecticut Reservation_, note on, I. 300.
+
+ _Constitution_, how framed, II. 3.
+ Means of peaceful coercion a leading object of, 62.
+ An abridgment of State powers in some respects, 73.
+ Republican government guaranteed to States by, 80, 458, 468.
+ Capacity of, of amendment, 84.
+ Why submitted to people for ratification, 84.
+ As reported to Convention, 86.
+ Different plans of, proposed in Convention, 89.
+ Compared with Confederation, 90.
+ Compromise of, between national and federal system, 102.
+ Based on compromises, 129.
+ Possibility of failure to create, reflections on, 142.
+ Framers of, problem before, 155;
+ position and purposes of, 178;
+ had been observers of Parliamentary corruption, 242.
+ State and national officers sworn to support, 177, 372.
+ Ratification of, 177.
+ Dissatisfaction with, in different States, 182.
+ How differs from league, 184.
+ Proposal to submit, to Congress of Confederation, 185.
+ Growth of, important to be pursued through entire proceedings, 193.
+ Divided into twenty-three articles by committee's report, 194.
+ Interest in Europe respecting, 196.
+ Should define eligibility to national offices, 199.
+ Purposes of, respecting immigrants, 209.
+ Analogy of, to British Constitution, 214.
+ Provisions of, as originally proposed, 230.
+ Benefits of, to North and South, 303.
+ Conception of, gradually attained, 311.
+ Hopes of framers of, exceeded, 311.
+ Sprung from necessities of commerce, 312.
+ Objections to, of favoring slavery, superficial, 313.
+ Proper mode of judging, 313.
+ Rights guaranteed to States by, 314.
+ Beneficent operation of, on condition of slaves, 315.
+ Provision of, respecting power of Congress over Territories, 355;
+ purpose of, 355;
+ explanation of, 357.
+ Adoption of, 372.
+ Preamble to, 372.
+ Supreme law, 374.
+ Binding on all judicial officers, 374.
+ Complex character of, 379.
+ Workings of, not impaired by territorial growth, 381.
+ Success of, when other systems had failed, cause of, 384.
+ Proposed by Governor Randolph, 410.
+ Cases arising under, meaning of, 430.
+ Confers few special powers on general government, 432.
+ Restrictions laid on States by, 432.
+ Powers of national and State governments determined by, 436.
+ Designed to form a more perfect union, 448.
+ Inter-state privileges under, 448.
+ Amendments of, how proposed and adopted, 473.
+ Oath to support, by whom to be taken, 478.
+ Religious test never to be required under, 478.
+ Serious questions respecting mode of establishing, 479.
+ Effect of ratification of, by only part of States, 484.
+ Formal assent of States to, in Convention, 485.
+ Form of attestation to, 485.
+ Refusal of three delegates to sign, 485.
+ Presentation of, to Congress, 486.
+ Probable consequences of rejection of, 487.
+ Issue presented by, to people of United States, 487.
+ Attempt to introduce monarchy averted by, 494.
+ Published September 19th, 1787, 495.
+ Reception of, among the people, 495.
+ Friends and opponents of, classified, 495.
+ Advocates of, why styled Federalists, 496.
+ Adopted by intelligent majority in each State, 499.
+ Reception of, by Congress, 499.
+ Attempt in Congress to arrest or alter, 499.
+ Real crisis of, 515.
+ General and special opposition to, 515.
+ People predisposed to adopt, 516.
+ First ratified by Delaware, 518.
+ Right of people to change at pleasure, 522.
+ Bestows only a part of power of people, 522.
+ Ratification of, rejoicings in honor of, 540.
+ Anxiety respecting State action on, 544.
+ Amendments of, proposed by South Carolina, 548.
+ Opposition to, in New York, 572.
+ Adoption of, an event unparalleled in history, 584.
+ Opponents of, concessions to, justified, 590.
+
+ _Constitutions_, written, how far existed before the Revolution, I. 4.
+ Of the States, origin and character of, 261.
+
+ _Constitutional Convention_, first suggestion of, I. 206.
+ First suggested by Massachusetts, 336.
+ Suggestion of Massachusetts respecting, not adopted, 337;
+ withdrawn, 338;
+ objections of her delegates in Congress to, 339.
+ Urged by various public bodies, 349.
+ Considered and adopted by Congress, 350.
+ Early recommendations of, 350.
+ Recommended by the Annapolis Commissioners, 350;
+ by Congress, 361.
+ Difficulties of its position, 367.
+ Powers of, not strictly defined, 367.
+ Opinions of leading statesmen respecting, 373.
+ Assembles at Philadelphia, 374.
+ Novelty and peculiarity of its task, 374.
+ List of members of, 516.
+ Great object of, II. 5.
+ Members of, character of, 17;
+ different views of, 17;
+ greatness of, 144.
+ Authority and powers of, uncertain, 18.
+ All States but Rhode Island represented in, 23.
+ Presence of all States in, not required, 26.
+ Had no power to enact or establish, 29.
+ Character of, 29.
+ Proceedings of, how to be studied, 29;
+ secrecy of, 491;
+ singular rumors respecting, 492.
+ Supposed want of authority in, to propose fundamental changes, 91.
+ Report of committee of the whole made to, June 19th, 129.
+ Struggle in, respecting form of Constitution, 129.
+ Disruption of, imminent at one time, 142.
+ Possible consequences of failure of, 143.
+ Resolution recommending, 185.
+ Instructions to delegates to, 185.
+ Causes of success of, 475.
+ A second, inexpedient, 475, 589.
+ Dissolved September 14th, 1787, 491.
+
+ _Constitutional Law, American_, originates in The Federalist, I. 417.
+ Questions of, how determined, II. 375.
+
+ _Constitutionality_ of laws, questions of, how settled, II. 433.
+
+ _Construction_, questions of, how far considered, II. 4.
+
+ _Consuls_, to be nominated by President, I. 418.
+ Cases affecting, jurisdiction of, 444.
+
+ _Continental Congress_, formation of first, I. 3.
+ Advised by Franklin in 1773, 10.
+ First suggestion of, 11.
+ Recommended by Virginia, 11.
+ Appointed for September, 1774, 12.
+ Declared expedient by Massachusetts, 12.
+ First, assembled and organized, 13;
+ delegates to, how appointed, 13;
+ how composed, 14;
+ method of voting in, 15;
+ relation of, to the people of the several Colonies, 15;
+ purpose of, not revolutionary, 16;
+ instructions to delegates in, 18;
+ how it sought redress, 18, 19;
+ revolutionary tendency of, 19;
+ assumed guardianship of rights and liberties, 19;
+ proceedings of, in stating rights, 20;
+ duration of, 24;
+ adjournment of, 25;
+ recommends another Congress, 25;
+ where held from 1774 to 1783, 226;
+ each Colony had one vote in, II. 227.
+ Second, election of delegates to, by Massachusetts Provincial
+ Congress, I. 27;
+ assembles at Philadelphia, 28;
+ delegates to, how appointed, 29;
+ instructions to delegates to, 29;
+ rule of voting in, 29;
+ powers assumed by, 31.
+ Becomes a permanent body, 30.
+ Petition of, to the King, 38.
+ Dissolves the allegiance of the Colonies to the King, 38.
+ Becomes a revolutionary government, 39.
+ Nature of the government by, 54.
+ Situation of, at the end of 1776, 100.
+ Change in the members of, in 1777, 104.
+ Credentials of members of, in 1776, 105.
+ Constitution of, II. 42.
+
+ _Continental Currency_ first issued, I. 34.
+
+ _Contracts_, restraint on legislative violation of, origin of, II.
+ 361, 365;
+ obligation of, impaired by State law, redress in case of, 433.
+ See _Obligation of Contracts_.
+
+ _Contribution_, rule of, attempted to be changed, I. 210.
+
+ _Convention_, at Williamsburg, I. 12.
+ At Hartford, in 1779, 205.
+
+ _Convention of all the States._ See _Constitutional Convention_.
+
+ _Copyrights_, State legislation concerning, II. 339.
+ Power over, surrendered to Congress, 339.
+
+ CORNWALLIS, enters Newark, I. 98.
+ Effect of capture of, 157.
+
+ _Council_, vacancies in, how filled in provincial governments, I. 4.
+ Suspension of, from office in provincial governments, 4.
+ Part of the provincial governments, 4;
+ charter governments, 5.
+ How chosen, 5.
+
+ _Council of Revision_, proposed, dangers of, II. 435;
+ much favored in Convention, 438;
+ purpose of, 438.
+
+ _Counterfeiting_, power of Congress to define and punish, II. 332.
+
+ _Courts_, inferior, Congress may establish, II. 330, 423.
+
+ _Courts of United States_, jurisdiction of, over persons of certain
+ character, II. 441.
+ Admiralty and maritime jurisdiction of, 445.
+
+ _Creditors_, rights of, secured by the Treaty of Peace, I. 250.
+
+ _Crimes_, trial for, to be in State where committed, II. 424;
+ to be by jury, 424.
+
+ _Crown_, the source of political power in the Colonies, I. 3.
+ Powers of, in provincial governments, 4.
+
+ _Currency_ under Revolutionary government, I. 78.
+
+ CUSHING, THOMAS, suggests Continental Congress, I. 11.
+ Delegate to first Continental Congress, 13.
+
+
+ D.
+
+ DANE, NATHAN, author of Ordinance of 1787, II. 344, 365.
+
+ _Debts_ due to English merchants at the peace, I. 250.
+ Action of Congress respecting, 258.
+ Of States, proposition to assume, II. 319.
+ Of United States, provision for payment of, 320;
+ power of Congress to pay, 322.
+
+ _Debt of the United States_, in 1783, I. 172.
+ Foreign and domestic, where held, 178.
+ National character of, 182.
+ Necessity of revenue power to discharge, 183.
+ Amount of, at the close of the war, 184.
+
+ _Declaration of Independence_, authorship of, I. 81.
+ Effect of, upon the country, 89;
+ upon Congress, 90.
+ See _Independence_.
+
+ _Declaration of Rights_, by first Continental Congress, I. 22.
+
+ _Delaware_, a proprietary government, I. 5.
+ Constitution of, formed, 122.
+ Resists the claim of great States to Western lands, 131.
+ Ratifies the Confederation, 135.
+ Action of, commended, 138.
+ Resolves of, respecting the Articles of Confederation, 498.
+ Opposed to change in rule of suffrage, II. 35;
+ to division of legislature, 133;
+ to census of free inhabitants, 153;
+ to striking out wealth from rule of representation, 164;
+ to referring Constitution to people, 185;
+ to property qualification for office, 189;
+ to restricting President to stated salary, 407.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 216, 218;
+ respecting slave-trade, 305;
+ respecting admission of States, 354.
+ In favor of equality of suffrage in House of Representatives, 138;
+ of equality of States in Senate, 165;
+ of executive holding office during "good behavior," 173;
+ of referring Constitution to State legislatures, 184;
+ of each State having one vote in Senate, 227;
+ of taxing exports, 296.
+ Had one representative in first House, 149.
+ Ratification of Constitution by, 515, 518.
+ Patriotism of, 518.
+ Enlightened by discussions on Constitution in Pennsylvania
+ convention, 518.
+
+ _Delaware River_, Washington crosses the, I. 99.
+
+ _Delegate_, Territorial, position of, in Congress, II. 256.
+
+ _Democracy_, did not originate in America, II. 7.
+ Principle of, how modified in America, 7.
+
+ _Departments of Government_, division of, I. 118.
+
+ DICKINSON, JOHN, in favor of tax on exports, II. 284.
+
+ _Dictatorship._ See _Washington_.
+
+ _District of Columbia_, under exclusive government of Congress, II.
+ 277.
+
+ _Dock-Yards_, authority of Congress over, II. 340.
+
+ DORSET, Duke of, reply of, to the American Commissioners, I. 289.
+
+ DUANE, JAMES, efforts of, to procure adoption of Constitution by New
+ York, II. 585.
+
+ _Duties_, power to levy, asked for by Congress in 1781, I. 173;
+ not given, 174.
+ Power of Congress to impose, II. 322.
+ To be uniform throughout United States, 325.
+ What may be laid by States, 368.
+ Laid by States, net produce of, how applied, 368;
+ subject to revision of Congress, 368.
+ Payment of, how compelled, 433.
+
+
+ E.
+
+ _Eastern States_, course of, respecting the navigation of the
+ Mississippi, I. 315.
+
+ _Elections_, frequency of, favored, II. 241.
+
+ _Elective Franchise_, could not be confined to native citizens, II.
+ 198.
+
+ _Electors_, of President, advantages of, II. 175;
+ proposed in committee, 220;
+ number of, 235, 389;
+ embarrassments respecting choice of, 388;
+ mode of election by, 390;
+ case of no choice by, 390;
+ required to return votes for two persons, 393;
+ how chosen, 398;
+ method of proceeding, 399;
+ new appointment of, when, 403.
+ Property as a qualification of, 187.
+ Of representatives in Congress, qualification of, 194, 200.
+
+ ELLSWORTH, OLIVER, compromise respecting Congress proposed by, II.
+ 141.
+ Opposed to tax on exports, 294.
+ Influence and arguments of, in Connecticut convention, 528.
+
+ _Emigration_, from Europe, a subject of solicitude, II. 195.
+
+ _England_, government of, not a model for the Constitution, I. 391.
+
+ _English Language_ spoken by the colonists, I. 3, 9.
+
+ _English Laws_ inherited by the colonists, I. 9.
+
+ _Enlistments._ See _Army_ and _Bounties_.
+
+ _Equity_ and common law, distinction between, preserved by
+ Constitution, II. 425.
+ Jurisdiction under Constitution important, 425.
+
+ _Europe_, politics of, as affecting America, II. 80.
+
+ _Excises_, power of Congress to collect, II. 322.
+ To be uniform throughout United States, 325.
+
+ _Executive_, methods proposed for choice of, II. 59, 171.
+ Duration of office of, under Hamilton's plan, 100.
+ Duration of office of, 171;
+ proposed to be during "good behavior," 173.
