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HISTORY
ORIGIN, FORMATION, AND ADOPTION
OF THE
CONSTITUTION OF THE UNITED STATES;
WITH
‘NOTICES OF ITS PRINCIPAL FRAMERS.
BY
GEORGE TICKNOR CURTIS. I‘? ' 7 "
IN TWO 'VOLUMES.
VOLUME II.‘
NEW'YORK:
HARPER AND BROTHER&
FRANKLIN SQUARE.
1858.
Entered according to Act of Congress, in the year 1858, by
GEORGE T. CURTIS,
in the Clerk’s Oﬁice of the District Court of the District of Massachusetts.
CONTENTS
OF
VOLUME sEooND.

BOOK IV.
FORMATION OF THE CONSTITUTION.
CHAPTER 1.
PRELIMINARY CONSIDERATIONS. -- ORGANIZATION OF THE CoN-
VENTION.—-—POSITION OF THE STATES. —-RULE OF INVESTIGA~
TION.
Page
Explanation of the Author’s Plan . . . . . . . 3, 4
Preservation of Republican Government . . . I . 5- 7
Nature of American Freedom . . . . . . 7-9
Its Dependence upon the Union . . . . . . 9, 10
Intention of the Framers of the Constitution . . . . i . ‘11
Hamilton’s Purposes . . . . .. . . . . 11
The Confederation oﬁicially condemned v. . . . . 11, 12
Purposes of the States . . . . . . . . 12
The declared Objects of the Convention 4. . . . ' . 13
Nature of the previous Union . . . . . . 14, 15
General Purpose of the People . . . . . . . 16
t Powers of the Convention . . . . . . . . ' 17
Opposite Views of the Members . . . . . . . 1'8
‘Presence of Slavery in the States . . . . . . 19, 20
The Slavesiin 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
iv CONTENTS.
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 PowEn.-BAs1s or REPRE-
SENTATION AND RULE OF SUFFRAGE.-—-—POWERS or LEGISLA-
TION.
Randolph’s Outline of a Constitution . . . . . . 32
Referred to Committee of the Whole . . . . . . 32
Idea of a National Government . . . . . . 32-35
Rule of Suﬂ'rage in the Legislature . . . . ' . 35
First Parties in the Convention . . . ' ' .- . 36
Representatives in one Branch to be chosen by the People . . 37 1
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, 5O
' 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 . . . . ' t ' 60 >
To be made supreme . . . . - . . . . 65
Its Jurisdiction . ' . . . . . . . . . 65
Tenure of the Judicial Oﬁice . . . . . . i . . 67
Note on the Judicial Tenure . . . . .' . . ' 69
CONTENTS. v
CHAPTER IV.
ADMISSION OF NEW STATES.—-GUARANTY OF REPUBLICAN Gov-
ERNMENT.—P0WER OF AMENDMENT.-OATH To SUPPORT THE
NEW SYSTEM. — RATIFICATION.
The Union destined to be enlarged . . . . . . 75
J eﬂ'erson’s Measure for the Admission of New States in 1 784 ' . 76
“rant of Power in the Confederation . . . . . . 7 7
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 WVhole . . . . . 86
CHAPTER V.
ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.—
HAMILToN’s PROPOSITIONS. — MADISCN’S VIEW OF THE NEW
JERSEY PLAN.
General Character of the Virginia Plan . . . . . . 89
Diﬂiculties 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 \Vhole . . . . 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 Eﬂ'ect on the smaller States . . . . . 107
Declares the Representation to be the great Diﬂiculty . . . 108
The States must be represented proportionally . . . . 109
The Virginia Plan again adhered to L . . . . . 109
Note on the Opinions of Hamilton . . . . . 110
vi v 1 CONTENTS.
CHAPTER VI.
CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS. —
DIVISION OF THE LEGISLATURE INTO Two CHAMBERs.-DIs-
AGREEMENT OF THE STATEs ON THE NATURE OF REPRESENTA-
TION IN THE Two BRANcIIEs.— TIIREATENED DIssoLUTION OF
THE UNION.
Different Magnitudes of the States . . . . . . . 116
Inequalities in other Respects . . . . . . . 11 7
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
Diﬁiculties 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
\Vhy 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 . . . Y . . 141
Consequences of a Failure to form a Constitution . . p. 142 - 144
CHAPTER VII.
FIRST GRAND COMPROMIsEs OF THE CONSTITUTION. - POPULATION
OF THE STATEs ADOPTED As THE BAsIs 0F REPRESENTATION IN
THE HoUsE.-—RULE FOR COMPUTING THE SLAvEs. —EQUALITY
0F REPRESENTATION OF THE STATEs ADOPTED FOR THE SENATE.
Appointment of a Committee of Compromise . . V . . 145
Representation adjusted by the Committee . . . . . 146
CONTENTS. vii
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
‘T est 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 N on-slaveholding States com-
pared . . . . . . . . . . . 168
CHAPTER VIII.
POWERS or LEGISLATION.--CoNsTITUTIoN AND CHOICE OF THE
EXECUTIVE. -- CoNSTITUTIoN or THE JUDICIARY. —-ADMISSION
or NEW STATES. -- COMPLETION OF THE ENGAGEMENTS or CON-
GRESS. - GUARANTY ~or REPUBLICAN‘ CoNsTITUTIoNS. — OATH
To SUPPORT THE CONSTITUTION’. -- RATIFICATION. -- NUMBER
OF SENATORS. —- QUALIFICATIONS FOR OFFICE. -— SEAT OF Gov-
ERNMENT.
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 Oﬂice . . . . . . . . . 173
Right of Suﬁ'rage 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 . . . . . . .. . . 17 7
. Oath to Support the Constitution . -. . . . . . 17 7
Ratiﬁcation . . . . . . . . 177
Objects of a Popular Ratiﬁcation . . . . . . 17 7 '-184
Constitution to be submitted to the Congress . . . . . 185
Number of Senators . . . . . . . . . 186
vﬁi CoNTENTs
Qualiﬁcations for Oﬁice . . . .
Property Qualiﬁcation . . . .
Seat of the National Government
‘General Pinckney’s Notice respecting Slaves and Exports
Resolutions sent to Committee of Detail
CHAPTER IX.
186
. v187
. 189
. 189
190
REPORT OF THE COMMITTEE OF DETAIL. — CONSTRUCTION OF THE
LEGISLATURE. —TIME AND PLACE OF ITS MEETING.
Power conﬁded to the Committee of Detail
Their Draft of a Constitution
Right of Suﬁ'rage
Foreign-born Inhabitants
Immigration to be encouraged
Qualiﬁcations for Voting
Power of Naturalization .
Qualiﬁcations for Oﬁice
Spirit of the Constitution
Ratio of Representation
Money Bills . . .
Qualiﬁcations of Senators
Number of Senators . .
Method of Voting in the Senat
Vacancies in the Senate and House
Powers of the Senate . . . . .
Senatorial Term - . . .
Disqualiﬁcations of Members of both Branches
Parliamentary Corruption
Executive Inﬂuence
Time and Place for Elections .
Pay of Members .
Impeachments
Quorum of each House
Separate Powers of each House
President of the Senate .
Enactment of Laws
. 193
194
. 194
195-198
. 197
198— 202
. 199
203 - 210
. 211
212-214
. 215 —222
223,224
. 224 — 226
226 — 228
. 229
. 229 — 240
. 240- 242
242 et seq.
. 242 — 244
244-256
. 257
258,259
. 260 — 262
262
President’s Negative
Seat of Government
Session of Congress
. 262— 263
263
. 264
265-268
. 268-277
277,278
CONTENTS. 1X
CHAPTER X.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED. —'I‘RE Pow-
ERs OF CONGRESS.——THE GRAND CoMPRoMIsEs OF THE CON-
STITUTION 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.
Propositition of Compromise . . . . . . . 301
Arrangement of the Compromise . . . . . . . 303
Value of the Compromise . . . 307
Beneﬁts of the Revenue and Commercial Powers . . . . 309
CIIAPTER XI.
REPORT OF THE COMMITTEE OF DETAIL, CoNTINUED.—TIIE RE-
MAINING 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-Oﬁices 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
voL. II. b
X CONTENTS.
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. — SUPREM-
ACY OF THE NATIONAL GOVERNMEMT.-—DEFINITION AND PUN-
ISHMENT 0F 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
CI’IAPTER 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
CONTENTS. Xi
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 — 41 7
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.-FORMA-
TION 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 . 44 7, 448
Privileges of Citizenship in all the States . . . . . 448
Eifect of Records . . . . . . . . . 449
Fugitives from Justice . . . . . . . 449, 450
\Fugitives from Service . . . . . . . 450-467
X11 CONTENTS.
CHAPTER XVI.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED. -— GUARANTY
OF_ REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY. --
OATH To SUPPORT THE CONSTITUTION. -MODE 0F AMEND-
MENT. -— RATIFICATION AND ESTABLISHMENT OF THE CONSTI-
TUTION.-- SIGNING BY THE MEMBERS OF THE CONVENTION.
Purpose of the Guaranty of Republican Government .
Meaning of the Guaranty . . . .
American Senseiof a “ Republican ’f Government
Amendment a Conservative Element
Distinction between Amendment and Revolution
Settlement of the Mode of Amending the Constitution
Restrictions on the Power of Amendment .
Oath to support the Constitution . . .
Establishment of the Constitution provided for
Signatures of the Delegates . .
The Issue presented . . . . .
BOOKV.
ADOPTION OF THE CONSTITUTION.
CHAPTER I.
468
. 469
471
. . 473
478-474
. 474-477
477,478
. 478
. 479-485
. 485-487
487
GENERAL RECEPTION OF THE CONSTITUTION. —- HOPES OF A RE-
UNION WITH GREAT BRITAIN. --ACTION OF THE CONGRESS. -
STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA,
SOUTH CAROLINA, MARYLAND, AND NEW HAMPSHIRE. -- AP-
POINTMENT OF THEIR CONVENTIONS.
Public Anxiety . . . . .
Rumors about the Bishop of Osnaburg
Scheme of the Tories . . -. . .
Publication of the Constitution .
Its Friends and Opponents . . .
Position of the People . . . . .
. 491
. 492
499,494
495
. 495,496
497,498
CONTENTS.
Reception of the Instrument in Congress
Action upon it . .
Reception in Massachusetts .
Reception in New York
Reception in Virginia .
Jeﬁ'erson’s Opinion . . .
Course recommended by J etferson
Washington’s Exertions . . . .
Patrick Henry’s Course in the Legislature
Debate in the Legislature of South Carolina
Action of the Legislature of Maryland
Luther Martin’s Address . .
State of Opinion in New Hampshire
The real Crisis anticipated
Chances for the Constitution
Uncertainty of the Result .
CHAPTER II.
. 499
500
. 501
502 -'—504
505,506
506,507
. 508
509
. 510
511
_ . 512
512-514
. 514
515
. 516
517
RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY,
GEORGIA, AND CONNECTICUT, WITHOUT OBJECTION. -- CLOSE
OF THE YEAR 1787.-BEGINNING OF THE YEAR 1788.--RATI-
FICATION OF MASSACHUSETTS, THE SIxTH STATE, WITH PROPO-
SITIoNs OF AMENDMENT.——RATIFICATION OF MARYLAND WITH-
OUT OBJECTIoN. -- SOUTH CAROLINA, THE EIGHTH STATE,
ADoPTs, AND PRoPoSEs AMENDMENTS.
