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diff --git a/40679.txt b/40679.txt deleted file mode 100644 index 10a9ba4..0000000 --- a/40679.txt +++ /dev/null @@ -1,22261 +0,0 @@ -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 - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 - with notices of principle framers - -Author: George Ticknor Curtis - -Release Date: September 5, 2012 [EBook #40679] - -Language: English - -Character set encoding: ASCII - -*** START OF THIS PROJECT GUTENBERG EBOOK HISTORY OF CONST. OF U.S., VOL 2 *** - - - - -Produced by Curtis Weyant, JoAnn Greenwood, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by the Posner Memorial Collection -(http://posner.library.cmu.edu/Posner/)) - - - - - - -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. Sec. 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 _Encyclopedie Methodique_, 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. Sec. 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. Sec. 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. Sec. 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. -Sec. 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. Sec. 4 of the Constitution. - -[181] Art. VI. Sec. 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. Sec. 10 of the first draft. Elliot, V. 378. - -[186] Massachusetts and South Carolina in the negative. - -[187] See the discussion on Art. VI. Sec. 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. Sec. 5 of the Constitution. - -[192] Elliot, V. 406. Constitution, Art. I. Secs. 5, 6. - -[193] Elliot, V. 407. Constitution, Art. I. Sec. 5. - -[194] Elliot, V. 407. Constitution, Art. I. Sec. 5. - -[195] Elliot, V. 507, 520. Constitution, Art. I. Sec. 3. - -[196] Ibid. - -[197] Art. I. Sec. 2. - -[198] Constitution, Art. I. Sec. 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. Sec. 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 (Sec. 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 L600,000, 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. Sec. 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. Sec.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. Sec. 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. Sec. 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. Sec. 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. Sec. 8, clause 12. - -[260] Elliot, V. 443. - -[261] Art. VII. Sec. 1 of the first draft. Elliot, V. 379. - -[262] Ibid. 440. - -[263] Aug 18. Elliot, V. 445. - -[264] Constitution, Art. I Sec. 8, cl. 16. - -[265] Art. I. Sec. 8, cl. 15. Ibid. p. 467. - -[266] Constitution, Art. I. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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, Sec. 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. Sec. 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. Sec. 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, Secs. 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. Sec. 4. - -[377] Elliot, V. 157. - -[378] Elliot, V. 376. - -[379] Elliot, V. 530-532. - -[380] Constitution, Art. I Sec. 9. - -[381] Ibid. Art. I. Sec. 3. - -[382] Elliot, V. 532. - -[383] Ibid. 551, 552. Constitution, Art. I Sec. 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 (Osnabrueck), 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 L260,000 (currency), and then -showed that, in the three States of Massachusetts, New York, and -Pennsylvania, L160,000 or L180,000 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 THIS PROJECT GUTENBERG EBOOK HISTORY OF CONST. 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