+ Re-eligibility of, different views respecting, 172, 175.
+ Choice of, directly by people, difficulties attending, 174.
+ Whether should be subject to impeachment, 175.
+ Choice of, conflict of opinions respecting, 220;
+ proposed to be by Congress for seven years, 220;
+ by electors, 220;
+ by Senate, in certain events, 221;
+ by House of Representatives, 222;
+ by concurrent vote of Senate and House of Representatives, 223,
+ 230;
+ proposed negative of Senate in, 232.
+ Jealousy of, 232.
+ See _President_ and _Vice-President_.
+
+ _Executive Department_, proposed constitution and powers of, II. 56,
+ 170.
+ Relation of, to legislature, 57, 247.
+ Unknown to Confederation, 60.
+ Powers of, defined by constitutions in America, 72.
+ Influence to be allowed to, over legislative, 244.
+ Action of, requires discretion, 246.
+
+ "_Executive Power_" vested in President, meaning of, 412.
+
+ _Exports_, taxation of, Pinckney's proposition concerning, II. 189;
+ refusal of South Carolina to submit to, 281, 285;
+ an undoubted function of government, 282;
+ consequences of denial of, 282;
+ when only beneficial, 282;
+ question of, as affected by variety, 283;
+ members of Convention in favor of, 284;
+ report of committee of detail respecting, 290;
+ great embarrassments respecting, 294;
+ arguments for and against, 294, 297;
+ opposition to, not confined to South, 294;
+ by States, an oppressive power, 295;
+ finally prohibited, 295;
+ for what reasons opposed in Convention, 297;
+ by States, arguments for and against, 368.
+
+ _Ex Post Facto Laws_, definition of, II. 360, 367.
+ Passage of, prohibited to Congress, 360;
+ to States, 368.
+
+
+ F.
+
+ _Faith and Credit_, to be given to certain acts, &c., I. 143.
+
+ _Falmouth_ (now Portland), burnt, I. 38, 74.
+
+ _Faneuil Hall_, meeting at, respecting a national regulation of
+ commerce, I. 336.
+
+ _Federal Census_, origin of its rule of three fifths, I. 213.
+
+ _Federal Government_, how distinguished from "national," II. 33.
+ By what States preferred, 117.
+ Arguments in favor of, 124;
+ theoretically sound, 126.
+ Had proved a failure, 127.
+
+ _Federal Town._ See _Congress_ and _Seat of Government_.
+
+ _Federalist_, original meaning of, II. 496.
+ Changes in meaning of term, 497.
+ Miniature ship so called, 543.
+
+ _Federalists_ of Massachusetts, enthusiasm kindled by, II. 541.
+ Of New Hampshire, action of, 541.
+ Of New York, justified by Washington, 590;
+ complaints against, 591.
+
+ _Federalist, The_, published, I. 409.
+ Character and influence of, 417.
+ History of the editions of, 418.
+ Remark of, respecting Confederation, II. 61.
+ Purpose of publication of, 503.
+ When first issued, 503.
+ Authors of, 503.
+
+ _Felony_, various meanings of, II. 331.
+ Power of Congress to define and punish, 331.
+
+ _Finances_, must rest on some source of compulsory revenue, I. 183.
+ See _Debts_, _Revenue_, and _Duties_.
+
+ _Fisheries_, great value of, II. 310.
+
+ _Foreigners_, cases affecting, jurisdiction in, II. 443.
+ Cannot demand sanctuary as matter of right, 457.
+
+ _Foreign Influence_, jealousy of, II. 196, 204, 223.
+ Necessity of counteracting, 211.
+
+ _Forts_, authority of Congress over, II. 340.
+
+ _Framers of the Constitution_, difficulties and perplexities of their
+ task, I. 380.
+ Their qualifications, &c., 386.
+ Their success, 393.
+
+ _France_, debts of the United States to, I. 172.
+ Contracts with the king of, 177.
+ Relations of the United States to, 178.
+
+ FRANKLIN, BENJAMIN, his plan of union in 1754, I. 8.
+ Advises a Congress in 1773, 10.
+ Appointed Postmaster-General by Continental Congress, 35.
+ One of the committee to prepare Declaration of Independence, 50.
+ One of the commissioners to procure commercial treaties, 287.
+ Returns from Europe, 433.
+ Public services of, 433.
+ Character of, 435.
+ Influence in the Convention, 436.
+ Speech of, at the close of the Convention, 437.
+ Witnesses the success of Washington's administration, 439.
+ Proposition of, respecting representation in Congress, II. 146.
+ Views of, respecting money bills, 218.
+ Opposed to paying President, 405.
+ In favor of plural executive, 405.
+ Views of, respecting executive, quite unlike Hamilton's, 405;
+ respecting consequences of rejection of Constitution, 487.
+ Unbounded confidence of people in, 498.
+
+ _Free Inhabitants_, privileges of, I. 143.
+
+ _French Loans._ See _France_.
+
+ _French Revolution_, early writers of the, I. 378.
+ Begun when Constitution went into operation, II. 80.
+ Interest felt in, in America, 80.
+
+ _French Troops_, arrive at Newport, I. 156.
+ Join the army at New York, 156.
+
+ _Fugitives_, from justice, provision for surrender of, under the
+ Confederation, I. 143, II. 449.
+ From service, clause in Constitution respecting, history of, 450.
+ See _Slaves_.
+
+
+ G.
+
+ _General Convention._ See _Constitutional Convention_.
+
+ _Georgia_, a provincial government, I. 4.
+ Constitution of, formed, 122.
+ Appoints and instructs delegates to the Convention, 369.
+ Had but one chamber in legislature, II. 132.
+ Opposed to equality of suffrage in House of Representatives, 138.
+ Divided on question of equal vote of States in Senate, 141, 148.
+ Had three representatives in first House, 149.
+ Opposed to census of free inhabitants, 153;
+ to equality of States in Senate, 165;
+ to executive holding office during "good behavior," 173.
+ In favor of property qualification for national officers, 204.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 216, 218.
+ Divided on question of each State having one vote in Senate, 227.
+ Opposed to taxing exports, 296.
+ Position of, in Convention, respecting slave-trade, 297, 301.
+ Vote of, respecting slave-trade, 305.
+ Cession by, in 1802, 357.
+ Vote of, on suspension of habeas corpus, 360;
+ respecting citizenship clause in Constitution, 453.
+ Ratification of Constitution by, 515, 526.
+ Remoteness of, 526.
+ Situation of, at close of Revolution, 526.
+ Motives of, to embrace Constitution, 526.
+ Address by legislature of, to President Washington, 527.
+ Exposure of, to ravages of Indians, 527.
+ Escape of slaves from, to Florida, 527.
+
+ GERRY, ELBRIDGE, opposed to numerical representation in Congress, II.
+ 49;
+ to tax on exports, 294.
+ Refused to sign Constitution, why, 485.
+ Censured for refusing to sign Constitution, 501.
+
+ GILLON, Commodore, arguments of, in convention of South Carolina, II.
+ 548.
+
+ GORHAM, NATHANIEL, views of, respecting rule of suffrage for House of
+ Representatives, II. 135.
+ A member of committee to apportion representatives, 148.
+
+ _Government_, disobedience to, how punished, II. 61.
+ Essentials to supremacy of, 62.
+ Different departments in, advantages of, 245.
+ Approximation to perfect theory of, only attainable, 247.
+ Distribution of powers of, when easy, 421;
+ when difficult, 421.
+
+ _Governor_, part of the provincial governments, I. 4.
+
+ GRAYSON, WILLIAM, opposed to Constitution, II. 506.
+
+ _Great Britain_, re-union with, desired by some, II. 493;
+ letter of Colonel Humphreys respecting, 493;
+ Hamilton's views respecting, 494.
+
+ _Green Dragon Tavern_, meeting at, respecting a national regulation of
+ commerce, I. 336.
+
+ _Grievances._ See _Colonies_ and _Revolution_.
+
+ _Guardoqui_, Spanish minister, arrival of, I. 313.
+ Negotiations with, respecting the Mississippi, 313.
+
+
+ H.
+
+ _Habeas Corpus_, privilege of, when suspended, II. 359;
+ under common law of England, 359.
+
+ _Half-pay_, resisted by Connecticut and Massachusetts, I. 190.
+ History of, 194.
+ Commutation of, 194.
+ See _Officers of the Revolution_.
+
+ HALLAM, HENRY, Constitutional History of England by, great value of,
+ II. 244.
+
+ HAMILTON, ALEXANDER, laments the changes in Congress in 1778, I. 127.
+ Exertions of, respecting revenue system, 176.
+ Reasons of, for voting against revenue system, 177.
+ Answers the objections of Rhode Island, 177, 206, 207.
+ On the commercial advantages of a revenue power, 184.
+ On the discontents of the army, and the public credit, 197.
+ Opinions of, concerning the reorganization, &c., in 1780, 202.
+ Maintains that Congress should have greatly enlarged powers, 204.
+ Suggests a convention of all the States in 1780, 205.
+ Enters Congress, 206.
+ On a revenue, and the mode of collecting it, 207.
+ On the compatibility of federal and State powers, 207.
+ On the appointment of revenue officers, 208.
+ Extent of views of, 209.
+ On the rule of contribution, 210.
+ On the necessity for power of taxation, 211.
+ Seeks to introduce new principles, 211.
+ On a peace establishment, 214.
+ Opinions on the powers that should be given to Congress, 219.
+ Exertions of, to suppress the mutiny at Philadelphia, 220.
+ Views of, respecting defects of the Confederation, 221.
+ Opinions of, too far in advance of the time, 224.
+ Answers New York objections to revenue system, 247.
+ Opinions of, concerning the Confederation, 263.
+ Views of, respecting the regulation of commerce, 277;
+ the statesmanship of America, 278.
+ Induces New York to send delegates to Annapolis, 345.
+ Reports at Annapolis in favor of a general Convention to revise the
+ federal system, 347.
+ Relation of, to the plan of a general Convention, and a national
+ Constitution, 350.
+ Contemplates a new government, 350.
+ Induces the legislature of New York to urge a general Convention,
+ 359.
+ Views of, on the mode of proceeding, 364.
+ Confidence of, in the experiment of a Convention, 373.
+ History and character of, 406.
+ Birth of, 408.
+ Various public services of, 409, II. 593.
+ Talleyrand's opinion of, I. 410.
+ Death of, 410.
+ Views of, respecting the English Constitution, 411.
+ Relation of, to the Constitution, 412.
+ Compared with the younger Pitt, 413, 416.
+ Eminent fitness of, for the times, 414.
+ Advocates the Constitution in the Federalist, 417.
+ Compared with Webster, 418.
+ Anxiety of, about the Constitution, 419.
+ Unjustly charged with monarchical tendencies, II. 11, 94, 110.
+ Views of, respecting Constitution, 94.
+ Principles of civil obedience, as propounded by, 96.
+ Views of, respecting rule of suffrage for House of Representatives,
+ 135;
+ dissolution of Union, 136;
+ choice of President, 174, 240, 392;
+ naturalization, 205;
+ larger House of Representatives, 213.
+ Measures of, respecting summoning of Constitutional Convention, 273.
+ Views of, respecting executive, quite unlike Franklin's, 405;
+ President's power to adjourn Congress, 420.
+ Explanation of, respecting appellate power of Supreme Court, 428.
+ Views of, respecting amendment of Constitution, 477.
+ Objections of, to Constitution, 487.
+ Views of, respecting consequences of rejection of Constitution, 487,
+ 570;
+ possible reunion with Great Britain, 494.
+ Essays of, in Federalist, 503.
+ Believed people predisposed in favor of Constitution, 516.
+ Arrangements of, for transmission of news of action of States on
+ Constitution, 551.
+ Leading spirit in convention of New York, 568.
+ Anxiety of, respecting action of States on Constitution, 569.
+ Had great cause for solicitude, 569.
+ Prospects of usefulness of, 569.
+ Foresight of, respecting operation of Constitution, 570.
+ Had profound understanding of Constitution, 570.
+ Ambition of, 570.
+ Importance of public character and conduct of, 570.
+ Contest of, with opponents of Constitution in New York, 571.
+ Critical position of, as citizen of New York, 571.
+ Reply of, to opponents of Constitution in New York, 572.
+ News received by, of ratification of Constitution by New Hampshire,
+ 573.
+ Letter of, to Madison, respecting chances of ratification by New
+ York, 575.
+ Would have been led by personal ambition to remove from New York,
+ 575.
+ Policy of, national, 577.
+ Reason of, for embracing Constitution, 577.
+ Efforts of, to procure adoption of Constitution by New York, 577,
+ 584.
+ Sends news of ratification by New Hampshire to Madison, 578.
+ Great speech of, in New York convention, in favor of Constitution,
+ 586.
+ Writes to Madison, asking advice respecting New York, 587.
+ Honors paid to, by city of New York, 592.
+
+ HANCOCK, JOHN, retires from Congress, I. 125.
+ Returns to Congress, 126.
+ President of Massachusetts convention, II. 537.
+ Proposes amendments to Constitution, 537.
+ Great influence of, 537.
+
+ HARRISON, BENJAMIN, opposed to Constitution, II. 506.
+
+ _Hartford Convention_, met in 1779, I. 205.
+
+ _Heights of Haerlem_, occupied by Washington, I. 92.
+
+ HENRY, PATRICK, Governor of Virginia, I. 126.
+ Declined to attend Convention, II. 173.
+ Opposed to Constitution, 505.
+ Characteristics of, 505, 561.
+ In favor of submitting Constitution to people of Virginia, 510.
+ Leader of opponents of Constitution in Virginia, 552.
+ Jefferson's estimate of, 552.
+ Great popularity of, 552.
+ Wisdom of, lacked comprehensiveness, 553.
+ Great powers of, employed against Constitution, 553.
+ Views of, respecting American spirit of liberty, 553.
+ Considered Bill of Rights essential, 554.
+ Arguments of, against Constitution, 555, 557.
+ Modern scepticism concerning abilities of, 561.
+ Quotes Jefferson's views of Constitution, 561.