Delaware ratiﬁes unanimously
Prestige of Philadelphia . . .
James Wilson in the Convention of Pennsylvania .
His Defence of the Constitution .
Ratiﬁcation of Pennsylvania.
Position of New Jersey
Ratiﬁes the Constitution .
Position of Georgia . . . .'
Ratiﬁes the Constitution .
Convention of Connecticut .
Her Adoption . . .
New Aspect of the Subject .
Convention of Massachusetts assembles
Nature of her Opposition
. 518
519
. 520
521-524
. 524
524,525
. 526
. 526
. 527
527,528
'. 529
529,530
. 530
. 531
xiv CONTENTS.
Value of her State Constitution . . . . . . . 532
Parties in her Convention . . . . . . . 53 2, 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
Eﬁ'orts 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
CONTENTS. XV
Jeﬁ‘erson’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 receivesthe 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 J ustiﬁcation 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
C H A P T E R I V .
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
xvi CONTENTS.

Local Parties in the State . . . . . . . . 599
Town and Country divided . ' . . . . . 600
Spirit of a Majority of the People . . . . i . . 600, 601
They reject the Constitution . . . . . . . 602
Embarrassing Position of the Union . . . . . . 603
Conclusion . . . . . . . . . . . 604
A P P E N D I X.
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 . . . . . . . . . . . 623
BOOK IV.
FORMATION OF THE CONSTITUTION.
von. 11. 1
CHAPTER I.
PRELIMINARY CONSIDERATIONS. — ORGANIZATION OF THE CON-
vENTION. -- POSITION OF THE STATES. -— RULE or INVESTI-
GATION.
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 Con-
stitution of the United States was framed.
In approaching this interesting topic, I am natu-
rally 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 in-
vited, and to guard against expectations which might
be entertained, but which will not be fulﬁlled.
In a work designed for general and — as I ven-
ture to hope it may prove—for popular use, it'
would be out of place, as it certainly would be
4 FORMATION OF THE CONSTITUTION. [BOOK IV.
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 fea-
ture 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 for~
mation 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 descrip-
tion are ample. The whole civil change which
transformed the character of our Union, and es-
tablished 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 cer-
tainty. The leading purposes that were entertained
and carried out were not left to the conjecture of
posterity, but were recorded by deliberative assem-
blies, whose acts of themselves expressed and ascer-
tained the objects and intentions of the national
CH. 1.] REPUBLICAN FREEDOM 5
will. First framed by an assembly in which the
States participating in the change were fully repre-
sented, 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 diﬂiculty.
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, essen-
tial. Before we enter, however, upon this exami-
nation, there are certain preliminary facts that ex-
plain the circumstances in which the Convention
was assembled, and which will enable us to ap-
preciate 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 govern-
ment 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 per-
manent 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
6 FORMATION OF THE CONSTITUTION. [BOOK IV.
internal peace and prosperity required some exter-
nal 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 gen-
eral despondency of the national heart. As they
turned anxiously and fearfully to the near and dear
interests involved in their separate and internal con-
cerns, they saw that self-government was a necess
sity of their existence. They saw that equality be;
fore 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
CH. 1.]
REPUBLICAN FREEDOM. 7
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 her-
itage 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
b 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 impor-
tant 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 dif-
ference,—- 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 constitu-
tion, framed by the people for their own guidance
in exercising their Sovereign power, became a com-
8 FORMATION OF THE CONSTITUTION. [BOOK Iv.
pact between themselves and every one of their
number. In this substitution of one supreme au-
thority 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 exer-
cise, became immediately necessary, and that declara-
tion 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 re-
quiring 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 usurpa-
tion and fraud, and greatly diminished the inﬂuences
of haste, prejudice, and passion,
Such was the nature of American republican lib-
erty; not then fully understood, not then fully
CH. 1] REPUBLICAN FREEDOM. 9
developed in all the States, but yet discovered, -- a
liberty more diﬁicult of attainment, more elaborate
in its structure, and therefore more needful of de-
fence, 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 pf the
people of each separate State. It is true, that their
previous training and history, and their own intelli-
gent 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 repub-
lican 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 insti-
tutions inviolate, except the people of the United
1701.. II. 2
10 FORMATION OF THE CONSTITUTION. [BOOK Iv.
States in some united and sovereign capacity. No
single State, however great its territory or its popu-
lation, 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 gov-
ernment 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. w
The preservation of the Union of the States was,
therefore, essential to the continuance of their in-
1 dependence, and to the continuance of republican
constitutional liberty, —- of that liberty which re-
sides in law duly ascertained to be the authentic
will of a majority. With this vastly important ob-
ject 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 na-
ture of their existing institutions. T 0 have left
their State governments resting upon the broad
basis of popular freedom acting through repub-
lican forms, and to have framed, or to have at-
tempted 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
CH. 1.] PURPOSES OF THE UNION. 11
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 compos-
ing 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 Con-
vention, 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 judg-
ment of the old Congress, and of every State in the
Union save one,1 the Confederation had been de-
1 Rhode Island.
12 PORMATION OF THE CONSTITUTION. [BOOK Iv.
clared defective and inadequate to the exigencies
of government, and the preservation of the Union.
That this declaration was expressly intended to em-
brace the principle of the Union, or looked to the
substitution of a system of representative govern-
ment, 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 Confedera-
tion; 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 essen-
tial 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 IICCCSSItY/
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 de-
CH. 1.] PURPOSES OF THE UNION.
clared by the other States, Without any material
variation from the terms employed by Virginia.1
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 ob-
jects ; 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 de-
veloped 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 ascer-
tained by resorting to the history of the confederacy,
and by regarding its recorded failures to promote
the general prosperity as proofs of what the exigen-
cies of the Union demanded in a general govern-
ment.2
1 New Jersey speciﬁcally con-
templated a regulation of com-
merce. See the proceedings of
Congress, and those of the States,
ante, Vol. I. pp. 361, 367, notes.
9 Thus, for example, the regu-
lation of commerce was not- one of
the original purposes for which the
Union was formed in 17 75 or in
1 781. But it became one of the exi-
gencies 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
14 FORMATION OF THE CONSTITUTION. [BOOK IV.
\\
In the ﬁrst volume of this work we have exam-
ined 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 exer-
cise. 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 mo-
ment of extreme emergency, it conferred upon the
Commander-in-chief the powers of a dictator. We
have witnessed the establishment of the Confedera-
tion, -- 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 sup-
plied the means Of keeping it alive long enough for
the admirable courage, perseverance, and energy of
promote their own welfare, or to for which we must resort, as the
avoid injury to their Confederates. framers of the Constitution resort-
So of a great many other things, ed, to the history of the times.
CH. 1.] FAILURE OF THE CONFEDERATION.
Washington to bring it to a close, against all obsta-
cles 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 con-
science 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 ex-
ecuted; 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 clash-
ing interests of the different States at all times held
out to them; and that, with the rule which re-
quired 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 ex-
isting 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 suﬁicient power to legislate for their
condition, or to secure their progress toward the
great ends of civil liberty and prosperity.
16 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 prelimi-
nary fact, necessary to be regarded in our future
inquiries, namely, the condition of the actual pow-
ers 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, compul-
sion 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
a”
CH. 1.] POWERS OF THE CONVENTION.
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 in-
creased 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 diﬁ'erent 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 instruc-
tion 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 fur-
ther 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 pow-
ers possessed by the Congress, both under the revo-
lutionary government and under the Confederation.
voL. II. 3
18 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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.1 .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 ques-
tion 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 feel-
ing 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 in-
structions, and who did not concur in the alleged
necessity for a radical change of the principle of the
government. Fearing that the power and conse-
quence of their own States would be diminished by
t the introduction of numbers as a basis of represen-
tation, 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
1 See the preamble to the act of Virginia, ante, Vol. I. p. 367, note.
CH. 1.] EXISTENCE OF SLAVERY.
to suggest and the last to surrender the objection,
that the Convention had received no authority, ei-
ther from the States or from the Congress, to do
anything more than revise the Articles of Confed-
eration, and recommend such further powers as
might be engrafted upon the present system of the
Union.
That the construction of their powers by the lat-
ter class of the members of the Convention com-
ported 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 ineﬁicient
as it had been before; and that what were univer-
sally 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 con-
stituting 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
20 FORMATION OF THE CONSTITUTION. [BOOK Iv.
inhabitants, or according to their wealth, -— this part
of the population of the Slave-holding States pre-
sented one of the great difficulties to be encoun-
tered. 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 pro-
posed to surrender its own control over the condition
of persons within its limits, or its power to deter-
mine 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 ac-
quire any control over the condition of persons
within any of the other States.
The deliberations of the Convention were there-
fore 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 exclu-
sively belonging to the authority of each State in
which they were found. Not only was this conces-
sion 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 re-
garded 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
CH. 1.] POSITION OF THE sLAvEs. 21
States according to their numbers, — the only mode
of representation consistent with republican govern-
ment, — their precise condition, their possession or
want of political rights, could not affect the proprie-
ty of including them in some form in the census,
unless the basis of the government should be com-
posed 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 unjus-
tiﬁable. 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 per-
sons. 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 pro-
portion to its numbers ; and they had recommended
22 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the adoption of this fundamental rule as an amend-
ment of the federal Articles.1 Either in one capaci-
ty, 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 impor-
tance, out of the Union.
This difficulty Should be rightly appreciated and
fairly stated by the historian who attempts to de-
scribe 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 benevo-
lence 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 rela-
tions. History Should undoubtedly concern itself
1 See the Resolve of Congress, gin of the proportion of three
passed April 18, 1783, proposing ﬁfths, in counting the slaves. See
to amend the Articles of Confeder- post, Chapter II. p. 48 ; ante,
ation. This Resolve was the ori' Vol. I. p. 213, note 2.
CHR‘L] STATES REPRESENTED.
23
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 be-
tween 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 ex-
istence which it undertakes to describe. As the
question should always be, in such inquiries, Wheth-
er any different and better result was attainable
under all the circumstances of the case, -—a ques-
tion to which a calm and dispassionate examination
will generally ﬁnd an answer, — the amount of pos-
itive good that has been gained for all, or of positive
evil that has been averted from all, is the true justi-
ﬁcation 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 meas-
ure of a Convention,1 came into it at a late period,
and did not send a delegation until a fortnight after
the time appointed for its session.2 It had always
been the inclination of that State to retain in her
1 Madison, Elliot, v. 96. 2 Ibid.124.
I
1
24 FORMATION OF THE CONSTITUTION. [BOOK“IV.
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 reluc-
tant to enlarge the powers of the Union. Her
delegation appeared on the 28th of May. 675?)
That of New Hampshire was not appointed until
the latter part of June,1 and did not appear until the
23d of J uly.2
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 con-
sumption 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 per-
sons appointed did not attend; and when the resolve
which sanctioned the Convention of 1787 was adopt-
ed in Congress, Rhode Island was not represented
in that body.
1 Elliot, 1. 126. ‘ 2 Ibid. 351.
on. I] STATES REPRESENTED. 25
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 en-
tertain 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 in-
ﬂuence from without —- were in a condition to be
ruled by their demagogues, rather than to be en-
lightened 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 Coun-
cil, 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 pro-
posal to unite with the other States in reforming
the Confederation, a body of commercial persons in
Providence addressed a letter to the Convention, ex-
pressing the opinion that full power for the regu-
voL. II. 4
26 FORMATION OF THE CONSTITUTION. [BOOK Iv.
lation 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 ex-
isting powers of Congress in their requisitions for
national purposes. Their object in this communica-
tion 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 delibera-
tions would be to “ strengthen the Union, promote
the commerce, increase the power, and establish the
credit of the United States,” they pledged their in-
ﬂuence 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 com-
missions given by each of the States which adopted
the recommendation clearly implied that their dele-
gates 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 pro-
ceedings.
CH. 1.] POSITION OF THE STATES.
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 communi-
ties, 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 Declara-
tion 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 rightfuI and exclusive sov-
ereigns. 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 con-
federacy then established, they reserved their free-
dom, sovereignty, and independence, and every
jurisdiction, power, and right not expressly dele-
gated 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
28 FORMATION OF THE CONSTITUTION. [BOOK IV.
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 trem-
bling 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 writ-
. ten constitutions. But the people of the States, and
1\ not their governments, held the supreme, absolute,
CH. 1.] RULE OF INVESTIGATION. 29
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 want-
ed was the discovery of some mode of proceeding,
which, by involving the consent of the State govern-
ments, 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 undertak-
ing was intrusted.
The Convention had confessedly no power to
enact or establish anything. It was a representa-
tive 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 confeder-
acy, 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 determina- .
tions of a majority of the States in this body; the
purposes of particular provisions which those results
clearly disclose; the relations which they evince be-
tween the different parts of the system, -- are all of
30 FORMATION or THE CONSTITUTION. [BOOK IV.
the utmost importance in determining the sense in
which the whole ultimately came before the enact-
ing authority for approval or rejection. If, for ex-
ample, 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 representa-
tion 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 through-
out their deliberations, and adjusted everything with
reference to it; and if, when they ﬁnally provided
for a mode of establishing the new system, they sub-
mitted it directly to the people of each State to de-
clare 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 '4
Every student of the proceedings and discussions
in the national Convention should, however, be
careful not to extend this principle of general in-
terpretation to the views, opinions, or’ arguments
expressed or employed by individuals in that assem-
bly. 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 Con-
vention; and occasionally, as will be seen in refer-
ence to the arrangements which were ﬁnally entered
into as mutual concessions or compromises between
different interests, the discussions will be found to
CH. 1.] RULE or INVESTIGATION. 31
be of great signiﬁcance and ‘importance. But it is,
after all, to the results themselves, and to the prin-
ciples involved in the various decisions of the Con-
vention, as indicated by the votes taken, that we
are to look for the landmarks that are to guide our
inquiries into the fundamental changes, improve-
ments, and additions proposed by the Convention to
the country, and afterwards adopted by the people
of the States.
CHAPTER II.
CONSTRUCTION OF A LEGISLATIVE POWER.-—BASIS “OF REPRE-
SENTATION, AND RULE OF SUFFRAGE. -PowERs OF LEGIS-
LATION.
THE Convention having been organized, Governor
Randolph of Virginia‘ submitted a series of resolu-
tions, embracing the principal changes that ought
to be proposed in the structure of the federal
system.
Mr. Charles Pinckney of South Carolina also sub-
mitted 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 de-
liberations 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, ex-
ecutive, and judiciary ” ; and as this proposition was
1 Edmund Randolph. See ante, Vol. I. p. 480.
CH. 11.] NATIONAL AND FEDERAL.
affirmed in the’ committee by a vote of six States,
it is important to understand the sense in which it
was understood by them.1
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 opera-
tion 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 in-
tended by those who favored a change of that prin-
ciple, when they spoke of a “ national” ggvernment,
was one that would be a supreme power with re-
spect to certain national objects committed to it, and
that would have some kind of direct compulsory
action upon individuals. This distinction was un-
derstood by all to be real and important. It led
directly to the question of the powers of the Con-
vention, and formed the early line of division be-
tween 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 effec-
tive government, and supposed that the Confedera-
tion could be made so by distributing its powers
into the three great departments of a legislative, ex-
ecutive, and judiciary; but they did not suggest any
1 Massachusetts, Pennsylvania, ed (Colonel Hamilton a3], Mr.
Delaware, Virginia, North Caro- Yates 720). Madison, Elliot, V.
lina, South Carolina, ay, 6; Con- 132, 134.
necticut, no, 1; New York divid-
von 11. 5
34. FORMATION OF THE CONSTITUTION. [BOOK Iv.
mode by which those powers could be made supreme
over the authority of the separate States. The lat-
ter 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 pow-
ers into distinct departments would be no improve-
ment 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 admit-
ted, 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, hith-
erto, 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
on. 11.] RULE or SUFFRAGE. 35
been vested in a general gove 3; that govern-
ment had been found ineffic' incapable of
resisting the great power that v‘d 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 politi-
cal governments and Sovereigns; the people of the
States had no direct representation, and no direct
suffrage, in the general legislature; and as in a re-
publican government the representation and the suf-
frage 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 repre-
sentation and the rule of suffrage must be changed.

It being assumed that the new government was X‘
to be divided into the three departments of the legis-
lative, executive, and udiciary, several questions at
once presented themselves with regard to the con-
stitution 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 Z I
The resolutions of Governor Randolph raised the
question as to the rule of suffrage, before the com-
mittee had determined on the division of the legis-
lative power into two branches. One of his prop-
ositions 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 in-
habitants, as the one or the other rule may seem
36 FORMATION OF THE CONSTITUTION. [BOOK Iv.
best in differen es.” This was no sooner pro-
pounded, than ‘culty was suggested by the
deputies of the e of Delaware, which threat-
ened 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.1
The committee thereupon immediately determined
that the national legislature should consist of two
branches,2 and proceeded to consider the mode of
representation and suffrage in both. As the discus-
sions proceeded, the members became divided into
two parties upon the general Subject; the one was
for a popular basis and a proportionate representa-
tion 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 elec-
tion of this branch to the people of the States
would make the new government too democratic;


1 Madison, Elliot, V. 134, 135. wishes of Dr. Franklin, was given
2 Ibid. 135. The vote of Penn- for a single house.
Sylvania, in compliance with the
CH. 11.] REPRESENTATIVE SYSTEM.
that the people were unsafe itaries of such a
power, not because they wante e, but because
they were liable to be misled , nd that the State
legislatures would be more likely to appoint suit-
able persons. On the other hand, it was admitted
that an election of the more numerous branch of
the national legislature by the people would intro-
duce a true democratic principle into the govern-
ment, 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 com-
munity, 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 peo-
ple 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 legisla-
ture by the people.1 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 govern-


1 Massachusetts, New York, South Carolina, no, 2; Connecti-
Pennsylvania, Virginia, North Car- cut and Delaware divided.
olina, Georgia, ay, 6; New Jersey,
38 FORMATION or THE CONSTITUTION. [BOOK Iv
ment which the ‘ds of an election by the people


were aiming to lish. From that discussion it
appears that the 1 ea 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 neces-
sary: either to abolish the State governments alto-
gether; or to leave them in existence, and to regard
the people of each State as competent to with-
draw from their local governments such portions of
their political power as thev 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 sub-
ject 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 govern-
ment 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
on. 11.] OBJECTS OF A NATIONAL GOVERNMENT. 39
in another class of agents, leaving the authority of
the former undiminished except as to those partic-
ular 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 jurisdic-
tion 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 repub-
lican system the real constituent should act directly,
and without any intermediate agency, in the appoint- ‘
ment of the representative. In the second place,
they deduced from the objects of a national gov-
ernment 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
4O FORMATION OF THE CONSTITUTION. [BOOK Iv.
revenues therefrom.1 The former insisted that an-
other great object must be, to provide more effect-
ually for the security of private rights, and the
steady dispensation of justice. Mr. Madison de-
clared 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 re-
strained ; 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.2
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.3
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
1 See Mr. Sherman’s remarks, 3 Connecticut, New Jersey,
made in committee, June 6; Madi- South Carolina, ay, 3; Massachu-
son, Elliot, V. 161. setts, New York, Pennsylvania,
2 See Mr. Madison's views, as Delaware, Maryland, Virginia,
stated in his debates, Elliot,V. 161. North Carolina, Georgia, 770, 8-
CH. IL] FORM OF REPRESENTATION.
of the strongest advocates for a national govern-
ment, — 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 pro-
portionate representation of the people of the States
in both branches.1 But the necessity for providing
some means by which the States, as States, might
defend themselves against encroachments of the na-
tional government, made it apparent that they must
become, in the election, a constituent part of the
system. N 0 mode of doing this presented itself,
except to give the State legislatures the appointment
of the less numerous branch of the national legisla-
ture, — a provision which was ﬁnally adopted in the
committee by the unanimous vote of the States.2
The results thus reached had settled for the pres-
ent 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
memtbrs of the two branches were to be elected,
I Mr. Wilson was in favor of 2 Madison, Elliot, V. 170.
this plan, and Mr. Madison seems
to have favored it.
voL.IL 6
42 FORMATION OF THE CoNsTITUTIoN. [BOOK Iv.

there remained to be determined the decisive ques-
tion, 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 legisla-
ture.
The rule of suffrage adopted in the ﬁrst Conti-
nental 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
'n 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.1 The character of the gov-
ernment 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 for-
mation of the State governments, each of which had
become the present depositary of the political pow-
ers of an independent people.
But if this system were to be changed, — if the
1 Ante, Vol. I. Book I. ch. I. pp. 15 - 17.
CH. IL] RULE OF SUFFRAGE.
4:3
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 con-
necting 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 popula-
tion, - 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 strenu-
ous 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 abol-
ish 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 peo-
ple of the several States, in the national legislature.
The latter course was adopted in the committee, as
l
l
l
l
a
to the ﬁrst branch, by a vote of seven States in the ’
I
44 FORMATION OF THE CONSTITUTION. [BOOK Iv.
affirmative, against three in the negative, one being
divided.1
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 repre-
sentation 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 con-
ﬁned 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 diﬂiculties which had to be encountered.
To have adopted the number of legal voters of
the States as the ratio of representation in the na-
tional legislature would have been to adopt a sys-
tem 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 pol-
icy 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
1 Massachusetts, Connecticut, ay, 7; New York, New Jersey,
Pennsylvania, Virginia, North Car- Delaware, no, 3; Maryland, di-
olina, South Carolina, Georgia, vided.