+ Opposed to Constitution to the last, in Virginia Convention, 579.
+ Project of, for amending Constitution, 580.
+ Patriotic conduct of, on adoption of Constitution by Virginia, 581.
+ Became earnest defender of Constitution, 582.
+
+ _House of Burgesses_, of Virginia, dissolved, I. 11.
+
+ _House of Commons_, ministerial majority of, during Revolution, II.
+ 237.
+
+ _House of Representatives_, Constitution of, discussion respecting,
+ II. 36.
+ Members of, chosen for two years, 134;
+ qualifications of, 134.
+ Rule of suffrage for, great debate on, 135.
+ Exclusive power of, over money bills, 146, 214.
+ Power of, to fix salaries of government officers, 146.
+ Ratio of representation in, 147, 212.
+ First, apportionment of members for, 148, 151.
+ Basis of, agreed to, 165.
+ Members of, must be twenty-five years old, 203;
+ have been citizens three years, 203;
+ be inhabitants of States from which chosen, 212.
+ Larger, favored by Wilson, Madison, and Hamilton, 213.
+ Ultimate choice of executive by, 222.
+ To present impeachments, 262.
+ Quorum of, 262.
+ To choose its own presiding officer, 263.
+ To vote for President by States, 394.
+ Choice of President by, quorum for, 394;
+ majority of States requisite to, 394.
+
+ HOWE, SIR WILLIAM, proclamation by, respecting oath of allegiance, I.
+ 106.
+ Takes possession of Philadelphia, 113.
+ Estimate of, concerning the American force at the Brandywine, 113.
+
+ HUMPHREYS, Colonel, one of Washington's aids, II. 493.
+ Letter of, respecting hopes of loyalists, 493.
+
+ HUNTINGTON, Governor, influence of, in convention of Connecticut, II.
+ 529.
+
+
+ I.
+
+ _Impeachment_, executive proposed to be removable on, II. 171.
+ Whether executive should be subject to, 176.
+ How to be decided, 232.
+ To be presented by House of Representatives, 262.
+ Of President, causes of, 397.
+ King's pardon cannot be pleaded in bar of, 414.
+ President cannot pardon, 414.
+ King may pardon, 414.
+
+ _Impeachments_, proposed plan respecting, II. 235.
+ Nature of, and constitutional provisions respecting, 260.
+ To be tried by Senate, 261.
+
+ _Imposts_, power of Congress to collect, II. 322.
+ To be uniform throughout United States, 325.
+ What may be laid by States, 368.
+ Laid by States, net produce of, how applied, 368;
+ subject to the revision of Congress, 368.
+ Revenue from, easiest mode of paying expenses of government, 528.
+
+ _Indian Affairs_, superintendence of, assumed by Continental Congress,
+ I. 35.
+
+ _Indians_, position of, II. 325.
+ Commerce with, 325;
+ regulated by federal authority, 326;
+ provision of Confederation respecting, 326.
+ Not regarded as foreign nations, 326.
+
+ _Independence_, resolution of, adopted in Congress, I. 49.
+ Declaration of, ordered to be prepared, 50;
+ brought in, 51;
+ adopted, 51;
+ effect of, 51.
+
+ _Inspection Laws_, subject to what abuse, II. 368.
+
+ _Insurrection._ See _Massachusetts_ and _Shays's Rebellion_.
+
+
+ J.
+
+ JAY, JOHN, report of, on the infractions of the Treaty of Peace, I.
+ 254, 257.
+ Projected mission of, to Spain, 313.
+ Proceedings of, as Secretary for Foreign Affairs, respecting the
+ Mississippi, 313.
+ Essays of, in Federalist, II. 503.
+ Efforts of, to procure adoption of Constitution by New York, 585.
+
+ JEFFERSON, THOMAS, one of the committee to prepare Declaration of
+ Independence, I. 50.
+ Account by, concerning the Congress of 1776, 64.
+ Account by, of Declaration of Independence, 82.
+ In the legislature of Virginia, 126.
+ One of the commissioners to procure commercial treaties, 287.
+ On the surrender of the Mississippi, 321.
+ Suggests the decimal coinage, 443.
+ Views of, respecting admission of States, II. 76.
+ Resolve of, for organization of States from Northwestern Territory,
+ 343.
+ Practice of, respecting cabinet, 409.
+ Views of, respecting government, 506;
+ modifications of Constitution, 506.
+ At Paris when Constitution was adopted, 506.
+ Did not counsel rejection of Constitution, 508.
+ Persevered in certain objections to Constitution, 509.
+ Letters of, respecting Constitution, 562, 564.
+
+ JOHNSON, Dr., of Connecticut, views of, respecting Constitution, II.
+ 128.
+ First suggested present constitution of Congress, 138.
+
+ _Journal_, to be kept by each house of Congress, II. 263.
+
+ _Judges_, tenure of office of, II. 67;
+ in England, 67.
+ Removal of, 68.
+ Power of removal of, in England, 69;
+ in Massachusetts, 70.
+ "Good behavior" of, 70.
+
+ _Judicial Power of United States_, to settle disputes between State
+ and nation, II. 54.
+ Unknown to Confederation, 60.
+ Necessity and office of, 61.
+ Intent evinced by introduction of, 63.
+ Made supreme, 64.
+ Coextensive with legislative, 65.
+ Control of, over State legislation, 66.
+ Formation of, 421.
+ Great embarrassments respecting, 422.
+ Admirable structure of, 422.
+ Jurisdiction of, cases embraced by, 423.
+ Great importance of clearly defining, 425.
+ Embraces cases under Constitution, laws, and treaties, 429.
+ Changes and improvements in original plan of, 431.
+ Constitutional functions of, 431.
+ Leading purposes of, 431.
+ May declare laws unconstitutional, 434.
+ Simplicity, &c. given by, to operation of government, 437.
+
+ _Judiciary_, functions of, II. 63, 432.
+ Question concerning number of tribunals in, 65.
+ Proposed powers of, 66.
+ Restriction respecting salary of, 176.
+ Jurisdiction of, respecting impeachment of national officers, 176;
+ over cases arising under national laws, 176;
+ over questions involving national peace, 176.
+ Action of, not to be influenced by other departments, 246.
+
+ _Judiciary of Massachusetts_, attempt to alter the charter in respect
+ to, I. 6.
+
+
+ K.
+
+ _Kentucky_, inhabitants of, resist the surrender of the Mississippi,
+ I. 322.
+
+ KING, RUFUS, birth and education of, I. 448.
+ Public services of, 448.
+ Proposes the clause respecting the obligation of contracts, 452; II.
+ 365.
+ Senator in Congress, I. 453.
+ Minister to England, 453.
+ A member of committee to apportion representatives, II. 148.
+ Views of, respecting Senate, 225;
+ seat of government, 275.
+ Remarks of, respecting slave-trade, 281.
+ Views of, respecting representation of slaves, 292.
+ Effort of, to exclude slavery from Northwestern Territory, 343.
+
+
+ L.
+
+ _Land_ as the basis of a rule for contribution, I. 210.
+ Adopted as measure of wealth by Congress of 1776, II. 160.
+ Of United States unappropriated, Madison's motion respecting, 351.
+
+ _Lands_, right of aliens to hold, proposed in certain treaties, I.
+ 280.
+ See _Western Lands_ and _Territory_.
+
+ _Law of Nations_, offences against, II. 330;
+ power of Congress to define and punish, 331.
+ Respecting extradition of fugitives, 456.
+
+ _Laws_ of United States, how enacted, II. 264;
+ supreme, 372, 374;
+ to be in pursuance of Constitution, 374;
+ cases arising under, jurisdiction over, 430.
+ Of States, constitutionality of, 374.
+ Constitutionality of, how determined, 434.
+
+ LAW, RICHARD, influence of, in convention of Connecticut, II. 529.
+
+ LEE, CHARLES, General, expedition of, against the Tories of New York,
+ I. 66.
+
+ LEE, RICHARD HENRY, moves the resolution of independency, I. 49.
+ Account of, 49.
+ On the navigation of the Mississippi, 315.
+ Proposition of, in Congress, to amend Constitution, II. 500.
+ Opposed to Constitution, 506.
+
+ _Legislative Department_, division of, into two chambers, I. 119.
+ Omnipotent in England, 72.
+ Powers of, limited in America by constitutions, 72.
+ Hamilton's views respecting, II. 100, 103, 105.
+ Great struggle respecting, in Constitutional Convention, 130.
+ Objections to one chamber in, 130.
+ How far may safely be influenced by executive, 244.
+ Action of, requires discretion, 246.
+ Close relation of, to executive, 247.
+
+ _Letters of Marque and Reprisal_ issued by Massachusetts in 1775, I.
+ 75.
+ Power of Congress to grant, II. 332.
+
+ _Lexington_, battle of, I. 27.
+
+ LIVINGSTON, ROBERT R., one of the committee to prepare Declaration of
+ Independence, I. 50.
+ Remarks of, in convention of New York, II. 574.
+ Efforts of, to procure adoption of Constitution by New York, 585.
+
+ _Long Island_, battle of, I. 91.
+
+ LOWNDES, RAWLINS, opposed to Constitution, II. 510.
+ Arguments of, against Constitution, 511.
+
+ _Loyalists_, scheme of, respecting Bishop of Osnaburg, II. 492.
+ Numbers of, small, 493.
+ Alarm occasioned by supposed scheme of, 493.
+ See _Tories_.
+
+
+ M.
+
+ MADISON, JAMES, enters the Revolutionary Congress, I. 126.
+ Exertions of, respecting revenue system, 176.
+ Writes the address in favor of revenue system, 177.
+ Answers Massachusetts on the half-pay, 193.
+ Birth of, 420.
+ Public services of, to the close of the war, 420.
+ Initiates the Virginia measures leading to a general Convention,
+ 423.
+ Attends the convention at Annapolis, 427.
+ Attends the general Convention, 427.
+ Labors of, in the Convention, 427.
+ Opinions and character of, 428.
+ Described by Jefferson, 430.
+ Letter of, to Philip Mazzei, 431.
+ Action of, respecting change in rule of suffrage, II. 36.
+ Views of, respecting national government, 40;
+ Senate, 41;
+ revision by Congress of State legislation, 54;
+ revisionary check on legislation by executive, 58;
+ use of force against States, 62;
+ Constitution, 106;
+ rule of suffrage for House of Representatives, 135;
+ dissolution of Union, 136;
+ Western States, 152.
+ How far in favor of executive during "good behavior," 173.
+ Views of, respecting difference between Constitution and league,
+ 184;
+ naturalization, 205.
+ In favor of larger House of Representatives, 213.
+ Views of, respecting eligibility of members of Congress to office,
+ 250;
+ seat of government, 275.
+ In favor of tax on exports, 284.
+ Views of, respecting slave-trade, 304.
+ Proposition of, respecting Indian affairs, 327.
+ Views of, respecting legislation of Congress of Confederation over
+ Northwestern Territory, 345, 348, 351.
+ Views and votes of, concerning Northwestern Territory, 348.
+ Holds regulation of commerce to be indivisible, 371.
+ Views of, respecting treason, 386.
+ Motion of, respecting election of President, 403.
+ Views of, respecting amendment of Constitution, 477;
+ consequences of rejection of Constitution, 487.
+ Proposed amendment of Constitution by Congress, defeated by, 500.
+ Essays of, in Federalist, 503.
+ A leading advocate of Constitution in Virginia, 506.
+ Reply of, to opponents of Constitution in Virginia convention, 558.
+ Description of new government by, 559.
+ Efforts of, in Virginia convention, 564.
+ Opinion of, respecting conditional ratification of Constitution,
+ 588.
+
+ _Magazines_, authority of Congress over, II. 340.
+
+ _Majority_, principle of, seldom to be departed from, II. 299.
+
+ _Mandamus Councillors_, appointment of, in Massachusetts, I. 25.
+ Treatment of, by the people, 25.
+
+ MANLY, JOHN, commander of the Lee, I. 74.
+ Captures a prize, 75.
+
+ _Maritime Jurisdiction_, of courts of United States, II. 445.
+ Under Confederation, 445.
+
+ MARSHALL, JOHN, a leading advocate of Constitution in Virginia, II.
+ 506.
+
+ MARTIN, LUTHER, views of, respecting Constitution, II. 92, 121;
+ rule of suffrage for House of Representatives, 135;
+ manner of voting in Senate, 186.
+ Motion of, respecting admission of States, 354.
+ Supremacy of Constitution, &c. proposed by, 374.
+ Great opposition of, to Constitution, 484, 512.
+ Communication of, to legislature of Maryland, 512;
+ chief ground of, 513.
+
+ MARTINDALE, captain in the Revolutionary naval force, I. 74.
+
+ _Maryland_, a proprietary government, I. 5.
+ Constitution of, formed, 122.
+ Remonstrates against the claims to Western lands, 131, 421.
+ Ratifies the Constitution, 136.
+ Action of, commended, 138.
+ Appoints and instructs delegates to the Convention, 369.
+ Action of, upon the Articles of Confederation, 501.
+ Delegates from, divided in opinion, II. 121.
+ Divided on question of national legislature, 133;
+ equality of suffrage in House of Representatives, 138.
+ In favor of equal representation of States in Senate, 141, 165.
+ Had six representatives in first House, 149.
+ Opposed to census of free inhabitants, 153;
+ executive holding office during "good behavior," 173.
+ In favor of referring Constitution to State legislatures, 184;
+ each State having one vote in Senate, 186, 227.
+ Vote of, respecting citizenship, as qualification for office, 209;
+ money bills, 216, 218.
+ Opposed to nine years' citizenship as qualification of senator, 224;
+ taxing exports, 296.
+ Vote of, respecting slave-trade, 305;
+ admission of States, 354.
+ Action of legislature of, respecting Constitution, 511.
+ Convention of, to vote on Constitution, 514;
+ importance of action of, 542;
+ efforts made in, to amend Constitution, defeated, 543.
+
+ MASON, GEORGE, views of, respecting Constitution, II. 123.
+ Objections of, to compound ratio of representation, 151.
+ Views of, respecting money bills, 218.