CH. 11.] BASIS OF REPRESENTATION. 45
as to adapt the condition of society to the new in-
terest 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 aLMaSSa-
chusetts, Connecticut, Rhodg/Igsland, N ew York, and
Pennsylvania, i; 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 aggre-
gate 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 con»
tained 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 situa-
tion of all the Northern States except New Hamp-
shire, 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
46 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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, in-
cluding their slaves, were found by the ﬁrst census,
taken three years after the formation of the Consti-
tution, to contain a fraction less than one half of the
whole population of the Union.1 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.2 There was no good reason, there-
fore, —-except the theoretical one that a slave can
have no actual voice in government, and consequent-
ly 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 inhabit-
ants 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 ques-
tion, if the object had been to efface the boundaries
of the States, and to form a purely consolidated re-
public. But this purpose, if ever entertained at all,
1 They contained 1,793,407 in- 2 See the census of 1790, post,
habitants; the other eight States p. 55.
had 1,845,595 when the federal
census of 1790 was taken.
CH. 11.] BASIS OF REPRESENTATION.
could not be followed by the framers of the Consti-
tution. They found it indispensable to leave the
States still in possession of their distinct political
organizations, and of all the sovereignty not neces-
sary 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 ne-
cessary, therefore, to regard the peculiar Social con-
dition 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 circum-
stances, 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.1 Having decided that there ought to
be an equitable ratio of representation, the commit-
1 The population of the States
was adopted in the committee of
the whole, instead of their quo-
tas of contribution, which, in one
or another form, was the alterna-
tive 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. \
48 . FORMATION OF THE CONSTITUTION. [BOOK Iv.
tee went on to declare that the basis of representa-
tion ought to include the whole number of white
and other free citizens and inhabitants, of every age,
sex, and condition, including those bound to servi-
tude 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, ex-
cept Indians not paying taxes. The proportion of
three ﬁfths was borrowed from a rule which had ob-
tained 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.1 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 re- _
garded 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 Dela-
ware; 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
1 Ante, Vol. 1. Book II. ch. III. of the proportion of three ﬁfths is
p. 213, note 2, where the origin explained.
CH. 11.] SLAVES TO BE INCLUDED.
that the smaller States would never agree to any
other principle than an equality of votes in that
body,1 it was determined in the committee, by a vote
of six States against ﬁve, that the ratio of represen-
tation should be the same as in the ﬁrst branch.2
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, Penn-
sylvania, 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 inter-
posed any objection, except Mr. Gerry of Massa-
chusetts, 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 propor-
tion which the slave States were willing to take.
1 By Mr. Sherman and Mr. Carolina, Georgia, ay, 6; Connect-
Ellsworth. icut, New York, New Jersey, Del-
9 Massachusetts, Pennsylvania, aware, Maryland, no, 5. Elliot, V.
Virginia, North Carolina, South 182.
voL. II. 7
50 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 num-
bers. When, and under what circumstances, this
line of division changed, what combinations a nearer
view of all the consequences of numerical represen-
tation may have brought about, and how the con-
ﬁicting interests were ﬁnally reconciled, will be seen
hereafter. What we are here to record is the dec-
laration of the important principle, that the legis-
lative 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 pow-
ers that would require subsequent enumeration,
namely, that the legislative power ought to embrace
all cases to which the State legislatures were incom-
petent, or in which the harmony of the United
CH. IL] CONTROL OF STATE LEGISLATION. 51
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.1
The somewhat crude idea of making a negative
on State legislation a legislative power of the na-
tional government, shows that the admirable dis-
covery had not yet been made of exercising such a
control through the judicial department. Without
such a control lodged somewhere, the national pre-
rogatives 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 inter-
ests 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 Col-
onies by the crown of England, before the Revolu-
tion; and there were some important members of
the Convention who at this time thought that this
l/Madison, Elliot, V. 139.
52 FORMATION OF THE CONSTITUTION. [BOOK Iv.
power ought to be universal.1 They considered it
impracticable to draw a line between the cases prop-
er 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 neces-
sary 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 legisla-
tion. As the direct authority of the national leg-
islature was to extend only to certain objects ,of
national concern, or to such as the States were in-
competent 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 ex-
ercise 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 prerog-
1 Mr. Madison, Mr. Wilson, Mr. Mr. Sherman, Mr. Bedford, and
C. Pinckney, Mr. Dickinson. On Mr. Butler strenuously opposed
the other hand, Mr. Williamson, this plan.
CH. IL] CONTROL OF STATE LEGISLATION. 53
atives 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 re-
quired would be accomplished.l
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 sup-
posed conﬂict between the rights and powers of the
State and the national governments to an unﬁt arbi-
tration. 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 sepa-
rate State ; and a negative upon State legislation, to
1 Accordingly, a proposition to votes of three States only, viz.
extend the negative on State leg- Massachusetts, Pennsylvania, and
islation to all cases received the Virginia.
54 FORMATION OF THE CONSTITUTION. [BOOK Iv.
be exercised by the legislative branch of the national
government, seemed to be the readiest way of ac-
complishing 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 tempo-
rary assent to laws of urgent necessity. He sug-
gested 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 nega~
tive 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 dif-
ferent, 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
CH. 11.] CONTROL OF STATE LEGISLATION. 55
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 noth-
ing 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 adjudica-
tion by a tribunal that commands the conﬁdence of
all, and in the moral influence of judicial determina-
tions over a people accustomed to submit not only
their interests, but their feelings even, to the arbitra-
ment of uridical discussion and decision.

TABLE
EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, AC-
CORDING 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.


Total population of the eight States in 1 790, 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.
‘U
Whites. Free Colored. 1 Slaves. Total,
New Hampshire, 141,111 630 l 158 141,899
Massachusetts, 373,254 5,463 . . . . . 378,71 7
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 11,423 134,139
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 12,765 293,427 743,307
North Carolina, 288,204 4,975 100,572 393,751
South Carolina, 140,173 1,301 107,094 249,073
Georgia, 52,886 398 29,264 82,548
Aggregate, 2,393,172 53,197 682,633 3,639,002

CHAPTER III.
CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.
THE construction of a national executive, although
not surrounded by so many inherent practical diffi-
culties as the formation of the legislative depart-
ment, was likely to give rise to a great many oppo-
site 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 con-
sist 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 oﬂice 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 consid-
ered that the great requisites for an executive de-
partment -— 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
CH. III.] EXECUTIVE DEPARTMENT.
of the British monarchy would not necessarily fur-
nish 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 ex-
ecutive to the legislative power. That a negative of
some kind upon the acts of the legislature was es-
sential 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 Conven-
tion. Whether it should be a qualiﬁed or an ab-
solute 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 uncon-
stitutional interference with its ‘own prerogatives;
and that, as the judicial department might be ex-
posed 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 fa-
voL. II. 8
58 FORMATION OF THE CONSTITUTION. [BOOK IV.
vored 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 over-
ruled by two thirds of each branch of the legisla-
ture.1
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 execu-
tive, 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 opin-
ion, that, whether the object of a revisionary power
was to restrain the encroachments of the legislature
on the other departments, or 011 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 proposi-
tion 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 pro-
ceedings, however, do not furnish any decisive evi-
dence of the nature and purpose of the revisionary
check.
But before this feature of the Constitution had
1 Adopted by the votes of eight and Maryland voting in the neg-
States against two, - Connecticut ative.
CH. 111.] CHOICE OF THE EXECUTIVE.
been Settled by the committee, they had determined
on a mode in which the executive Should be ap-
pointed. 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 ex-
perience of New York and of Massachusetts, on the
other hand, ——- where the election of the ﬁrst magis-
trate by the people had been successfully practised,—
and the danger that the legislature and the candi-
dates 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 in-
troduction of a proposition that the States be divid-
ed 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.1 By the vote of eight States it was then deter-
mined that the executive should be elected by the
national legislature for the term of seven years ;2
and subsequently it was determined that the execu-
tive should be ineligible to a second term of office,
and should be removable on impeachment and con-
viction of malpractice or neglect [of duty. A Single
1 Pennsylvania, Maryland, ay, North Carolina, South Carolina,
2; Massachusetts, Connecticut, Georgia, 770, 8.
New York, Delaware, Virginia, 2Pennsylvania and Maryland, no.
60 FORMATION OF THE CONSTITUTION. [BOOK IV.
executive was agreed to by a vote of seven States
against three.l After the mode in which the nega-
tive 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.2
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 na-
ture 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 Ameri-
can Confederacy, that the power to employ force
against its delinquent members had not been ex-
pressly 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
1 New York, Delaware, and 2 Nine States voted against it,
Maryland, no. and one (Delaware) was divided.
CH. 111.] JUDICIAL DEPARTMENT.
founded, — and it was universally held to be so, —
we may well concur in the remark of The F eder-
alist, that “ the United States presented the extraor-
dinary Spectacle of a government destitute even of
the shadow of constitutional power to enforce the
execution of its own laws.” 1
The Confederation, too, had found it to be entire-
ly impracticable to rely on the tribunals of the
States for the execution of its laws. Such a re-
liance 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 Con-
federation evinces the futility of laws requiring the
obedience of States, and proceeding upon the expec-
tation 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 de-
duced from the office of the judiciary in all systems
of constitutional government. That office is to ap-
ply 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
1 The Federalist, No. 21.
62 FORMATION OF THE CONSTITUTION. [BOOK Iv.
modes. It may be done by the application of mili-
tary 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 pecu-
liar 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 govern-
ment whose laws it is to enforce. It is essential to
the supremacy of a government, that it should adju-
dicate 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 Consti-
tution 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 Con-
vention, 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.1
At his suggestion, a clause in Governor Randolph’s
plan authorizing the use of force against a delin-
quent member of the Confederacy was laid aside, in
1 Madison, Elliot, V. p. 140.
CH. 111.] PURPOSE OF A J UDICIARY.
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 su-
preme 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 depart-
ment into the new plan of government, of itself
evinces an intention to clothe that government with
powers that could be executed peacefully, and with-
out the necessity of putting down the organized
opposition of subordinate communities. By their
resort to this great instrumentality, we may per-
ceive 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 jurispru-
dence the judiciary is, in the ﬁrst place, the depart-
ment which declares the construction of the laws;
64 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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, be-
comes not merely the arbitrator in a particular con-
troversy, 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 oﬂice of the judicial depart-
ment 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 correspond-
ing department had always fulﬁlled in the States.
N 0 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-regu-
lated liberty. It was known that the judicial de-
partment 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 depart-
ment, like the legislative and the executive, was to
CH. IIL] PURPOSE OF A JUDICIARY.