+ Opposed to tax on exports, 294.
+ Proposition of, to restrain grants of perpetual revenue, 319.
+ Views of, respecting militia, 337.
+ Refused to sign Constitution, why, 485, 509.
+ Great ability of, 505.
+ Opposed to Constitution, 505.
+ In favor of submitting Constitution to people of Virginia, 509.
+ Arguments of, against Constitution, in Virginia convention, 557.
+
+ _Massachusetts_, a charter government, I. 5.
+ Provincial governor of, appointed by the crown, 5.
+ Council of, chosen by Assembly, 5.
+ Representatives of, chosen by the people, 5.
+ Appoints delegates to first Continental Congress, 12.
+ Colonial government of, how ended, 25.
+ Provincial Congress of, how formed, 26.
+ Authority assumed by Provincial Congress, 26.
+ Applies to the Continental Congress, for direction and assistance,
+ 31;
+ about government, 32.
+ Army raised by, in 1775, 31.
+ Issues letters of marque and reprisal, 75.
+ Establishes prize court, 75.
+ Money borrowed of, by General Washington, 80.
+ Constitution of, formed, 121.
+ Objections of, to the half-pay, 191;
+ answered by Madison, 193.
+ Act of, concerning British debts, 253.
+ Constitution of, dangers to which it was exposed, 263.
+ Insurrection in, 266, II. 83.
+ Disaffection in, extensive, I. 273.
+ Cedes claims to Western Territory, 300.
+ Proceedings of, respecting a general Convention, 334.
+ Condition of the trade of, in 1785-86, 335.
+ Legislature of, proposes a general Convention, 336;
+ resolutions of, not presented to Congress, 337.
+ Resolution of, for a general Convention, 361.
+ Appoints and instructs delegates to the Convention, 369.
+ Opposed to equality of suffrage in House of Representatives, II.
+ 138;
+ equal representation of States in Senate, 141, 217.
+ Divided on question of equal vote of States in Senate, 148, 165.
+ Had eight representatives in first House, 149.
+ In favor of census of free inhabitants, 153.
+ Opposed to executive holding office during "good behavior," 173.
+ Qualifications of voter in, 188.
+ In favor of property qualification for national officers, 204.
+ Vote of, respecting citizenship as qualification for office, 209;
+ money bills, 216, 218.
+ Opposed to nine years' citizenship as qualification of Senator, 224;
+ each State having one vote in Senate, 227.
+ Sentiments of, respecting holding of office by members of Congress,
+ 249.
+ In favor of States paying members of Congress, 259.
+ Opposed to taxing exports, 296.
+ Vote of, respecting slave-trade, 305.
+ Slavery in, as early as 1630, 454.
+ Parties in, for and against Constitution, 501.
+ Reception of Constitution in, 501.
+ Convention in, to vote on Constitution, 502, 530.
+ Formidable opposition to Constitution in convention of, 529.
+ High rank of, 530.
+ Vacillation of, 530.
+ Revolutionary history of, 530.
+ Anxiety respecting action of, on Constitution, 531.
+ Insurrection in, effect of, 531.
+ Constitution exposed to peculiar hazard in, 531;
+ ratified in, by compromise, 531.
+ Constitution of, excellence of, 531.
+ Parties in convention of, 532.
+ Convention in, amendments to Constitution recommended by, 532, 538,
+ 539;
+ opponents of Constitution in, 533, 534;
+ eminent men in, 534.
+ Probable disastrous effects of rejection of Constitution by, 535.
+ Convention of, proceedings in, 536;
+ discussion in, respecting Hancock's amendments to Constitution,
+ 538;
+ patriotic conduct of, 539.
+ Enthusiasm kindled by action of, 541.
+
+ MAZZEI, PHILIP, letter to, by Madison, I. 431.
+
+ MCKEAN, THOMAS, views of, respecting Constitution, II. 523.
+ Public services of, 524.
+
+ MIFFLIN, General, sent by Washington to the Congress, I. 98.
+
+ _Military Posts_, retained by the British after the treaty, I. 256,
+ 259.
+
+ _Militia_, relation of, to the Continental Congress, I. 35.
+ Committee on, II. 319.
+ Of States, power of general government over, 334;
+ inefficient as troops in Revolution, 334;
+ lack of uniformity among, 335;
+ power of general government over, necessary, 336;
+ how to be disciplined, 337;
+ when Congress may call forth, 338;
+ President commander-in-chief of, 413;
+ cannot call out without authority of Congress, 413.
+
+ _Ministers._ See _Ambassadors_.
+
+ _Mint_, establishment of, I. 444.
+
+ _Mississippi River_, controversy and negotiations respecting
+ navigation of, I. 310;
+ referred to the new government, 327.
+ Navigation of, a topic of opponents of Constitution in Virginia
+ convention, II. 565;
+ Madison's views respecting, 567.
+
+ _Mississippi Valley_, people of, spirit of the, I. 319;
+ retaliate upon the Spanish authorities, 322;
+ form committees, &c., 323.
+
+ _Monarchical Government_, dangers of attempting to establish, I. 370.
+
+ _Monarchy_, detested by people of United States, II. 237, 492.
+ Proposed, rumors of, 492.
+ Attempt to introduce, averted by Constitution, 494.
+
+ _Money_, power to coin, given to Congress, II. 328;
+ borrow, and emit bills, 328.
+
+ _Money Bills_, Originated by House of Representatives, II. 146.
+ Provision concerning, objected to, 147;
+ origin of, 214.
+ Originated by House of Commons, 216.
+ Hallam's discussion respecting, 216.
+ Vote of States respecting, 216.
+ Different propositions in Convention respecting, 219.
+ May be amended in Senate, 222.
+
+ MONTESQUIEU, political discussions of, alluded to, I. 377.
+
+ MORRIS, GOUVERNEUR, Enters the Revolutionary Congress, I. 127.
+ Birth of, 440.
+ Public services of, 440.
+ Chosen Assistant Financier, 443.
+ Author of the decimal notation, 443.
+ Prepares the text of the Constitution, 444.
+ Character of, 444.
+ First Minister to France, 447.
+ Senator from New York, 447.
+ Invited to write in The Federalist, 447.
+ Death of, 447.
+
+ Action of, respecting change in rule of suffrage, II. 36.
+ A member of committee to apportion representatives, 148.
+ Views of, respecting Atlantic and Western States, 152;
+ respecting compound ratio of representation, 152.
+ Proviso of, respecting taxation and representation, 158.
+ Views of, respecting choice of executive, 174.
+ Remarks of, respecting slave-trade, 281.
+ In favor of tax on exports, 284.
+ Views of, on concession to Southern States, 293.
+ Committee of compromise proposed by, 301.
+ Proposition of, respecting vacant lands, 355.
+
+ MORRIS, ROBERT, on a committee to inform Washington of extraordinary
+ powers, I. 101.
+ Laments the absence of some great revolutionary characters, 104.
+ Appointed Superintendent of Finances, 174.
+ Resignation of, 198.
+
+ _Mutiny_, at Philadelphia, of federal troops, I. 220.
+
+
+ N.
+
+ _Natchez_, seizure of property at, by Spanish authorities, I. 318.
+
+ _National Government_, how distinguished from "federal," II. 33.
+ Necessities of, 34.
+ To be kept distinct from State governments, 37.
+ By what States preferred, 117.
+ Arguments in favor of, 122;
+ theoretically sound, 126;
+ strengthened by facts of previous history, 127.
+ Supposed tendency of, to absorb State sovereignties, 128.
+ Self-defence a principal object of, 292.
+
+ _National Legislature_, how to be constituted, II. 35.
+ Divided into two branches, 36.
+ Representation in, diverse views respecting, 36;
+ as affected by State interests, 43;
+ difficulty in fixing ratio of, 43.
+ Unanimity respecting powers of, in Convention, 50.
+ Negative by, on State legislatures, proposed, 51.
+ Must operate directly on people, 63.
+ Proposed powers of, 65.
+
+ _Naturalization_, a subject of solicitude, II. 196.
+ Formerly a State power, 198, 199.
+ A proper subject of constitutional provision, 200.
+ Power of, transferred from State to national government, 201.
+ Views of Hamilton and Madison respecting, 205.
+ Embarrassments of subject, 205.
+ Uniform rule of, power to establish, given to Congress, 328.
+
+ _Naval Force_, employment of, in Massachusetts Bay, I. 73.
+
+ _Navigation Act_, report of committee of detail respecting, II. 290,
+ 301.
+ Position of Southern States respecting, 297.
+ Two-thirds vote proposed by them to be required for, 299.
+ Interest of different States respecting, 301.
+ Passage of, by majority, agreed to, 304.
+
+ _Navy_, origin of the Revolutionary, I. 73.
+ Want of, II. 298.
+ Power of Congress to provide and maintain, 334;
+ to make rules for, 334.
+ Power of President to employ, 413.
+ President commander-in-chief of, 413.
+
+ _Newark_, Washington's evacuation of, I. 98.
+
+ _Newburgh Addresses_, authorship and style of, I. 168.
+ Copy of, sent to the States, 177.
+ Note on, 194.
+
+ _New England_, confederation of, in 1643, II. 453.
+
+ _New Hampshire_, a provincial government, I. 4.
+ Ante-Revolutionary government of, 4.
+ Constitution of, formed, 119.
+ Appoints and instructs delegates to the Convention, 369.
+ Late attendance of, in Convention, II. 24.
+ Had three representatives in first House, 149.
+ In favor of property qualification for national officers, 204.
+ Vote of, respecting citizenship, as qualification for office, 209;
+ respecting money bills, 218;
+ respecting slave-trade, 305.
+ In favor of taxing exports, 296.
+ Vote on Constitution in, postponed, why, 510;
+ effect of, on parties in Virginia, 510.
+ Population of, easily led to oppose Constitution, 514.
+ Convention of, to vote on Constitution, 514;
+ members of, instructed to reject Constitution, 529;
+ amendments presented to, 541;
+ majority of, at first opposed to Constitution, 541;
+ adjournment of, effect of, 541.
+ Action of Federalists of, 541.
+ Convention of, meets, on adjournment, 549;
+ anxiety respecting action of, 549.
+ Ratification of Constitution by, 573.
+ Ninth State to ratify Constitution, 578.
+
+ _New Jersey_, a provincial government, I. 4.
+ Washington's retreat through, 97.
+ Constitution of, formed, 122.
+ Proposal of, in 1778, for the regulation of commerce, 129.
+ Resists the claim of great States to Western lands, 131.
+ Ratifies the Confederation, 135.
+ Action of, commended, 138.
+ Attempts to pay its quotas in paper money, 242.
+ Recommends the regulation of commerce, 277.
+ Appoints and instructs delegates to the Convention, 368.
+ Representation of, concerning the Articles of Confederation, 493.
+ Act of, accepting them, 497.
+ Purely "federal" government proposed by, II. 92.
+ Hamilton's plan of, radical objections to, 99;
+ condemned by Madison, 106.
+ Opposed to division of legislature, 133.
+ In favor of equality of suffrage in House of Representatives, 138;
+ of equal representation of States in Senate, 141, 148, 165.
+ Had four representatives in first House, 149.
+ In favor of census of free inhabitants, 153;
+ of executive holding office during "good behavior," 173.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 216, 218.
+ In favor of each State having one vote in Senate, 227.
+ Vote of, respecting eligibility of members of Congress to office,
+ 251;
+ respecting representation of slaves, 293;
+ respecting slave-trade, 305;
+ respecting admission of States, 354.
+ In favor of taxing exports, 296.
+ Opposed to restricting President to stated salary, 407.
+ Ratification of Constitution by, 515.
+ Convention of, 524.
+ Position of, respecting Constitution, 524.
+ Always in favor of vesting regulation of commerce in general
+ government, 525.
+ Action of, in Constitutional Convention, respecting representation,
+ 525.
+
+ _New States_, admission of, under the Confederation, I. 292;
+ under the Ordinance of 1787, 308.
+ See _Western Territory_ and _Northwestern Territory_.
+
+ _New York_,
+ Constitution of, formed, I. 122.
+ Magnanimity of, commended, 137.
+ Action of, upon the revenue system of 1783, 246.
+ Act of, respecting British debts, 253.
+ Trespass act of, 256.
+ Proceedings of, respecting a general commercial convention, 343,
+ 358.
+ Resolution of, for a general Convention, 360;
+ how received in Congress, 360.
+ Appoints and instructs delegates to the Convention, 369.
+ Act of, respecting boundaries, &c., 505.
+ Rank of, at formation of Constitution, II. 118.
+ Commerce of, at formation of Constitution, 118.
+ Views of public men of, 118.
+ Opposed to division of legislature, 133.
+ In favor of equality of suffrage in House of Representatives, 138;
+ in Senate, 141, 148.
+ Had six representatives in first House, 149.
+ Withdrawal of delegates of, from Convention, 165, 182, 484, 502.
+ Rejection of Constitution by, probable, 182.
+ Vote of, respecting money bills, 216.
+ In favor of each State having one vote in Senate, 227.
+ Reception of Constitution in, 502.
+ Executive government of, opposed to Constitution, 502.
+ Jealousy of Union existing in, 502.
+ Letter of delegates of, against Constitution, 502.
+ Proceedings of legislature of, respecting Constitution, 503;
+ of parties in, respecting Constitution, 503.
+ Convention of, to vote on Constitution, 504.
+ Formidable opposition to Constitution in convention of, 529.
+ Legislature of, divided on question of submitting Constitution to
+ people, 536.
+ Convention of, importance of action of, 542;
+ time of meeting of, 549;
+ anxiety respecting action of, 549;
+ met at Poughkeepsie, 549;
+ Hamilton leading spirit in, 568;
+ discussion in, respecting system of representation proposed by
+ Constitution, 573.
+ Opponents of Constitution in, arguments and plan of, 572;
+ Hamilton's reply to, 572.
+ Effect on, of ratification by New Hampshire, 574.
+ Opponents of Constitution in, schemes of, 584.
+ Numerous amendments to Constitution proposed by, 587.
+ Plan of, to adopt Constitution conditionally, 587.
+ Great struggle in, over ratification of Constitution, 588.
+ Circular letter from, to all other States, 588.
+ Federalists of, justified by Washington, 590;
+ complaints against, 591.
+
+ _New York City_, applies to the Continental Congress respecting
+ British troops, I. 31.
+ Occupied by the British, 91.
+ Temporary establishment of seat of government at, effect of, 591.
+ Celebration in, of adoption of Constitution, 592.
+ Honors paid by, to Hamilton, 592.
+
+ NICHOLAS, GEORGE, a leading advocate of Constitution in Virginia, II.
+ 506.
+
+ _Nobility_, title of, cannot be granted by Congress, II. 362.
+
+ _Non-Intercourse_, when and why adopted by Colonies, I. 23.
+ Association for, recommended and adopted, 24.
+
+ _North Carolina_, a provincial government, I. 4.
+ Constitution of, formed, 122.
+ Appoints and instructs delegates to the Convention, 369.
+ Opposed to equality of suffrage in House of Representatives, II.
+ 138;
+ to equality of votes in Senate, 141, 217.
+ Vote of, respecting equal vote of States in Senate, 141, 148, 165;
+ respecting census of free inhabitants, 153.
+ Had five representatives in first House, 149.
+ Opposed to executive holding office during "good behavior," 173.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 216, 218.
+ Divided on question of nine years' citizenship as qualification of
+ Senator, 224.
+ Opposed to each State having one vote in Senate, 227;
+ to taxing exports, 296.
+ Position of, in Convention, respecting slave-trade, 297, 301.
+ Vote of, respecting slave-trade, 305;
+ on suspension of habeas corpus, 360.
+ Cession by, in 1790, 357.
+ Opposed to restricting President to stated salary, 407.
+ Convention of, Anti-Federal majority in, 596;
+ debate in, 596;
+ amendments to Constitution proposed by, 597;
+ peculiar action of, 597.
+ Attitude of, placed Union in new crisis, 603.
+
+ _Northern States_, in favor of granting to government full revenue and
+ commercial powers, II. 292.
+ Chief motive of, for forming Constitution a commercial one, 298.
+ Cut off from British West India trade, 298.
+ Separate interests of, different, 300.
+
+ _Northwestern Territory_ ceded by Virginia, I. 137, 295.
+ Cession modified, 300.
+ Ordinance respecting, why framed, 301;
+ provisions of, 302;
+ character of, 306.
+ Ordinance for, reported, 452.
+ Cession of, II. 15.
+ Origin and relations of, &c., 341.
+ Jefferson's resolve for organization of States in, 343.
+ Slavery in, proposals for prohibiting, 343.
+ Ceded on what trusts, 347, 349.
+ Admission of new States under, see _New States_.
+
+
+ O.
+
+ _Oath_, of office, proposed by New Jersey in 1778, I. 130.
+
+ _Oath of Allegiance_, to the King, received by Sir William Howe in New
+ Jersey, I. 106.
+ To the United States required by Washington in New Jersey, 107;
+ dissatisfaction occasioned by, 107.
+ Propriety of, defended by Washington, 108.
+ Prescribed in Congress in 1778, 109.
+
+ _Obligation of Contracts_, clause respecting, taken from the Ordinance
+ of 1787, I. 452.
+
+ _Officers_ of United States, appointment of, II. 417.
+
+ _Officers of the Revolution_, treatment of, by Congress, and the
+ country, I. 159.
+ Pay of, 159.
+ Proceedings in Congress respecting half-pay for, 160.
+ Pennsylvania line, 163.
+ Proceedings of, respecting their pay, 165.
+ See _Army of the Revolution_, _Half-pay_, and _Newburgh Addresses_.
+
+ _Oligarchy_, detested by people of United States, II. 237.
+
+ _Orders in Council_, respecting trade with the United States, I. 283.
+ Efforts of Congress to counteract, 285.
+ Effect of, on Northern States, II. 298.
+
+ _Ordinance of 1787_, framing of, I. 452.
+ Admission of new States provided for by, II. 77.
+ Fixed no mode of admitting new States, 79.
+ Provisions of, 344.
+ Slavery excluded by, 344.
+ Author of, 344, 365.
+ Passed, 365.
+ Character of, 366.
+ Provision in, respecting contracts, occasion of, 366.
+ Extradition of slaves under, 454.
+
+ _Osnaburg, Bishop of_, rumored purpose of loyalists respecting, II.
+ 492.
+ Afterwards Duke of York, 493.
+
+
+ P.
+
+ PAINE, ROBERT TREAT, delegate to first Continental Congress, I. 13.
+
+ PALFREY, Colonel, sent to New Hampshire to arrest Tories, I. 65.
+
+ _Paper Money_, first issued by the Continental Congress, I. 78.
+ Signing of, 78.
+ State systems of, under Confederation, II. 310.
+ See _Rhode Island_.
+
+ _Pardon_,
+ President's power of, II. 413.
+ See _Treason_.
+
+ _Parliament, British_, authority of, over trade, how recognized by
+ first Continental Congress, I. 20.
+ Two houses in, origin of, II. 130;
+ mutual relations of, 130.
+ Corruption in, origin and extent of, 242;
+ effect of knowledge of, on framers of Constitution, 243.
+ Necessity of officers of state, &c. sitting in, 254.
+ Analogy of Congress to, 254.
+
+ PARSONS, THEOPHILUS,
+ motion of, in Massachusetts Convention, to ratify Constitution, II.
+ 537.
+ Form of ratification and proposed amendments drawn by, 541.
+
+ _Patents_ for useful inventions, subject of, brought forward by
+ Pinckney, II. 339.
+ State legislation concerning, 339.
+ Power over, surrendered to Congress, 339.
+
+ PATTERSON, WILLIAM,
+ mover of New Jersey plan of government, II. 93.
+ Arguments of, in Convention, 93.
+
+ _Peace_, effect of, upon the country, I. 179.
+ See _Treaty of Peace_.
+
+ _Peace Establishment._ See _Washington_ and _Hamilton_.
+
+ PENDLETON, Chancellor, a leading advocate of Constitution in Virginia,
+ II. 506.
+
+ _Pennsylvania_,
+ a proprietary government, I. 5.
+ Constitution of, formed, 122.
+ Stop-law of, 253.
+ Appoints and instructs delegates to the Convention, 368.
+ Had but one chamber in legislature, II. 132.
+ Opposed to election of Senators by State legislatures, 135;
+ to equality of suffrage in House of Representatives, 138;
+ to equal representation of States in Senate, 141, 148, 165, 217.
+ Had eight representatives in first House, 149.
+ In favor of census of free inhabitants, 153;
+ of executive holding office during good behavior, 173.
+ Opposed to property qualification for office, 189.
+ Constitution of, citizenship under, 206.
+ Vote of, respecting citizenship as qualification for office, 209;
+ respecting money bills, 218.
+ Opposed to nine years' citizenship as qualification of Senator, 224;
+ to each State having one vote in Senate, 227;
+ to impeachments being tried by Senate, 262.
+ In favor of taxing exports, 296.
+ Vote of, respecting slave-trade, 305.
+ Ratification of Constitution by, 515.
+ Convention of, first to meet, 519.
+ Second State in population, in 1787, 519.
+ Western counties of, insurrection in, 521;
+ opposition of, to Constitution, 524.
+
+ _People of America_,
+ when not associated as such, I. 16.
+ Sole original source of political power, II. 38, 471, 482.
+ Will of,
+ how to be exercised, 471;
+ on a new exigency, how to be ascertained, 483.
+
+ _Petition_,
+ right of assembling for, asserted, I. 23.
+ Of Continental Congress to the King, 23, 38.
+
+ _Philadelphia_,
+ threatened loss of, to the enemy, I. 99.
+ Falls into the hands of the enemy, 113.
+ Fought for, at the battle of the Brandywine, 113.
+ The scene of many great events, II. 519.
+ Demonstration at, in honor of adoption of Constitution, 582.
+
+ PICKERING, TIMOTHY, suggests academy at West Point, I. 218.
+
+ PINCKNEY, CHARLES COTESWORTH,
+ Revolutionary services of, I. 454.
+ Views of, respecting the requisite reform, 455;
+ on the slave-trade, 456, 459, 460;
+ respecting consequences of rejection of Constitution, 487.
+ Proposition of, respecting taxes on exports, II. 189;
+ respecting extradition of slaves, 189, 452.
+ Notifies Convention of position of South Carolina concerning tax on
+ exports, 280.
+ In favor of Constitution, 510.
+ Writes to Washington of adoption of Constitution by South Carolina,
+ 544.
+ Fidelity of, to South Carolina, 545.
+ Arguments of, in South Carolina convention, 548.
+
+ PINCKNEY, CHARLES,
+ plan of government submitted by, II. 32.
+ Proposition of, respecting House of Representatives, negatived, 40.
+ Suggestions of, respecting public debt, revenue, &c., 319.
+ In favor of Constitution, 510.
+
+ _Piracy_,
+ nature of, II. 331.
+ Power of Congress to define and punish, 331.
+
+ PITT, WILLIAM,
+ designs commercial relations with the United States, I. 282.
+ His bill to effect them, 283.
+ His extraordinary opportunities, 413.
+ Estimate of, 414.
+
+ _Political Science_,
+ among the ancients, I. 374.
+ In the Middle Ages of Europe, 375;
+ in England, 376;
+ in France, 377.
+
+ _Popular Governments_, American theory of, I. 261.
+
+ _Population_ of States in 1790, table of, II. 55.
+
+ _Ports_, no preference to be given to, II. 324.
+
+ _Post-Office_ department,
+ Continental, first established, I. 35;
+ colonial, 433.
+ Power to establish, extended to post-roads, II. 328.
+
+ _Preamble_ of Constitution,
+ as reported and adopted, II. 372;
+ language of, important, 373.
+
+ _President_,
+ making of treaties by, with consent of Senate, II. 234.
+ Officers proposed to be appointed by, with consent of Senate, 234.
+ Re-eligibility of, arguments in favor of, 235.
+ Choice of, proposed method of, 235;
+ by Senate, objections to, 236, 392;
+ ultimate, by House of Representatives, 240, 394.
+ Revisionary control over, where to be lodged, 239.
+ Extensive patronage of, 252.
+ Subject to impeachment, 261;
+ for what causes, 397.
+ Veto power of, 264.
+ Objections of, to law, to be entered on journal of Congress, 264.
+ Choice of, direct, by people, negatived, 388;
+ by electors, objections to, 388;
+ advantages of, 389;
+ method of, 390.
+ Term of office of, proposed to be seven years, 392.
+ Choice of, by majority of electors, objections to, 393.
+ Vacancy in office of, 397;
+ when Congress to provide for, 401.
+ "Inability" of, to discharge duties, meaning of, 397;
+ how ascertained, 397.
+ Insanity of, 397.
+ Death of, and of Vice-President, 398.
+ Choice of, changes in mode of, 400;
+ if not made before 4th of March, 400;
+ by House of Representatives, to be from three highest candidates,
+ 400.
+ Qualifications of, 404.
+ Pay of, arguments in favor of, 404;
+ not to be increased nor diminished during term of office, 406.
+ Forbidden to receive more than stated salary, 407.
+ Council for, question concerning, 407.
+ May require opinions of cabinet officers, 408.
+ Alone responsible for conduct of executive department, 409.
+ Powers of, 409;
+ to make war and peace, 411;
+ over State militia, 413;
+ to pardon offences, 413;
+ to appoint officers, 417.
+ "Executive power" vested in, meaning of, 412.
+ Oath of, to execute laws, 412.
+ Commander-in-chief, 413.
+ To prosecute war, 413.
+ Treaty-making power of, 414.
+ To receive ambassadors, &c., 415.
+ Cannot create offices, 418.
+ To inform Congress of state of Union, 419.
+ To recommend measures to Congress, 419.
+ May call extra sessions of Congress, 419.
+ When may adjourn Congress, 419.
+
+ PRINGLE, JOHN JULIUS, in favor of Constitution, II. 510.
+
+ _Prize-Courts_, want of, under the Revolutionary government, I. 73.
+ Establishment of, urged by Washington, 75.
+ Of Massachusetts, trials in, 75.
+ Colonial, appeals from, to Congress, 76.
+ Under Constitution, II. 330.
+
+ _Property_, urged as basis of representation, II. 148.
+ As a qualification of elector, 148;
+ for office, 187, 202.
+
+ _Proprietary Governments_, form and character of, I. 5.
+
+ _Protections_, issued by Sir William Howe in New Jersey, I. 106.
+ Surrender of, required by Washington, 106.
+
+ _Provincial Governments_, form and character of, I. 4.
+
+ _Public Lands._
+ See _Western Territory, Northwestern Territory_, and _Ordinance of_
+ 1787.
+
+
+ Q.
+
+ _Qualifications_,
+ of national officers, proposals respecting, II. 186;
+ landed, rejected, 187;
+ property, an embarrassing subject, 202.
+ Of electors, 187, 194, 200.
+ Of voter in Massachusetts, 188.
+ Of members of Congress, 194.
+ Of citizenship, embarrassments respecting, 205;
+ attempt to exempt certain persons from rule respecting, 205.
+ Of Senators, 223.
+ Of Vice-President, 401.
+ Of President, 404.
+ Of religious test, never to be required, 479.
+
+ _Queen's County, Long Island_, inhabitants of, to be disarmed, I. 68.
+
+ _Quorum_, discussions in Convention respecting, II. 262.
+
+ _Quotas_, first apportionment of, among the Colonies, I. 34.
+ Of troops in 1776, 92.
+ See _Requisitions_.
+
+
+ R.
+
+ RAMSAY, DAVID, Dr., in favor of Constitution, II. 510.
+
+ RANDOLPH, EDMUND,
+ urges Washington to attend the Convention, I. 365.
+ Revolutionary services of, 480.
+ Governor of Virginia, 481.
+ Course of, in the Convention, 481.
+ Reasons of, for supporting the Constitution, 481.
+ Genealogy of, 485.