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 ap-
peals might be carried from the State courts, or
should also embrace inferior tribunals to be estab-
lished 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 pow-
or to establish inferior tribunals ; 1 while the pro-
vision 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 con-
fer, 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
1 Eight States in the affirmative, two in the negative, and one divided.
voL. II. 9
66 FORMATION OF THE CONSTITUTION. [BOOK IV.
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 oﬁicers; 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 ju-
diciary. Those objects were not yet described in
detail, the purpose being merely to settle and de-
clare 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 con-
trol 'over the legislation of the separate States as
might be surrendered by them to the national gov-
ernment, 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 legis-
lative power, to be executed by the direct control of
a negative. But a nearer view of the great incon-
veniences of such an arrangement, and the general
basis of the jurisdiction already marked out for the
national udiciary, led to the development of the
particular feature which was required as a substi-
tute for direct interference with the legislative pow-
on. 111.] JUDICIAL TENURE. 67
ers 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 I
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, deter-
mined that the judges of the supreme tribunal
should hold their offices during good behavior.1
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 commis-
sions 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 be-
havior, they were generally issued during the pleas-
ure 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 111., 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 as-
certained and established; but it was made lawful
1 This was afterwards applied to the judges of the inferior courts also.
68 FORMATION OF THE CONSTITUTION. [BOOK Iv.
for the crown to remove them upon the address of
both houses of Parliament.‘ Still, however, it was
always considered that the commissions of the judges
expired on the death of the king ; and for the pur-
pose 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, not-
withstanding 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.2
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 Conven-
,/ tion, in committee of the whole, was, that the judges
i should hold their offices during good behavior;
,’ that they should receive punctually, at stated times,
\ a ﬁxed compensation for their Services, in which no
l
1 Act 12 8c 13 William III. ch. 2. 2 Act 1 Geo. III. ch23.
CH. 111.] JUDICIAL TENURE.
z'ncwxzsel or‘ diminution should be made so as to
affect the persons actually in office at the time.
The appointment of the udges was by general
consent, at this stage of the proceedings, vested in
the Senate.
1 This was afterwards stricken out.
IJ/
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 wit-h the pro-
vision which gave the judges their commissions during good behavior.
It is obvious that, if the power of removal is to be ‘regarded as an un-
qualiﬁed 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 oﬁicial 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 repug-
nant to the tenure of good behavior. In support of this view of the sub-
ject it is to be observed that, in the statute of 1 Geo. III. e. 23, the tenure
of good behavior is made the leading and primary object of the enact-
ment. 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 Par-
liament 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 fol- _
lows this recital, provides anew that the judges’ commissions shall be and
remain in force during their good behavior, notwithstanding a demise of
7O FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 repug-
nant 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 impossi-
ble. Upon this construction the power of removal can only be rightfully
exercised when a cause exists which touches the oflicial conduct or ca-
pacity 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 de-
clared 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 oﬁicial duties" with propriety and ability, and may yet be person-
ally 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 de-
termined 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 dis-
charge Of official duty, is not inconsistent with the good behavior estab-
lished as the tenure of the oﬁice. But if the good behavior means, not
merely that the individual shall discharge his official duties in a compe-
tent manner, with 'an average ‘amount of ability, and without corruption,
but that he shall so order his life and conversation as not to expose him-
self 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 mean-
ing 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
Cu. 111.] JUDICIAL TENURE.
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 oﬁice;
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 suﬁiciently subservient
to the views of the government in political prosecutions. Mr. Hallam,
after referring to the provisions of the two statutes, lays down the propo-
sition, that “ no judge can be dismissed from oﬁice, except inconsequence
of a conviction for some offence, or the address of both houses ‘of Parlia-
ment,_which is tantamount to an act of the legislature.” (Constitutional
History, 111. 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 accessi-
ble 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 profes-
sional training. He therefore commends the wisdom of subjecting them
in some degree to legislative control. (1bid.) 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 subservicncy 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 exempt-
72 ' FORMATION OF THE CONSTITUTION. [BOOK Iv.
ed the judges alone from the general jurisdiction of this supreme authority
in the realm. The clause was not introduced into the act for the pur-
pose 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 oﬂice; 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. § 1 6 23.)
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 miscon-
duct 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 udges in the realm may be vacated without in-
quiry 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
thecommission; 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 su-
preme 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 constitu-
tion 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 oﬂ‘icial misconduct or inca—
pacity 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
CH. 111.] JUDICIAL TENURE. 7 3
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 pow-
er 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 provis-
ion. 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 amend-
ment 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 re-
markable 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 suﬁ’icient 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,
voL. II. 10
74 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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, neces-
sarily 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 ofofﬁce could be touched only by the solemn process of accusa-
tion and impeachment. The same necessity exists under a State consti-
tution, 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 govern-
ment 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 eonnect
themselves with party discussions, and on which the representatives of
the States in the national legislature would be likely to share in the feel-
ings, and even in thepassions, 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 inde-
pendent, 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.)
CHAPTER IV.
Anmssrox or New STATES. --—GUARANTY OF REPUBLICAN
Govnnmrrzx'L—Pownn or AMENDMEN'L— OATH TO SUP-
PORT THE New SYSTEIWL—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 his-
tory 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 im-
possible that the beneﬁts and privileges of the Union
should be conﬁned to the original thirteen com-
munities by whom it had been established. Pop-
ulation 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 co, ,ntry. Wherever the
hardy pioneers of civilizatiogl penetrated into the
wilderness of the Northwest, they settled upon
lands embraced by those shadowy boundaries which
7 6 FORMATION OF THE CONSTITUTION. [BOOK IV.
carried the territorial claims of some of the older
States into the region beyond the Ohio. Circum-
stances, 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.1
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 ter-
ritories 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 7 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, —- prin-
cipally because it was extremely important to invite‘
cessions of Western territory, — they left the provis-
ion 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
1 Ante, Vol. I. Book III. Chap. V.
CH. IV.]
ADMISSION OF NEW STATES. '77
might be made by a State to be admitted into the
Union.1
When the Ordinance of 1787 was formed, it
1 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 Encyclope'clie Mei
ﬂzodique, in 1786 or 1787, which I
here insert entire. “ The eleventh
Article of ‘Confederation admits
Canada to accede to the Confeder-
ation 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 estab-
lishing new States, was on the car-
pet, 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 num-
ber proper now would render a
greater one proper when the num-
ber 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 ques-
tion whether the eleventh Article
applies to the admission of new
States to be decided when that ad-
mission 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 re-
quired by the Confederation was
to be made by their legislatures, or
by their delegates in Congress ‘P
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 ap-
plied 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.” (J efferson’s
\Vorks, IX. 251.) That the ads
"78
[BOOK IV.
FORMATION OF THE CONSTITUTION.
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
mission 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 par-
ties to the Union, but it would of
itself have made no change in the
Articles; and it was against alter-
ations in the Articles that the pro-
vision of the thirteenth was di-
rected. 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 ad-
mission 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 pro-
prietor of the unoccupied lands
beyond those boundaries. An at-
tempt was made to obtain for
Congress, in the Articles of Con-
federation, power to ascertain and
ﬁx'the western boundaries of those
States, and to lay out the lands be-
yond 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 Arti-
cles 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 Ordi-
nance of 1787, for the regulation
and government of the Northwest-
ern 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 Ordi-
nance introduced into that instru-
ment the stipulation that the new
States should be admitted on an
equal footing with the old Ones, in
the conﬁdence that the constitu-
tional 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
i the position'of Kentucky, Vermont,
Maine, and Tennessee (then called
Franklin)‘, imposed upon the Con-
vention an imperative necessity for
some action that would open the
door of the Union to new mem-
bers.
CH. IV.] GUARANTY OF REPUBLICAN GOVERNMENT.
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 vol-
untary 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 up-
holding 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 inca-
pacity of that government to afford any aid in such
emergencies great prominence among the causes
which led to the revision of the federal system.1
Under that system the States had been so complete-
1 Ante, Vol. 1. Book 111. Chap. 111. pp. 260 - 275.
80 FORMATION OF THE coNsTITIITIoN. [BOOK Iv.
ly sovereign, and so independent of each other in all
that related to their internal concerns, that the gov-
ernment of any one of them might have been sub-
verted without the possibility of an authorized and
regulated interference by the rest. The constitu-
tional and republican liberty that had been estab-
lished 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 appre-
ciate the importance of the guaranty proposed to
be introduced into the Constitution of the United
States, it is necessary for us to look somewhat far-
ther than the particular circumstances of the, com-
motions 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 re-
member 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 in-
curred 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
CH. IV.) GUARANTY OF REPUBLICAN GOVERNMENT. 81
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 success-
ful assertion of the rights of man, and our achieve-
ment of the means and opportunity of self-govern-
ment, 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 inter-
ests 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 Revolu-
tionary 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
VOL. II. 11
82 FORMATION‘ or Tun CONSTITUTION. [BOOK 1v.
state of feeling among different portions of the peo-
ple ‘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 neutral-
ity of the country, and in excluding foreign inﬂu-
_ ence and interference in our domestic‘ affairs.
Had this state of things, which followed immedi-
ately 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 impcratively 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 vupheld by the interfer-
ence 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 re-
CH. IV.] ‘GUARANTY OF REPUBLICAN GOVERNMENT.
quires 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 Con-
stitution, when, in this early stage of their deliberé
ation's, they determined that a republican constitu-
tion should be guaranteed by the United States to
each of the States.1
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 ap-
parent.
It had demonstrated the possibility that a
minority might become in reality the ruling power.
Fortunately, no foreign interference had then inter-
vened; 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 Revolu-
tion, if the government of the Union had not been
1 As the resolution was origi-
nally passed, it declared that “ a
republican constitution, and its ex-
isting 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 repub-
lican form of government,” and of
protection against “invasion ” and
“domestic violence,” as . it now
stands in Art. IV. Sect. 4 of the
Constitution.
84 ‘FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 ad-
mitted 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 re-
sulted necessarily from the nature of that govern-
ment, 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 originat-
ing 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 sup-
port the Articles of Union. The purpose of this
provision was to secure the supremacy of the na-
tional 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.1 '
Finally, it was provided that the new system, after
its approbation by Congress, should be submitted to
1 Massachusetts, Pennsylvania, it (6); Connecticut, New Jersey,
Virginia, North Carolina, South New York, Delaware, and Mary-
Carolina, and Georgia voted for land voted against it (5). .
on. IV.] RATIFICATION. 85
representative assemblies recommended by the State
legislatures, to be expressly chosen by the people to
consider and decide thereon. The question has of-
ten 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 ex-
pedient 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 ratiﬁ-
cation, 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.1
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.2
' 1 See Madison, Elliot, V. 157,
158,183.
2 Massachusetts, Pennsylvania,
Virginia, North Carolina, South
I.’
86v
FORMATION OF THE CONSTITUTION. [BOOK IV.
These, together with a provision that the author-
ity 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 sys-
tem ‘prepared by the committee of the whole, and
reported to the Convention, on the thirteenth of
June.1
Carolina, Georgia, (23/, 6; Connect-
icut, New York, New Jersey, no,
3; Delaware, Maryland, divided.
See further on the subject of “ Rab
iﬁcation,” post,‘ Index.
1 The report was in the follow-
ing words : —
“ 1. Resolved, That it is the
opinion of this committee that a
national government ought to be
established, consisting of a su-
preme 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 treas-
ury; to be ineligible to any oflice
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 member
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 suffi-
cient 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 treas-
ury; 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 gov-
ernment, for the space of one year
after its expiration. - .
“5. Resolved, That each branch
ought to possess the right of origi-
nating 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
CH. IV.]
87
OUTLINE OF THE CONSTITUTION.