+ Plan of government proposed by, II. 32, 410.
+ A member of committee to apportion representatives, 148.
+ Objections of, to compound ratio of representation, 151.
+ Proposition of, respecting census, 162;
+ to strike out "wealth" from rule of representation, 164.
+ In favor of confining equality of States in Senate to certain cases,
+ 165.
+ Views of, respecting money bills, 218.
+ Resolution of, respecting admission of new States, 349.
+ Clause introduced by, respecting death of President, &c., 403.
+ Refused to sign Constitution, why, 485, 555.
+ Position of, respecting Constitution, 506.
+ Advocated adoption of Constitution in Virginia convention, 556.
+
+ RANDOLPH, PEYTON,
+ President of first Continental Congress, I. 13;
+ of second Continental Congress, 28.
+ Death and character of, 28.
+
+ _Ratification_ of Constitution, as marking character of government,
+ II. 85.
+ Different theories respecting, 177.
+ Mode of, 375;
+ resolutions respecting, 375;
+ purpose of, 375;
+ an embarrassing question, 479.
+ Vote of States respecting, 483, 515.
+ By only part of States, effect of, 484.
+ Unanimous, could not be required, 484.
+ By nine States sufficient, 485.
+ Pageants in honor of, 540.
+ Public rejoicings in Baltimore at, 543.
+ By New Hampshire, 573, 578.
+ By Virginia, 578;
+ how finally effected, 579;
+ form of, 581.
+ Vitiated by condition, in Madison's opinion, 588.
+ Great struggle over, in New York, 588.
+ See the different States.
+
+ _Records and Judicial Proceedings_ of States, full faith to be given
+ to, in other States, II. 449.
+ Proof and effect of, 449.
+
+ READ, GEORGE, views of, respecting rule of suffrage for House of
+ Representatives, II. 135.
+
+ _Regulation of Commerce_ proposed by New Jersey in 1778, I. 129.
+ Not provided for by the Confederation, 148.
+ Advantages of, not perceived, 179.
+ Origin of, as a national power, 276.
+ Washington's views respecting, 334.
+ Popular meetings in Boston in favor of, 336.
+ Policy of Congress respecting, in 1785-86, 337.
+
+ _Representation_, views of members of Convention respecting, II. 18.
+ In Congress, different views respecting, 36;
+ difficulty in fixing ratio of, 44.
+ As affected by State interests, 43.
+ Original division between States respecting, 50.
+ Under Virginia and New Jersey plans, 105.
+ Great difficulty in adjusting, 108.
+ Difficulty of fixing different basis of, for two houses of Congress,
+ 133.
+ Committee to adjust whole system of, 145.
+ Dr. Franklin's proposal in Congress concerning, 146.
+ Ratio of, in House of Representatives, 147.
+ Of slaves, 149.
+ Compound ratio of, depending on numbers and wealth, proposed, 149;
+ objections to, 151;
+ how to be applied, 156.
+ By numbers, as affected by slaves, 153, 291.
+ And taxation to go together, 156.
+ System of, proposed by Constitution, discussion on in New York, 573.
+
+ _Representatives_, part of the Provincial government, I. 4.
+ In the charter governments, how chosen, 5.
+ Apportionment of, objections to, II. 148;
+ in first House, how made, 148.
+
+ _Representative Government_ familiar to the American people, I. 117.
+
+ _Reprisals_ authorized by the Continental Congress, I. 34.
+
+ _Republican Government_ involved in the effort to make the
+ Constitution, I. 391.
+ Guaranteed to States, II. 177;
+ by Constitution, 458.
+ Guaranty of, to States, object of, 468;
+ meaning of, in America, 469.
+
+ _Republican Liberty_, nature of, II. 8.
+ How to be preserved, 9.
+
+ _Resolutions_ as referred to committee of detail, II. 190.
+
+ _Requisitions_, provision for, under the Confederation, I. 147.
+ Of 1781, 156.
+ Made and not complied with, 174.
+ From 1782 to 1786, how treated, 180.
+ In 1784, 240.
+ In 1785, 242.
+ In 1786, 242.
+ Supply received from, in 1781-1786, 243;
+ inadequacy of, declared by Congress, 245.
+ Effect of, on the proposed revenue system, 244.
+
+ _Revenue_, report of committee of detail respecting, II. 289.
+ Power over, generally conceded to new government, 290.
+ Different systems of, under Confederation, 310.
+ Powers of government, influence of, 311.
+ Power, qualifications of, proposed, 320.
+ From imports, easiest mode of paying expenses of government, 528.
+
+ _Revenues_, of the Confederation, I. 147.
+ Want of power in Confederation to obtain, II. 280.
+ Numerous questions respecting, 280.
+ Collection of, by Congress, 323.
+
+ _Revenue Bills_, privilege of originating, views of members of
+ Convention respecting, II. 221;
+ restricted to House of Representatives, 221.
+
+ _Revenue System of_ 1783, origin and purpose of, I. 175.
+ Modified by Congress, 180.
+ Defeated by New York, 180.
+ Design of, 185.
+ Effect of its proposal, 186.
+ Character of, 224.
+ Under consideration in 1784, 240.
+ How acted on in 1786, 244.
+ New appeal of Congress on the subject of, 245.
+ Every State assents to, but New York, 246.
+ Act of New York concerning, 246.
+ Hamilton's answer to the New York objections to, 247.
+ New York again appealed to respecting, 247;
+ refuses to accede, 248.
+ Action of New York respecting, 343.
+ Final appeal of Congress for, 344.
+ Rejected by New York, 345, 359.
+ Address on, written by Madison, 422.
+
+ _Revolution_, right of, II. 473.
+
+ _Revolutionary Congress_, take up the Articles of Confederation, I.
+ 113.
+ Government of, breaking down, 115.
+ Change in the members of, after 1777, 125.
+ Leading members of, in 1777 and 1778, 126;
+ in 1776, 127.
+ Weakness of, II. 14.
+ See _Congress_.
+
+ _Revolutionary Government_, defects of, I. 55.
+
+ _Rhode Island_, a charter government, I. 5.
+ Resists the claim of the great States to Western lands, 131.
+ Refuses to grant imposts to Congress, 174.
+ Hamilton's answer to, 177.
+ Attempts to pay its quotas in paper money, 242.
+ Refusal of, to grant duties on imposts, 422.
+ Not represented in Constitutional Convention, II. 23, 181.
+ Did not assent to revenue system of 1783, 24.
+ Admitted to Union in 1790, 25.
+ Interests of, attended to by Convention, 26.
+ Had one representative in first House, 149.
+ Ratification of Constitution by, improbable, 181.
+ Reason of, for not attending Convention, 329.
+ Took no part in formation of Constitution, 484.
+ Opposition to Constitution in, peculiarly intense, 598;
+ causes of, 598.
+ Jealous of other States, 598.
+ Principles of founders of, falsely applied, 598.
+ Paper money party in, great power of, 599.
+ Great antagonism in, between town and country, 600.
+ Opponents of Constitution in, ridiculed and scorned, 600.
+ Great want of enlightenment in, 601.
+ Action of General Assembly of, on Constitution, 602.
+ People of, apparently nearly unanimous against Constitution, 602.
+ Final prevalence of better counsels in, 603.
+ Present prosperity of, 603.
+ Attitude of, placed Union in new crisis, 603.
+
+ _Rights._ See _Colonies_.
+
+ ROBINSON, Mr., Speaker of Virginia House of Burgesses, I. 48.
+ Celebrated compliment of, to Washington, 48.
+
+ ROUSSEAU, J. J., political discussions of, alluded to, I. 377.
+
+ _Rule of Apportionment_, proposal to change from land to numbers, I.
+ 241.
+
+ RUTLEDGE, EDWARD, in favor of Constitution, II. 510.
+ Arguments of, in convention of South Carolina, 548.
+
+ RUTLEDGE, JOHN, a member of committee to apportion representatives,
+ II. 148.
+ Motion of, for assumption of State debts, 319.
+ In favor of Constitution, 510.
+
+
+ S.
+
+ _Seat of Government_, action respecting, II. 189.
+ None under Confederation, 268.
+ History of establishment of, 268.
+ Grave questions concerning location of, 274.
+ Impolicy of establishing at New York, or Philadelphia, 591.
+ Embarrassments attending selection of, 604.
+
+ _Sectional Jealousy_, causes and operation of, I. 371.
+
+ SELMAN, captain in the Revolutionary naval force, I. 74.
+
+ _Senate_, reasons for present constitution of, II. 41.
+ Rule of suffrage in, 48.
+ Numerical representation in, favored at first, 49.
+ To hold office during "good behavior" under Hamilton's plan, 100,
+ 105.
+ Members of, chosen for six years, 134;
+ qualifications of, 134, 223.
+ Objects of, 138;
+ how to be attained, 138.
+ Difficulty in fixing basis of, 139.
+ Mr. Baldwin's model of, 139.
+ Fortunately not founded on relative wealth of States, 140.
+ Votes of States respecting, 141;
+ representation in, 165.
+ Advantages of present constitution of, 166.
+ Members of, to be two from each State, 186;
+ to vote per capita, 186;
+ must have been citizens nine years, 211.
+ Slight analogy of, to House of Lords, 215.
+ Equality of votes in, by what States resisted, 217.
+ Choice of President by, in certain events, proposed, 221, 390.
+ Scheme of, tending to oligarchy, 222.
+ May amend revenue bills, 222.
+ Powers of, as at first proposed, 223.
+ Number of members of, origin of, 224.
+ Method of voting in, origin of, 224.
+ Present mode of voting in, advantages of, 228.
+ Vacancies in, how filled, 229.
+ Primary purpose of, 229.
+ Disposition to accumulate power in, 230.
+ Constitution of, great embarrassments respecting, 233.
+ Separate action of, difficult to determine, 234.
+ Consent of, to certain acts of President, necessary, 235.
+ Proposed choice of President by, objections to, 236.
+ Only body fit to have revisionary control over appointments, 239.
+ Ratification of treaties by, 240.
+ Ultimate choice of President taken from, 240.
+ Length of term in, 240.
+ Biennial change in, 241.
+ To try impeachments, 261.
+ Quorum of, 262.
+ President of, 263.
+ May choose president pro tempore, 264.
+ Choice of President by, quorum for, 401;
+ majority necessary to, 401.
+ President pro tempore of, when to act as President of the United
+ States, 403.
+ Proposed appointment of ambassadors and judges by, 410.
+ Foreign relations committed to, 410.
+ Treaty-making power of, 415.
+ May propose treaty to President, 417.
+ Certain controversies between States, proposed to be tried by, 424.
+ Equality of States in, guaranteed by Constitution, 478.
+
+ _Shays's Rebellion_, causes of, I. 266.
+ Progress of, 266, 269.
+ How arrested 270.
+ How acted upon in Congress, 271.
+ Effect of, upon the political state of the country, 273.
+ Abettors of, opposed to Constitution, II. 501.
+
+ SHERMAN, ROGER, one of the committee to prepare Declaration of
+ Independence, I. 50.
+ Opposed to tax on exports, II. 294.
+ Views of, respecting tax on slaves, 304.
+ Motion of, respecting payment of old debts, 321.
+
+ _Slavery_, British government responsible for the existence of, I. 87.
+ Complex relations of, II. 22.
+ Regarded by Southern statesmen as an evil, 155.
+ When and how abolished in States now free, 289.
+ Existed in what States at formation of Constitution, 313.
+ Facts respecting, as influencing judgment on Constitution, 313.
+ A matter of local concern, 313.
+ State laws respecting abolition of, 313.
+ In Northwestern Territory, proposals for excluding, 343.
+ State of, in 1787, 451.
+ Probable duration of, 451.
+ Principle of common law and law of nations respecting, 451, 455.
+ Exclusively a matter of State jurisdiction, 451.
+ Existed in Colonies at very early period, 453.
+ In Massachusetts, Dr. Belknap's article on, 454.
+ Depends wholly on municipal law, 457.
+ Fortunately left to State control, 459.
+ Existence of, unjustly made a reproach on United States, 465.
+
+ _Slaves_, as affecting ratio of representation, II. 19.
+ Control of States over, never meant to be surrendered, 20.
+ Necessarily regarded in forming Constitution, 20.
+ As affecting basis of representation, 46.
+ In fixing ratio of representation, included as inhabitants, 47.
+ Three-fifths rule respecting, whence derived, 48.
+ In fixing ratio of representation, how computed, 147;
+ admission of, proper, 147.
+ Propriety of counting, as inhabitants, in adjusting representation,
+ 150.
+ Rule respecting, under Confederation, 150.
+ As affecting representation, votes respecting, 153.
+ Social and political condition of, anomalous, 155.
+ Number and distribution of, 155.
+ An important element in determining rank of States, 155.
+ As affecting representation and taxation, 157.
+ As subjects of taxation, views of statesmen respecting, 159.
+ Compromise respecting, how to be effected, 163.
+ Extradition of, Pinckney's proposition concerning, 189.
+ Manumission of, a matter of State control, 286.
+ Representation of, a concession by North, why made, 292;
+ Morris's motion respecting, 293;
+ vote of New Jersey respecting, 293.
+ Specific tax on importation of, 304.
+ Word not used in Constitution by design, 305.
+ Ratio of increase of, from 1790 to 1850, 308.
+ Condition of, ameliorated by Constitution, 316.
+ Advancing public sentiment concerning, 316.
+ Colonization of, in Africa, 317.
+ Representation of, an unimportant anomaly, 317.
+ Emancipation of, a local question, 317.
+ Extradition of, under Constitution, history of clause respecting,
+ 450;
+ a necessary provision of Constitution, 451;
+ under New England Confederation of 1643, 453;
+ under Ordinance of 1787, 454;
+ importance of proper understanding of clause respecting, 456;
+ necessity and propriety of clause, 459.
+ Condition of, much better under State control, 462.
+ Increase of, since adoption of Constitution, 465.
+ See _Federal Census_.
+
+ _Slave-Trade_, discountenanced by first Continental Congress, I. 24.
+ How dealt with by the Constitution, 456.
+ Abolished in England, 457, 461.
+ French abolition of, 457.
+ Danish abolition of, 459.
+ Compromise respecting, 460.
+ Legislation against, 460.
+ Discussions respecting, in England, 460.
+ Probable encouragement of, II. 153;
+ embarrassments respecting, 281.
+ State action respecting, 285.
+ Necessity of definite provision respecting, 285.
+ Duty of framers of Constitution respecting, 286.
+ Had been abolished by no nation in 1787, 286.
+ A proper subject for national action, 286.
+ Aspect of, political, 287;
+ moral, 287.
+ Economical importance of, to Southern States, 288.
+ Report of committee of detail respecting, 290.
+ Grave questions concerning, 296.
+ Right to continue, insisted on by what States, 297, 301.
+ Prospective prohibition of, provided for, 304.
+ Concessions respecting, timely, 305.
+ Vote of States respecting, 305.
+ Patriotic course of both sections respecting, 306.
+ Effect of discontinuance of, on Southern States, 308.
+ State rights respecting, before Constitution, 314.
+ Tolerated by European nations at formation of Constitution, 314.
+ Interdicted by ten States before Constitution, 314.
+ Refusal of certain States to grant power to suppress, immediately,
+ 315.
+ Indefinite continuance of, had Constitution not been formed, 315.
+ First extinguished by America, 317.
+
+ _South Carolina_, a provincial government, I. 4.
+ Constitution of, formed, 120.
+ Tender-law of, 253.
+ Appoints and instructs delegates to the Convention, 369.
+ Opposed to equality of suffrage in House of Representatives, II.
+ 138;
+ equal vote of States in Senate, 141, 148, 165, 217.
+ Had five representatives in first House, 149.
+ Opposed to census of free inhabitants, 153;
+ executive holding office during "good behavior," 173.
+ Vote of, respecting citizenship as qualification for office, 209;
+ money bills, 216, 218.
+ Opposed to each State having one vote in Senate, 227.
+ In favor of States paying members of Congress, 259.
+ Refusal of, to submit to tax on exports, 280, 285.
+ Exports of, in one year, 285.
+ Position of, in Convention, respecting slave-trade, 297, 301.
+ Vote of, respecting slave-trade, 305.
+ Vote on Jefferson's resolve concerning Northwestern Territory, 346.
+ Cession by, in 1787, 356.
+ Vote of, on suspension of habeas corpus, 360.
+ Condition of acceptance of Constitution by, 452.
+ Motion for surrender of fugitive slaves made by, in Constitutional
+ Convention, 453.
+ Vote of, respecting citizenship clause in Constitution, 453.
+ Debate in legislature of, on Constitution, 510.
+ Convention in, to vote on Constitution, 511;
+ importance of action of, 542.
+ Ratification of Constitution by, 544;
+ rejoicings at, 544;
+ importance of, 544.
+ Delegates of, responsibility assumed by, 544.
+ A great exporting State, 546.
+ Hesitation of, to concede power to regulate commerce, 546.
+ Amendments to Constitution proposed by, 548.
+ Eighth State to ratify Constitution, 549.
+
+ _Southern States_, views of, respecting regulation of commerce, II.
+ 290.
+
+ _Sovereignty_, of the people, established by the Revolution, I. 379;
+ necessary consequences of declaration of, II. 8.
+ Resides in the people, 38.
+ Powers of, may be exercised by different agents, 377.
+
+ _Spain_, claims the exclusive navigation of the Mississippi, I. 312.
+ See _Mississippi_.
+
+ _Speaker_, of House of Representatives, II. 264;
+ when to act as President, 403.
+
+ _Standing Armies_, jealousy of, I. 81, 90.
+
+ _States_, interests and relations of, before Constitution, II. 5.
+ Devotion of, to republican liberty, 6.
+ Union of, essential to republican liberty, 9.
+ Weakness of, without union, 9.
+ General purposes of, in calling Constitutional Convention, 16.
+ Position of, in Convention, 27.
+ Powers surrendered by, to Confederation, 27.
+ Why represented in Congress, 40.
+ Diverse interests of, as affecting representation, 43.
+ Tendency of, to encroach on federal authority, 51.
+ Proposed control over legislation of, by Congress, 52.
+ Population of, in 1790, table of, 55.
+ Legislation of, control of judicial department over, 66.
+ Admission of, 75, 79, 109, 176, 340, 344, 350, 354.
+ Cessions by, to Union, 76.
+ Republican government guaranteed to, 79, 83, 177, 458.
+ Jealous of general government, 91.
+ Sovereignty of, how reconciled with national sovereignty, 91.
+ Plan to abolish, 92.
+ To make partial surrender of power under Virginia plan, 95.
+ Sovereignty of, preserved under New Jersey plan, 95.
+ Conflicts of, with nation, probable, under Virginia plan, 102, 103.
+ Struggle between large and smaller, respecting representation, 104.
+ Proposed equalization of, 108.
+ Populations of, at formation of Constitution, 116.
+ Relative rank of, at formation of Constitution, 117.
+ Conflict among, as to national and federal systems, 117.
+ Danger of annihilation of sovereignty of, by national government,
+ 128, 377.
+ Danger of alliances of, with foreign powers, 136.
+ Preservation of, in Congress, conceded to be necessary, 139.
+ Divided respecting constitution of Senate, 145.
+ Jealousy among, 150.
+ Western, views of members respecting, 150.
+ Slave and free, index of wealth of, 157.
+ Wealth of, not measured by land, 160.
+ Position of, in Convention, respecting slaves, 161, 162.
+ Wealth of, for purpose of taxation, determined by inhabitants, 163.
+ Smaller, concession to, in constitution of Senate, 166.
+ Free and slave, populations of, compared, 168.
+ Relation of, to Confederation, 179.
+ Whether Constitution could be ratified by government of, 180.
+ Voting by, history of practice of, 227.
+ Equal representation of, in Senate, just, 233.
+ Union desired by, from different motives, 303.
+ Commercial legislation of, under Confederation, various, 310.
+ Revenue and paper-money systems of, under Confederation, various,
+ 310.
+ Rights guaranteed to, by Constitution, 314.
+ Power of, over slave-trade, anterior to Constitution, 314.
+ Ports of one, not to be preferred to those of another, 324.
+ Compacts between, outside of Articles of Confederation, 347.
+ New, temporary governments for, Madison's motion respecting, 351.
+ Admission of, number of votes requisite for, 352;
+ by dismemberment of State, 352;
+ by junction, 354;
+ difference in cases of, 357;
+ provisions for, general, 358.
+ Restraints on political power of, 362.
+ Issuing of bills of credit prohibited to, 364.
+ Laying of duties and imposts by, 368.
+ Cannot lay duty on tonnage, 370.
+ Keeping of troops or ships of war by, 371.
+ Agreements by, with another State or foreign power, 371.
+ When may engage in war, 371.
+ Governments of, how far supreme, 377.
+ May be multiplied indefinitely under Constitution, 383.
+ Levying war against, not treason against United States, 385.
+ Certain controversies between, proposed to be tried by Senate, 424.
+ Constitutional restrictions on, 432.
+ Laws of, constitutionality of, how determined, 439.
+ Courts of, not likely to administer justice to foreigners, &c., 442.
+ Different, controversies between citizens of, 442;
+ grants of lands by, jurisdiction of cases respecting, 444.
+ A party to a suit, jurisdiction in cases of, 444.
+ Foreign, jurisdiction in cases of, 444.
+ Full faith given to acts, &c. of, 449.
+ Have exclusive regulation of domestic institutions, 451.
+ May exclude foreigners, 457.
+ Republican government guaranteed to, object of, 468.
+ Domestic violence in, application to general government in case of,
+ 469.
+ Competency of, to abolish constitutions, 469.
+ Must have executive and legislature, 470.
+ Protection of, against domestic violence, 472.
+ Equality of, in Senate, for ever guaranteed by Constitution, 478.
+ Refusal of, to comply with requisitions of Congress, 572.
+ See _New States_.
+
+ _State Constitutions_, formation of, I. 116.
+
+ _State Governments_, how formed, I. 36.
+
+ _State Sovereignty_, early assertion of, I. 90.
+
+ _Stop Laws._ See _Debts_.
+
+ STORY, JOSEPH, views of, respecting President's power to adjourn
+ Congress, II. 420.
+
+ _Suffrage, Rule of_, Governor Randolph's resolution respecting, II.
+ 35.
+ Change in, opposed by Delaware, 36.
+ In Continental Congress, 42.
+ In Confederation, 42.
+ In Senate, 48.
+ For House of Representatives, great debate on, 135.
+ According to Virginia plan, 145.
+ Different in different States, 174, 198.
+ Not universal in any State, 471.
+
+ SULLIVAN, General, president of New Hampshire Convention, II. 541.
+
+ SULLIVAN, JAMES, Governor of Massachusetts, II. 541.
+
+ _Superintendent of the Finances_, appointed, I. 174.
+ See ROBERT MORRIS.
+
+ _Supremacy_ of United States, meaning and scope of, II. 376.
+ Of States, extent of, 377.
+ Of Constitution, as affecting national growth, 383.
+
+ _Supreme Court_, tenure of office of, II. 67.
+ Judges of, not removable by address, 68, 73;
+ compensation of, 68;
+ by whom appointed, 68.
+ To determine constitutional questions, 74.
+ Functions of, compared with those of State courts, 74.
+ Judges of, proposed appointment of, by Senate, 223, 230, 410.
+ Appointment of, proposals concerning, 234.
+ Sole interpreters of Constitution, 380.
+ Judges of, to be nominated by President, 418;
+ tenure of office and salaries of, 423.
+ One, under Constitution, 423.
+ Original and appellate jurisdiction of, 424.
+ Appellate jurisdiction of, ambiguity concerning, 428.
+ Doubts about conferring power upon, to declare law unconstitutional,
+ 434.
+
+
+ T.
+
+ TALLEYRAND, Prince, opinion of, respecting Hamilton, I. 410.
+
+ _Taxation_, right of, denied to Parliament, I. 20.
+ How distinguished from regulation of trade, 20.
+ Inseparable from representation, 20, II. 157.
+ Difficulty of applying combined rule of wealth and numbers to, 158.
+ Report of committee of detail respecting, 290.
+ By general government, Mason's objections to, 557.
+ See _Colonies_.
+
+ _Taxes_, odious to the people of United States, I. 180.
+ Power of Congress to collect, II. 322.
+
+ _Tender_, State laws respecting, restraint on, II. 365.
+
+ _Tender Law_ of Massachusetts, I. 268.
+ See _Debts_.
+
+ _Territory_, power of Congress over, under the Confederation, I. 141.
+ Authority of Congress over, under Constitution, II. 340;
+ purpose of provision respecting, 355;
+ diverse views concerning, 358.
+ See _Western Territory_ and _Northwestern Territory_.
+
+ _Territorial Governments_, power to frame, in Ordinance of 1787, II.
+ 345.
+
+ _Theory_, danger of adhering too firmly to, II. 129.
+
+ THOMPSON, CHARLES, Secretary of first Continental Congress, I. 14.
+
+ TICKNOR, GEORGE, cited for a saying of Jefferson concerning the
+ Revolutionary Congress, I. 64;
+ for a saying of Talleyrand about Hamilton, 410.
+
+ _Tonnage_, duty on, States prohibited to lay, II. 370;
+ proposed exception respecting, 370.
+
+ _Tories_, how dealt with by Continental Congress, I. 36;
+ in New Hampshire, 65.
+ Washington's opinion respecting, 65.
+ Movements of, in the neighborhood of New York, 66;
+ how met by Washington, 66.
+ Steps taken by Congress to disarm, 68.
+ Misunderstanding respecting, between Washington and Congress, 69.
+ Subject referred to local authorities, 72.
+ Relations of persons and property of, to the Union, 251.
+
+ _Trade_, inter-colonial, before the Revolution, I. 9.
+ Regulation of, by Parliament, distinguished from taxation, 20.
+ With Colonies prohibited by Parliament, December, 1775, 38.
+ See _Colonies_, _Commerce_, _Continental Congress_, and
+ _Parliament_.
+
+ _Treason_, definition of, in Constitution, origin and purpose of, II.
+ 384.
+ Nature of evidence of, 386.
+ Punishment of, to be declared by Congress, 386;
+ how limited by Constitution, 386.
+ President's power to pardon, different views respecting, 414.
+
+ _Treasury Department_, first established, I. 35.
+
+ _Treaty_ of amity and commerce with France, Sweden, and the
+ Netherlands, I. 279.
+ Negotiation for, with the Netherlands, 280;
+ with Sweden, 281.
+
+ _Treaty of Alliance_ with France, I. 156.
+
+ _Treaty of Peace_ signed and ratified, I. 155, 187, 235, 237.
+ Objects secured by, 249.
+ How violated by certain States, 254, 257.
+ Southern boundary of the United States fixed by, 312.
+ Accompanied by a secret article, 312, 313.
+ Question respecting, II. 415.
+
+ _Treaty Power_ under the Confederation, I. 325.
+
+ _Treaties_, supreme law of land, II. 170, 372, 374.
+ Proposition that Senate should make, 223.
+ Negotiation of, by numerous body, embarrassing, 232.
+ Making of, proposals concerning, 234.
+ Provision respecting, origin of, 240;
+ how modified, 414.
+ Rule of Confederation respecting, 416.
+ May be proposed by Senate, 417.
+ Jurisdiction over cases arising under, 430.
+ Cases arising under, how settled, 440.
+ Power to make, under Confederation, 440.
+
+ _Trial by Jury_, of the vicinage, one of the rights of the Colonies,
+ I. 23.
+ Under Constitution, II. 424.
+ Provision for, in civil cases, not in Constitution originally, 427;
+ supplied by amendment, 427.
+ Guaranty of, required by many States, 429.
+ For crimes, provisions respecting, 431.
+ Omission to secure, a strong argument with some against
+ Constitution, 498.
+
+ TUCKER, GEORGE, cited about Madison, I. 421.
+
+ TYLER, JOHN, opposed to Constitution, II. 506.
+
+
+ U.