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 pro-
portion 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 de-
scription, except Indians not pay-
ing taxes in each State. ‘
“8. Resolved, That the right of
suffrage in the second branch of the
national legislature ought to be ac-
cording 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 oﬁices 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 neg-
ative any legislative act, which shall
not be afterwards passed unless by
two thirds of each branch of the na-
tional 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 legis-
lature, to hold their ofiices during
good behavior, and to receive punc-
tually, at stated times, a ﬁxed com-
pensation 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 diminu-
tion.
“ 12. Resolved, That the national
legislature be empowered to ap-
point inferior tribunals.
“ 13. Resolved, That the juris-
diction of the national judiciary
shall extend to all cases which re-
spect the collection of the national
revenue, impeachments of any- na-
tional officers, and questions which
involve the national peace and har-
mony. _
“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 continu-
88
FORMATION OF THE CONSTITUTION. [BOOK IV.
ance of Congress, and their author-
ities and privileges, until a given
day after the reform of‘ the Articles
of Union shall be adopted, and for
the completion of all their engage-
ments. '
“ 16. Resolved, That a republi-
_ can 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 amend-
ment of the Articles of Union,
whensoever it shall seem neces-
sary.
“ 18. Resolved, That the legisla-
tive, executive, and judiciary pow-
ers within the several States ought
to be bound by oath to support the
Articles of Union.
‘ “ 19. Resolved, That the amend-
ments 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, rec-
ommended by the several legisla-
tures, 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 pro-
posed —- 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 pur-
ported 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 ex-
ecutive, and a udiciary. 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 sep-
arate States,“ might be incompetent, or where their
exercise might be injurious to the. national inter-
voL. II. 12
90 FORMATION or THE CONSTITUTION. [BOOK 1v.
ests;1 and it was moreover to have a certain restrain-
ing 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 gov-
ernment, 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 au-
thority commensurate with ‘that of the legislature,
/ it sought to make, and did theoretically make, the
‘I national government, in its proper sphere, supreme
I over‘ the governments of the States.
With respect to the element of stability, as de-
pending 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 con-
templated 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.
' 1 The regulation of commerce ciﬁc powers, otherwise provided for
was not, any more than other spe- than by these general descriptions.
CH. V.] THE VIRGINIA PLAN.
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 fun-
damental 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 adhe-
rence to State interests, and their strong prejudices
against all external power, had prevented them from
contemplating a government founded on the princi-
ple of a national ‘unity among the populations of
their different communities. Hence, it is not suré
prising that men, who came to the Convention With-
out express powers which they could consider as
authority for the introduction of so novel a princi-
ple, should have been unwilling to agree to the for-
mation 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
coordinate existence of a national and a State sov-
ereignty had undergone no public discussion. At
the same time, almost all the evils, the inconven-
iences, and the dangers which the country had en-
92 FORMATION OF THE CoNsTITUTIoN. [BOOK Iv.
countered 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 estab-
lished, was to fuse all the elements of political power
into a single mass. T 0 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 ex-
ception of Hamilton), New Jersey, and Delaware,
and one prominent member from Maryland, -- Lu-
ther Martin, —preferred to add a few new powers to
the existing system, rather than to substitute a na-
tional government. They were determined not to
surrender the present equality of suffrage in Con-
gress; and accordingly the members from the State
of New Jersey brought forward a plan of a purely
“ federa ” character.1
This plan proposed that the Articles of Confed-
eration 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 con-
1 This, together with the Vir- second committee of the whole,
ginia plan, which was reoommitted June 15th.
along with it, was referred to a
CH. V.] THE NEW JERSEY PLAN
stitution of Congress as it was under the Confed-
eration, 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 popu-
lation. 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 oﬂicers. It pro-
posed 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 em-
ploy the power of the confederated States against
any State or body of men who might oppose or pre-
vent their being carried into execution.
The mover of this system1 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
1 \Villiam Patterson of New Jersey.
94 FORMATION or THE CONSTITUTION. [BOOK IV.
\g\
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 ex-
press authority to change the principle of the exist-
ing constitution, yet that the Convention had been
assembled at a great crisis in the affairs of the Un-
ion, as an experiment, to remedy the evils under
which the country had long suffered from the de-
fects of its general government; that whatever was
necessary to the safety of the republic must, under
such circumstances, be considered as within the im-
plied 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.1
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 de-
signs. These views and opinions should be care-
fully 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
1 See ‘the remarks of Wilson, en in Madison, Elliot, V. 195 -
Pinckney, and Randolph, as giv- 198.
CH. V.] HAMILTON’S VIEWS.
form and tone which the Constitution ﬁnally re-
ceived.
It should be recollected, in making this examina-
tion, 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 undimin-
ished, on the one hand, and on the other by the Vir-
ginia plan of a partial but as yet undeﬁned surrender
of powers to a general government. The construc-
tion 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 politi-
cal 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 re-
publican theory.1 The opinions advanced by Ham-
ilton at the stage of the proceedings which we are
now examining must always be considered with ref-
erence to the principles which guided him, in order
1 See his letter of September 16, ering; ﬁrst published in Niles’s
1803, addressed to Timothy Pick- Register, November 7, 1812.
96 FORMATION OF THE CONSTITUTION. [BOOK Iv.
that a right estimate may be formed of their inﬂu-
ence on the ﬁnal result of the issue then pending.
After disposing of the objection that the Conven-
tion 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 con-
duct before them: ﬁrst, to make a league offensive
and defensive between the States, treaties of com-
merce, and an apportionment of the public debt; sec-
ondly, 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 prin-
ciples 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 govern-
ment. 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 govern-
ment 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 consider-
CH. V.] HAMILTON’S VIEWS.
able degree, within the States themselves, ——a con-
viction 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 immedi-
ately before the eyes of the people; its protection
they immediately enjoyed; by its hand, private jus-
tice 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 dispensa-
tion of those regular honors and just emoluments
which produce an attachment to government. Al-
most 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 evi-
dent conclusion that all federal governments were
weak and distracted. They were so, because the
strong principles which he had enumerated oper-
ated on the side of the constituent members of the
VOL. II. 13
98 FORMATION on THE CONSTITUTION. [BOOK Iv.
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. F or these purposes,
it would be necessary to make it completely sover-
eign.
The New Jersey plan certainly would not pro-
duce this effect. It merely granted the regulation
of trade and a more effectual collection of the rev-
enue, 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 en-
gage 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 settle-
ments and good governments were to be made. Ac-
cording 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, in-
effectual. The national rev'enue must be drawn
from commerce, —from imposts, taxes on speciﬁc ar-
ticles, and even from exports, which, notwithstand-
ing the common opinion, he held to be ﬁt objects
of moderate taxation. 7L
Ca. V.] HAMILTON ’S VIEWS.
99
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 representa-
tive and republican government. But representa-
tion 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 mi-
nority, some part of every good representative gov-
ernment must be so constituted as to furnish a
check to the mere democratic element. The Vir-
ginia 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 demo-
cratic Assembly to be checked by a democratic Sen-
ate, and both of them by a democratic chief magis-
give a Senate or an executive thus chosen
term a few years longer than that of the
membhgs s the Assembly, would not be sufficient to
remove fhem from the violence and turbulence of
the popular passions.
For these reasons, they must go as far, in order to


a o
o'.‘~
o
100 FORMATION OF THE CONSTITUTION. [Boon Iv.
attain stability and permanency, as republican prin-
ciples 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 oﬁices remained elective
and the incumbents were subject to impeachment.
The term monarchy could not apply to such a sys-
tem, for it marks neither the degree nor the dura-
tion 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 gen-
eral 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 administra-
tors of private justice among their own citizens}1
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 dan-
gers; thirdly, that to establish a general govern-
ment would be very difficult, if not impracticable,
and liable to various objections. \Vhat then was to
i 1 See the note at the end of this chapter.
Ca. V.] HAMILTON’S VIEWS. 101
be done’! He answered, that they must balance the
inconveniences and the dangers, and choose that sys-
tem which seemed to have the fewest objections.
The plan which Hamilton then read to the Con-
vention, 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 represen-
tation by States, and a system of proportionate rep-
resentation 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 representa-
tion would have obtained in both houses, making a
102 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 legisla-
tion. The operation of such a system must necessa-
rily have involved perpetual conﬂicts between na-
tional 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 demo-
cratic Senate, was strikingly applicable. This objec-
tion, it is true, was not presented by him as a reason
for admitting the States to a direct and equal rep-
resentation in the government; he employed it to
enforce the expediency of giving to the Senate a dif-
ferent 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 admis-
sion 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
CH. V.] HAMILTON’S VIEWS. 103
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 undoubt-
edly 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 inconsist-
encies 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
104 FORMATION OF THE CoNsTITUTIoN. [BOOK Iv.
and the powers of the States. The whole experience
of the past had taught him to anticipate such con-
ﬂicts, and the theory of a purely national govern-
ment, when applied by the arrangement now pro-
posed, 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.ll
For it is not to be forgotten, that after the votes'
which had been taken, and after the position as-
sumed 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 gov-
ernment partly national and partly federal, not to
the mere theories proposed on either side, but to the
fortunate results of a wise compromise, made neces-
sary 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
1 See the note at the end of this chapter.
on. V.] POPULAR AND STATE REPRESENTATION. 105
States, on the fundamental principle of the govern-
ment. 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-
prcservation was for them involved in adhering to
the old principle of the Confederation. N otwith-
standing the defects and imperfections of the Vir-
ginia plan, it was deemed necessary by the majority
of the Convention to insist upon it, until the princi-
ple of popular representation should be conceded by
all, as proper to exist in some part of the govern-
ment; 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 sys-
tem there must be a Senate permanently in oﬂ‘lce,
and that the legislative powers of the States must be
mainly surrendered, would have tended only to con-
ﬁrm the opposition and to swell the numbers of the
minority. The contest went on, therefore, as it had
you n. 14
106 FORMATION OF THE CONSTITUTION. [BOOK Iv.
begun, between the opposite principles of popular
and State representation, until it resulted in an ,ab-
solute 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 expe-
rience 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 prin-
ciple of the Confederation, and containing no dimi-
nution of the existing powers of the States, could
not accomplish even the principal objects of a gen-
eral 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 admin-
istration 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 major-
ity; as the case of Massachusetts then demonstrated.
It would not secure the Union against the inﬂuence
Ca. V.] MADISON’S VIEWS. 107
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 power-
ful for its exercise. On the other hand, if the ob-
stinate adherence of the smaller States to an inad-
missible 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 se-
cure against the ambition and power of their larger
neighbors, than they would be under a general gov-
ernment pervading with equal energy every part of
the empire, and having an equal interest in protect-
ing every part against every other part? In the sec-
ond event, could the smaller States expect that their
larger neighbors would unite with them on the prin-
ciple of the present confederacy, or that they would
exact less severe concessions than were proposed in
the Virginia scheme’!
108 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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,1 that it
would not be just to allow Virginia, which was six-
teen 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 parti-
tion be made into thirteen equal parts. ‘Vould
such a scheme be practicable’! The dissimilarities
in the rules of property, as well as in the man-
ners, 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,2 directed by the wisdom
of one of the most enlightened and patriotic minis-
ters that any age had produced,3 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 coa-
lition with their neighbors be less inconvenient to
the whole community and equally effectual for their
own safety?4 If New Jersey or Delaware conceived
1 Mr. Brearly and Mr. Patter- 3 Necker.
son. 4 Mr. Patterson had said, that, if
5-’ Louis XVI. they were to depart from the prin-
on. V.] VIRGINIA PLAN REPORTED. 109
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 ob-
noxious 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 impor-
tance. If they should come into the Union at all,
they would come when they contained but few in-
habitants. If they should be entitled to vote ac-
cording 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.1
At the close of Mr. Madison’s remarks, the com-
mittee decided, by a vote of seven States against
three, one State being divided, to report the Vir-
ginia 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
ciple of equal sovereignty, the only Let it be tried, and they would see
expedient that would cure the diﬁi- whether Massachusetts, Pennsylva-
culty would be to throw the States nia, and Virginia would accede to
into hotchpot. To say that this was it. (Madison, Elliot, V. 194.)
impracticable, would not make it so. 1 Elliot, V. 206 - 21 1.
110 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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.1
1 Madison, Elliot, V. 212. Jour- whole were discharged, on the 19th
nal, Elliot, 1. 180. This vote was of June.
taken, and the committee of the

NOTE ON THE OPINIONS OF HAMILTON.
THE idea has been more or less entertained, from the time of the Con-
vention to the present day, that Hamilton desired the establishment of a
monarchical government. This impression has arisen partly from the the—
oretical 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 na;
ture 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 dis-
tinct monarchical party in that body, “ whose Object and wish,” he said,
“it was to abolish and annihilate all State governments, and to bring for-
ward 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, consid-
ered 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
Cu. V.] THE OPINIONS or HAMILTON. 111
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 J crsey, Delaware, and in part from Mary-
land, and of some members from other States, who were in favor of a fed-
eral 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 represen-
tation. N ow 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 corpora-
tions and to the position of subordinate agents of the central government,
was considered by some as a necessary consequence of a national repre-
sentative 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 govern—
ment 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 legis-
lation. 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 representa-
tion 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 car-
ried 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 monar-
chz'cal 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.
112 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 gov—
ernments. But any one who will attend carefully to the course of his
argument,—-imperfectly as it has been preserved,—- will ﬁnd that it em-
braces 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 in-
fluence and power which are the proper supports of government. It
must therefore be made completely sovereign, and State power, as a sep-
arate legislative authority, must be annihilated; otherwise, the States will
be not only able, but will be constantly tempted, to exert their own au-
thority 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 Vir-
ginia 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 adopt-
ed, 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 em-
braced 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 con-
cerning the comparative merits of different governments, and of certain
features of the plan of a constitution which he read to the Convention.
W'ith 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 sub-
stance 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 approvedjt, 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
on. V.] THE OPINIONS OF HAMILTON. 113
speech occupied the entire session of one day (June 18), and who exam-
ines the brief from which he spoke, and which is still extant. (Hamil-
ton’s ‘Vorks, 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 prin-
ciples and the working of other systems of polity, and possessed of re-
sources 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 il-
lustrations 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 con-
federacy 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 differ-
ent systems of government, frankly expressed the opinion that the British
constitution was the best form which the world had then produced ;— cit-
ing 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 con-
stant recognition of the authority of the people, as the source of‘ all politi-
cal power. It proposed that the members of the Assembly should be
elected by the people directly, and the members of the Senate by elec-
tors 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
voL. II. 15
114 FORMATION OF THE CONSTITUTION. [BOOK Iv.
proposed that the executive and the senators should hold their offices
during good behavior; and this has been his offence against republican-
ism, with those who measure the character of a system by the frequency
with which it admits of rotation in oflice. His accusers have failed to
notice that he made his executive personally responsible for oﬂicial mis-
conduct, 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 sin-
cere desire for the establishment and success of republican government.
That he desired a strong government, that he was little disposed to dog-
matize 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 descrip-
tion 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 Vir-
ginia, 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, 1. 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,
C11. V.] THE OPINIONS OF HAMILTON. 115
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.
CHAPTER VI.
CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS. --DI-
vIsIoN OF THE LEGISLATURE INTO Two CIIAMRERS.— DISA-
GREEMENT OF THE STATES ON THE NATURE OF REPRESENTA-
TION IN THE Two BRANCHES. —-THREATENEO DISSOLUTION OF
THE UNION.
WE are now approaching a crisis in the action of
the Convention, the history of which is full of instruc-
tion for all succeeding generations of the American
people. We have witnessed the formation of a mi-
nority of the States, whose bond bf 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 ma-
jority to which they were opposed, the motives and
purposes by which both were animated, and the re-
sults to which their conﬂicts ﬁnally led, are extreme-
ly 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’f New York, now
at the head of the scale, then ranked after North
4‘ &w \Q‘sb
CII. V1.1 MAJORITY AND MINORITY OF STATES.
Carolina and Massachusetts, which occupied thelf‘ﬁ ‘W third and fourth positions in the ﬁrst census, and his» \5' ‘i 110%‘?
which now occupy respectively the sixth and tenth. -'
South Carolina, which then had a smaller popula-
tion than Maryland, now has a much greater. Geor-
gia 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, be-
tween the different members of the confederacy, not
only in the actual numbers of their inhabitants, and
their present wealth, but in their capacity and op-
portunity 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 Isl-
and, 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 govern--
ment 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 dis-
tinction from a “ federal” government, had been
steadily pressed to the conclusions arrived at in the
committee of the whole, and now embraced in its g
118 ~ FORMATION OF THE CONSTITUTION. [BOOK Iv.
report.1 All but two of them were certain to re-
main 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.2
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 Un-
ion. She was represented by Alexander Hamilton,
Robert Yates, and John Lansing, Junior. The ' two
latter uniformly acted together, and of course con-
trolled 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 be-
tween 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 dispo-
sition 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. I Most of her public men, also,3 held it to be
impracticable to establish a. general government of
1 Rhode Island was never rep— relative rankv of the States, I com-
resented in- the Convention, and pare the census of 1790 and that
the, delegation of New Hampshire of 1850.
had not yet attended. a 3 The two great exceptions of
"'2 In all these statements of the course were Hamilton and Jay.
Ca. VL] NATIONAL AND FEDERAL SYSTEMS.
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 pow-
ers 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 confed-
eracy the moneys arising from a general system of
revenue, some power of regulating commerce and
enforcing the observance of treaties, and other ne-
cessary matters of less moment. This was the opin-
ion of Yates, the Chief Justice of the State, who
may be taken as a fair representative of the senti-
ments of a large part, if not of a majority, of its peo-
ple at this time]l 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 con-
templated a grant of full and unrestrained power
over these subjects to a federal government, or
whether they designed only a qualiﬁed grant, capa-
ble of being recalled or controlled by the parties to
the confederacy, for reasons and upon occasions of
1 See the candid and moderate ing their reasons for not signing the
letter of Messrs. Yates and Lansing Constitution. (Elliot, 1. 480.)
to the legislature of the State, giv-
120 FORMATION OF THE CONSTITUTION. [BOOK Iv.
which those parties were to judge. From the gen-
eral course of their reasoning on the nature of a fed-
eral government, it might seem that the latter was
their intention.1 It is not difficult to understand
how these gentlemen may have supposed that an
irrevocable grant of ' powers to a general govern-
ment 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, fact-
ihg through a singlebody '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 dan-
gerous 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 un-
1 In the New Jersey plan, which
the New York gentlemen (Hamil-
ton 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 at-
titude 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 exe-
cution.
Ca. v1.1 NATIONAL AND FEDERAL SYSTEMS. 121
doubtedly 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 re-
ceived the necessary authority from their own State
to go beyond the principle of the Confederation; that
it would be impracticable to establish a general gov-
ernment, without impairing the State constitutions f
and endangering the liberties of the people; and;-
that what they regarded as a “ consolidated” gov-
ernment 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.1 The great energy and earnestness,
1 Three of the delegates- of the‘ St. ‘Thomas Jenifer, and Daniel
State, James McHenry, Daniel of Carroll, signed the Constitution.
voL. II. 16
122 - FORMATION OF. THE CONSTITUTION. [BOOK Iv.
however, of that distinguished person, prevented a
concurrence of the State with the purposes and Ob-
jects of the majority. . '
Connecticut might reasonably consider herself as
one of the smaller States, and her vote was stead-
ily given for an equality of suffrage in both branch-
es 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 ques-
tion. .
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 ne-
cessity, to establish a government in which the‘ dem- -
ocratic 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 Q “fall, it
Should be felt only in proportion to the \ielative
numbers of the people composing each separate com-
munity. 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 equal-
ity on which the Confederation had been founded,
they were asked to submit to mere injustice, on ac-
count of an imaginary danger to their smaller con-
federates. 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
C11. v1.1 DIVISION BETWEEN THE STATES. . 123
parties to a subsisting confederacy, under which they
might be regarded in the same light as the individ-
uals 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 major-
ity that no safe and durable government could be
formed, if the democratic element were to be ex-
cluded. Pure democracies had undoubtedly been
attended with inconveniences. But how could
peace and real freedom be preserved, under the re-
publican 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 exis 'ng
compact, must be considered. as the parties t, e
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 '
124 ORMATION OF THE CONSTITUTION. [Boon Iv.
government proceeds to taxation, the States will op-
pose its powers.1
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 consider-
able 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 there-
fore the principle of the Union could notbe 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 liber-
ties to the keeping of a majority of the people in-
habiting all the States, for such a power would in-
evitably destroy the State constitutions. They were
willing, they said, to enlarge the powers of the fed-
eral 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
1 Yates’s Minutes, Elliot, 1. 433.
on. v1.1 DIVISIGN BETWEEN THE STATES. 125
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 them-
selves 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 betweenv 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 doubt-
ful question of a direct resort, to the people, whose
power to act independently of their State govern-
ments 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
126 FORMATION OF THE CONSTITUTION. [BOOK Iv.
details of the Constitution, as its formation proceed-
ed,'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 prac-
ticable, to decide which party was theoretically cor-
rect. 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 Consti-
tution, 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, a 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 possi-
bly 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,
CH. v1.1 MERITS or A NATIONAL sYsTEM. 127
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 pur-
pose was to have a government that would not se-
riously 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 for-
midable 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 sys-
tem had been tried, and had broken down in com-
plete prostration of all the appropriate energies and
functions of government. The advocates of the op-
posite system, therefore, could point to all the fail-
128 FORMATION OF THE CONSTITUTION. [BOOK Iv.
ures 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 na-
ture. But no experiment had been made by the
people of the American States, of a government
founded expressly on the national character and re-
lations 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 anni-
hilate, the sovereignties of the States. The advo-
cates of the Virginia plan were called upon to Show
how the general sovereignty and urisdiction 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 op-
ponents1 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 Vir-
ginia system made no other provision for State de-
fence against encroachments of the general govern-
ment 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
1 Dr. Johnson of Connecticut.
CH. VL] TWO LEGISLATIVE CHAMBERS.
satisﬁed, however admirable the theory, and however
able might be the reasoning by which it was sup-
ported.