+
+ _Union_, origin of, I. 3.
+ Unknown to the colonial condition, 7.
+ Power to form, a result of the Revolution, 8.
+ Proposal of, in 1754, 8.
+ Proposed in 1773, 10.
+ Virginia recommends, 11, II. 12.
+ As established by the Confederation, I. 142.
+ Saved by the proposal of the revenue scheme, 188.
+ Necessary to preserve the good faith of the country, 189.
+ Of the people, idea of, 373.
+ Change in character of, II. 4.
+ Necessarily republican, 10.
+ Preservation of, essential to independence of States, 10.
+ Purposes of, at first indefinite, 12.
+ Previous history of, important, 13.
+ "Exigencies of," 13;
+ how only to be provided for, 19.
+ Objects of, embraced in two classes, 13;
+ how ascertained, 13;
+ different views respecting, 39.
+ Proposed power in, to protect and uphold governments of States, 79.
+ Dissolution of, Madison's views respecting, 136;
+ Hamilton's views respecting, 136;
+ at one time probable, 140.
+ General interests of, power to legislate for, 170.
+ Success of, to what attributable, 380.
+ Sovereignty of, and of States, no conflict between, 380.
+ Capacity of, for territorial expansion, cause of, 381.
+ Theory of, respecting domestic institutions of States, 451.
+
+ "_United Colonies_," term of, first adopted, I. 33.
+
+ _United States of America_, title of, adopted, I. 52, 142.
+
+ _United States_, character of, at stake, I. 179.
+ Laws and treaties of, supreme law of States, II. 170, 372.
+ Guaranty by, of State institutions, 177.
+ Became proprietor of crown lands, 352.
+ Title of, to vacant lands, 357.
+ Officer of, not to accept present, &c. from foreign king, &c., 362.
+ Resolutions respecting supremacy of government of, 372, 373.
+ Supremacy of, meaning and scope of, 376.
+ Government of, unlike any other, 379;
+ determines its own powers, 379;
+ safeguard of, 379;
+ success of, to what attributable, 379.
+ Constitution, no impediment to growth of, 383.
+ Treason against, definition of, 385.
+ Importance of preserving federal character of government of, 392.
+ Relation of government to citizens of, 432.
+ A party to a suit, jurisdiction of cases of, 444.
+
+
+ V.
+
+ _Valuation._ See _Land_ and _Contribution_.
+
+ _Vermont_, provision for admission of, II. 353.
+ Within asserted limits of New York, 353.
+
+ _Vessels_, entry and clearance of, II. 324.
+ Payment of duties by, 324.
+
+ _Veto_, an essential power, II. 57.
+ Bill may be passed notwithstanding, 264.
+ Of President qualified, 265.
+ Of king of England absolute, 265;
+ how signified, 265;
+ in disuse since William the Third, 266.
+ History of, in Constitutional Convention, 267.
+ Meaning of "two thirds" in provisions respecting, 267.
+ Power of, proposed to be given to Council of Revision, 438.
+
+ _Vice-President, ex officio_ President of Senate, II. 264.
+ Has only casting vote in Senate, 264, 396.
+ Choice of, embarrassments respecting, 390.
+ Reasons for having, 395.
+ Ultimate election of, by Senate, 396, 401.
+ When to act as President, 400.
+ Changes in appointment of, 400.
+ Qualifications for, 401.
+
+ _Virginia_, a provincial government, I. 4.
+ Advises a Continental Congress, 11.
+ Elects delegates, 12.
+ Constitution of, formed, 120.
+ Effect of claim of, to Western Lands, 132.
+ Cedes the Northwestern Territory, 137, 295.
+ Repeals her act granting imposts, 175.
+ Stop-law of, 253.
+ Action of, concerning Western posts, 258.
+ Opposes the surrender of the Mississippi, 315.
+ Action of, leading to a general commercial convention, 340, 343.
+ Appoints and instructs delegates to the Convention, 367.
+ Measures of, respecting commerce, 423.
+ First to declare for Union, II. 12.
+ Plan of government proposed by, 89;
+ Hamilton's doubts respecting, 99;
+ inconsistency in, 101, 103;
+ reported to Convention, 109;
+ vote on, 109;
+ chasm in, 133.
+ Opposed to election of Senators by State legislatures, 135;
+ to equality of suffrage in House of Representatives, 138;
+ to equality of States in Senate, 141, 148, 165, 217.
+ Had ten Representatives in first House, 149.
+ In favor of census of free inhabitants, 153;
+ of executive holding office during "good behavior," 173.
+ Vote of, respecting citizenship as qualification for office, 209;
+ money bills, 216, 218.
+ Opposed to each State having one vote in Senate, 227;
+ to impeachments being tried by Senate, 262;
+ to taxing exports, 296.
+ Vote of, respecting slave-trade, 305.
+ Cession by, in 1784, 342.
+ Strong opposition to Constitution in, 504.
+ Statesmen of, 504.
+ Character of people of, 504.
+ Great influence of Washington in, 505.
+ Effect of action of New Hampshire on, 510.
+ Convention of, meets at Richmond, 510, 549;
+ parties in, nearly balanced, 529, 568;
+ anxiety respecting action of, 542, 549;
+ eminence of members of, 551;
+ responsibility resting on, 551;
+ discussion on Constitution in, 554.
+ Had ratified Constitution before news from New Hampshire, 578.
+ Convention of, final propositions of friends of Constitution in,
+ 579.
+ Ratification of Constitution by, how finally effected, 579.
+ Form of amendments and Bill of Rights proposed by, 581.
+ Address prepared by opponents of Constitution in, 582.
+ Adoption of Constitution by, rejoicings at, 582.
+
+ _Virginia and Maryland_, efforts of, to regulate the trade of the
+ Potomac and the Chesapeake, I. 341.
+
+ _Virginia Reservation_, note on, I. 296.
+
+ _Voters_, qualifications of, in different States, II. 198.
+
+
+ W.
+
+ _War_, power to declare, proposed to be given to two branches of
+ Congress, II. 231.
+ To be declared by Congress, 332, 413.
+ When States may engage in, 371.
+ Ships of, not to be kept by States in time of peace, 371.
+ And peace, power of President to make, 411.
+ To be prosecuted by President, 413.
+
+ WASHINGTON, appointed and commissioned commander-in-chief, I. 33.
+ Arrives at Cambridge, 33.
+ Mode of his appointment as commander-in-chief, 41.
+ Previous history and character of, 41.
+ Embarrassments of, in the early part of the war, 55.
+ Opinions and actions of, respecting Tories, 65.
+ Urges Congress to establish prize court, 75.
+ On the necessity for a standing army, 91.
+ Leaves Boston for New York, 91.
+ Compelled to abandon New York, 91.
+ Retreats through New Jersey, 96.
+ Complains of his situation, 96.
+ Asks for extraordinary powers, 100.
+ Dictatorial powers conferred on, 100;
+ apology for, 101.
+
+ Requires oath of allegiance to United States, 106.
+ Proclamation by, at Morristown, in 1777, 106.
+ Powers conferred on, in 1776, jealousy respecting, 106.
+ Opinion of, respecting an oath of allegiance, 108.
+ Third effort of, to raise a new army, 109.
+ Embarrassments of, 110.
+ Thwarted by the local authorities, 112.
+ Adheres to a plan for the campaign, 112.
+ Anxious about the falling off of Congress, 127.
+ Letters of, to the States, in 1782, 157;
+ to the President of Congress, 158, 162.
+ Situation of, 158.
+ Warns Congress respecting the officers, 167.
+ Painful position of, 167.
+ Proceedings of, upon the Newburgh Addresses, 168.
+ On the want of a revenue power, 182.
+ Relations of, to the country during the war, 200.
+ Opinions of, at the close of the war, 200.
+ Address of, to the States, on resigning, 201.
+ On a peace establishment, 218, 219.
+ Resigns as commander-in-chief, 235.
+ Address to, 235.
+ On the insurrection in Massachusetts, 274.
+ Plans communications with Western settlements, 310.
+ Opinions of, respecting the navigation of the Mississippi, 311, 315.
+ Opinions of, in 1785, on the state of the country, 333.
+ Connection of, with the plan of a general Convention, 341.
+ Pressed to attend the general Convention, 365, 397.
+ On the idea of a monarchical government for the United States, 370.
+ At Mount Vernon, 393.
+ Views of, on public affairs, 394.
+ Declines to attend the general Convention, 399;
+ reconsiders and attends, 399.
+ Reception of, at Philadelphia, 401.
+ Placed in the chair of the Convention, 401.
+ Opinions of, 401.
+ Character of, as a statesman, 404.
+ Meets the Alexandria commissioners at Mount Vernon, 425.
+ Failure of civil power to sustain, II. 14.
+ Difficulty experienced by, as President, in preserving neutrality
+ and excluding foreign influence, 82.
+ In Convention, confined himself to duties of presiding officer, 213.
+ Suggestion of, respecting ratio of representation in Congress,
+ adopted, 213.
+ In favor of tax on exports, 284.
+ Early nominated for President, 391.
+ Received no pay as commander-in-chief, 405.
+ Practice of, respecting cabinet, 409.
+ Leading man in Constitutional Convention, 476.
+ Tradition respecting words of, before signing Constitution, 487.
+ Views of, respecting consequences of rejection of Constitution, 487.
+ Unbounded confidence of people in, 498.
+ Great influence of, in Virginia, 505.
+ Copies of Constitution sent by, with expression of opinion, 509.
+ Opinion of, respecting action of Maryland on Constitution, 542.
+ Not a member of Virginia convention, 551.
+ Justifies course of Federalists in New York convention, 590.
+ Administration of, topics appropriate to history of, 604.
+
+ _Washington, City of_, an object of affection and pride, II. 277.
+ See _Seat of Government_.
+
+ WEBSTER, DANIEL, compared with Hamilton, I. 419.
+
+ WEBSTER, NOAH, recommends a new government, I. 350.
+
+ WEBSTER, PELATIAH, recommends a general Convention, I. 350.
+
+ _Weights and Measures_, standard of, fixed by Congress, II. 328.
+
+ _West Florida_, secret article respecting, in the Treaty of Peace, I.
+ 312.
+
+ _West Point_, academy at, suggested, I. 218.
+
+ _Western Lands_, claims of the States to, I. 131.
+ Conflicting interests of the States concerning, 132.
+ Surrender of claim to, by New York, 133.
+ Cessions of, urged by Congress in 1780, 134.
+ Motives of the cession of, 137.
+ Surrender of claim to, by Virginia, 137.
+ Become the bond of the Union, 140.
+ Power of Congress over, under the Confederation, 141.
+
+ _Western Posts._ See _Military Posts_.
+
+ _Western Settlements_, position of, after the peace, I. 309.
+ Connection of, with the Atlantic coast, 310.
+ Alarm of, about the Mississippi, 318.
+
+ _Western States_, prospective character of, II. 300.
+ Vast resources of, 310.
+
+ _Western Territory_, controversy respecting, before the adoption of
+ Articles of Confederation, I. 291.
+ Cessions of, invited, 292;
+ Congress declares certain trusts respecting, 293.
+ States to be formed in, 293.
+ Power of Congress to deal with, 293.
+ Cession of, by New York, 293;
+ by Virginia, 295.
+ Further legislation respecting, and further trusts declared, 296.
+ Admission of States from, 298.
+ Further cessions of, urged, 299.
+ Proposition by Rufus King to exclude slavery from, 299.
+ Cession of, by Massachusetts, 299;
+ by Connecticut, 300.
+ Ordinance for disposing of lands in, 300.
+ Cessions of, by Virginia, modified, 300;
+ by South Carolina, 301;
+ by North Carolina, 301;
+ by Georgia, 301.
+ See _Northwestern Territory_.
+
+ _West Indies_, trade with, II. 309.
+
+ _Whale Fishery_ in Massachusetts before the Revolution, I. 135.
+
+ _Williamsburg_, convention at, I. 12.
+
+ WILLIAMSON, HUGH, views of, respecting rule of suffrage for House of
+ Representatives, II. 135;
+ money bills, 218.
+
+ WILSON, JAMES, birth and career of, I. 462.
+ Sent to the Constitutional Convention, 462.
+ Services of, 462.
+ Made a justice of the Supreme Court of the United States, 465.
+ Death of, 465.
+ His defence of the Constitution, 465.
+ In favor of larger House of Representatives, II. 213;
+ tax on exports, 284.
+ One of the ablest framers of the Constitution, 520.
+ Position and arguments of, in Pennsylvania convention, 521.
+ Views of, respecting Bill of Rights, 522.
+
+ WOLCOTT, OLIVER, influence of, in Connecticut convention, II. 529.
+
+
+ Y.
+
+ _Yeas and Nays_, one fifth of members present in either House of
+ Congress may require, II. 263.
+ To be taken on passing bill over veto, 265.
+
+ _Yorktown_, Revolutionary Congress assembles at, I. 113.
+
+
+
+
+ THE END.
+
+
+ * * * * *
+
+Transcriber's Notes:
+
+Obvious spelling and punctuation errors have been repaired, but period
+spellings and valid alternative spellings present in the original were
+retained; for example: maleadministration, malepractice and
+malpractice, Brearly and Brearley, etc.
+
+Hyphenation variations in the original were retained.
+
+Change in format for Article headings beginning P. 629 retained as in
+the original.
+
+Changes not covered above are:
+
+Contents erroneously states Index begins on P. 623. Corrected to P. 633.
+
+P. 298 "Southern members." original reads "Southern membe"
+
+P. 605 Duplicate heading "Appendix" removed.
+
+P. 622 "Revision and Control"; original reads "Controul."
+
+P. 623 "Members from two-thirds"; original reads "twothirds."
+
+
+
+
+
+End of the Project Gutenberg EBook of History of the Origin, Formation, and
+Adoption of the Constitution of the United States, Vol. 2, by George Ticknor Curtis
+
+*** END OF THE PROJECT GUTENBERG EBOOK 40679 ***
generated by cgit v1.2.3 (git 2.25.1) at 2026-06-02 01:57:42 +0000