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 1
adhering too ﬁrmly to mere theoretical principles, .
in matters of government. He will see the impres-
sive spectacle of States assembled for the formation
of some system capable of answering the exigencies
of their situation; he will see how rapidly a differ-
ence 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 oppo-
site 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 organiza-
tions and rights.
The Convention had received the report of the
von. II. 17
130 FORMATION OF THE CoNsTITUTIoN. [BOOK Iv.
committee of the whole on the 19th of June. From
that day until the 5th of July the struggle was con-
tinued, 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 prin-
ciple 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 or-
ganization of the Congress. Still, the needful har-
mony 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 pro-
mulgate decrees and enact laws; but it had a 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 re-
gard a Single chamber as favorable to liberty, or to
wise legislation.1 The separation into two chambers
of the lords spiritual and temporal, and the com-
mons, 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 promiscu-
ously in one house, and just as effectually signiﬁed
1 Mr. Hallam has traced the he says recognizes it as already
present constitution of Parliament standing upon a custom of some
to the sanction of a statute in the length of time. Const. History,
15th of Edward II. (1322), which I. 5.
CH- v1.1 Two LEGISLATIVE CHAMBERS. 131
the assent or dissent of Parliament to any measure
proposed.‘ But the practice of making the assent
of Parliament to consist in the concurrent and sep-
arate 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 as-
sumed. 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 repre-
senting different orders of the state, was in the high-
est degree conducive to the security of the subject,
and to sound legislation.2
So fully was the conviction of the practical con-
1 Mr. Hallam does not concur shows, that in the 11th Edward I.
in what he says has been a prevail-
ing 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 one end of
\Vestminster 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
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
11. (See the very valuable Chap-
ter VIIL, on the English Constitu-
tion, in Hallam’s Middle Ages, III.
3429
2 See on this subject Lieber on
Civil Liberty, 1. 209, edit. 1853.
132 FORMATION OF THE CONSTITUTION. [BOOK Iv.
venience and utility of two chambers established in
the Anglican mind, that, when representative gov-
ernment 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 Col-
onies was there any difference of social condition, or
of political privilege or power, recognized in the sys-
tem of representation; and as there were, therefore,
no separate estates or orders among the people, re-
quiring to be protected against each other’s encroach-
ments, 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 co-
lonial governments, to anything but their belief in
its practical advantages for the purposes of legisla-
tion. Still less can we suppose, that after the Rev-
olution, and when there no longer existed any such
motive as might have inﬂuenced the crown in mod-
elling 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
foundr tqflow from it., \
Only three exceptions to this practice existed in
America, at the time of the formation of the Consti-
tution. They were the legislatures of the States of
Pennsylvania and Georgia, and the Congress of the
Confederation.
on. v1.1 Two LEGISLATIVE CHAMBERS. 133'
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 af-
forded for the ancient and favorite construction of
the legislative department. The proposal was re-
sisted, not because it was doubted that, in a govern-
ment 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 pro-
priety of attempting to establish a government of
that kind. The States of New York, N ew Jersey,
and Delaware, therefore, recorded their votes against
such a division of the legislature, and the vote of
Maryland was divided upon the question.1
The reader will observe, however, that, in its pres-
ent 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 arti-
1 Connecticut upon this question voted with the majority.
134 FORMATION OF THE CONSTITUTION. [BOOK Iv.
ﬁcial basis must be provided for one house, to dis-
tinguish 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 founda-
tion for the two branches, as distinct as the separate
representation of the different orders in the British
constitution. It has thus secured the incidental ad-
vantages of two- chambers, without resorting to those
ﬂuctuating or arbitrary distinctions among the peo-
ple, which can alone afford, in such a country as
ours, even an ostensible difference of origin for legis-
lative 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
CH. VL] DEBATE ON THE RULE OF SUFFRAGE.
six years, and to be thirty years of age. The States
of Pennsylvania and Virginia voted against the elec-
tion 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.1
At length, the sixth resolution, which deﬁned the
powers of Congress, and the seventh and eighth,
which involved the fundamental point of the suf-
frage in the two branches, were reached?’ The sub-
ject 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 WVilliamson 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 em-
ployed; 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
1 Madison, Elliot, V. 240. 2 June 28.
136 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 it-
self 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 in-
troduce 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.‘
To these consequences of a dissolution of the
Union, Hamilton added another, equally serious.
Alliances, he declared, must be formed with differ-
ent 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
1 Lladison, Elliot, V. 256.
CH. VL] DEBATE ON THE RULE OF SUFFRAGE.
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 domes-
tic tranquillity and happiness. This was an ideal
distinction. N 0 government could give us tranquil-
lity and happiness at home, which did not possess
sufficient stability and strength to make us respect-
able abroad. This was the critical moment for form-
ing such a government. \Ve should run every risk
in trusting to future amendments. As yet, we re-
tain 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 tran-
quil and free deliberations on the subject. It would
be madness to trust to future miracles.1
But these warnings were of no avail against the
settled determination of those who saw greater dan-
gers 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 neces-
sity for some provision which should receive the
States in their political capacity, and on a footing of
1 Madison, Elliot, V. 258.
von 11. 18
138 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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.1 The consequence was
that the proportionate rule of suffrage for the ﬁrst
branch was established by a majority of one State
only ;2 and the Convention passed on, with a ﬁxed
and formidable minority wholly dissatisﬁed, to con-
sider 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 de-
gree 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 inter-
est 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
1 It was made at this stage by
Dr. Johnson.
2 The States opposed to an
equality of suffrage in the ﬁrst
branch were Massachusetts, Penn-
sylvania, Virginia, North Carolina,
South Carolina, and Georgia, 6;
those in favor of it were Connecti-
out, New York, New Jersey, and
Delaware. The vote of Maryland
was divided.
CH. VL] BASIS OF THE SENATE.
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 gov-
ernments 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.1 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 re-
ceived into the representation on an equal footing,
or according to their relative weig/ t. 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. N o
satisfactory decision of this naked question could have
1 Mr. Baldwin of Georgia suggested this model.
\
140 FORMATION OF THE CONSTITUTION. [BOOK Iv.
been had; and it is to be considered among the most
fortunate of the circumstances attending the forma-
tion 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 repre-
sentation 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 ad-
verse combinations, loomed in the future. Reason
and argument became powerless to persuade. Pa-
triotism, for a moment, lost its sway over men who
would at any time have died for their common coun-
try. 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 dis-
CH. VL] VOTE ON REPRESENTATION IN THE SENATE.
solve the confederacy by insisting on an unjust
scheme of government.
Ellsworth, of Connecticut, in behalf of the minor-
ity, offered to accept the proportional representation
for the ﬁrst branch, if the equality of the States were
admitted in the second, thus making the govern-
ment 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 Con-
vention, one of the New Jersey members1 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,2 and the discussion pro-
ceeded. 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 repre-
sentation in the Senate, ﬁve were opposed to it, and
the vote of Georgia was divided.3
1 David Brearly, 3 The question was put upon
2 New Ybrk and New Jersey. Ellsworth’s motion to allow the
142 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 wan-
ders 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 adjudi-
cated, or Jackson conquered; that the arts, the
commerce, the letters of America should not have
is not intelligible. (Elliot, I. 356.)
Baldwin was a very wise and a
very able man. He was not in
States an equal representation in
the Senate. The vote stood, Con-
necticut, New York, New Jersey,
Delaware, Maryland, ay, 5; Mas-
sachusetts, Pennsylvania, Virginia,
North Carolina, South Carolina,
no, 5; Georgia divided. The per-
son who divided the vote of Geor-
gia, and thus prevented a decision
which must have resulted in a dis-
ruption 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
favor of Ellsworth’s proposition,
but he probably saw the conse-
quences of forcing the minority
States to the alternatives of receiv-
ing what they regarded as an un-
just and unsafe system, or of quit-
ting 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.
on. v1] CONSEQUENCES or A SEPARATION. 143
taken the place which they hold in the affairs of the
world; that instead of this great Union of prosper-
ous and powerful republics, made one prosperous
and powerful nation, history should have had noth-
ing to show and nothing to record but border War-
fare 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 ex-
ploded delusions with which mankind have succes-
sively deceived themselves, and republican institutions
have been made only another name for anarchy and
social disorder; —all these things seem at once in-
conceivable 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 conven-
tion of American statesmen, without having accom-
plished the work for which they had been assembled.
\Ve do know, that, if they could not have succeeded
in framing and agreeing upon a system of govern-
ment 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 compo-
nent parts, but for the wisdom and conciliation of
those who, in their original earnestness to secure a
perfect theory, had thus encountered an insuperable
144 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 magna-
nimity was as great as their intellectual acuteness
and strength. Let us turn to the proof on which
rests their title to this distinction. '
CHAPTER VII.
FIRsT GRAND CoMPRoMIsEs OF THE CONsTITUTION. -- POPULA-
TION OF THE STATEs ADOPTED As THE BASIS OF REPREsENTA-
TION IN THE HOUsE. - RULE FOR COMPUTING THE SLAvEs. -
EQUALITY 0F 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 necessar , or the effort to
make a constitution must be abandoned. A conver-
sation 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.1
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 represen-
tation; and although the principle of popular repre-
‘1 The committee consisted of Franklin, Bedford, Martin, Mason,
Gerry, Ellsworth, Yates, Patterson, Davie, Rutledge, and Baldwin.
voL. II. 19
146 FORMATION OF THE CONSTITUTION. [BOOK Iv.
sentation 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.1
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 ac-
cording 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 arrange-
ment; 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 distinc-
tion 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 appro-
priating 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 _
1 The committee was appointed tion in the interval transacted no
on the 2d of July, and made their business. '
report on the 5th. The Conven-
C
ca. VIL] REPORT or A COMPROMISE. 14:7
branch. This was intended for a concession by the
smaller States to the larger.1 The ratio of represen-
tation 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 com-
puted; each State not possessing that number of
inhabitants to be allowed one member. The num-
ber 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 rep-
resentation 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 ad-
mission 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 organ-
izations of the States were to be retained, and in
which the States were to be represented in propor-
tion 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 sec-
tions of the Convention, and almost all parties were
disappointed in the result arrived at by the commit-
tee, 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
1 See further as to this exclusive power of the House, post.
148 FORMATION OF THE CONSTITUTION. [BOOK Iv.
on the part of the smaller States, and as a useless
restriction.‘ 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,2 and the equal vote of the
States in the second branch was also retained.3
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,4 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,5 and authorizing the legis-
1 Madison, Butler, Gouverneur
Morris, and Wilson.
2 Five States voted to retain it,
three voted against it, and three
were divided. This was treated as
an afﬁrmative vote. Elliot, V. 255.
3 Connecticut, New York, New
Jersey, Delaware, Maryland,
North Carolina, ay, 6; Pennsyl-
vania, Virginia, South Carolina,
no, 3; Massachusetts, Georgia, di-
vided. Ibid. 285, 286.
4 Gouverneur Morris, Gorham,
Randolph, Rutledge, and King.
5 They gave to New Hampshire,
2; Massachusetts, 7 ; Rhode Island,
on. VH1 ADJUSTMENT OF THE COMPROMISE.
149
lature, as future circumstances might require, to
increase the number of representatives, and to dis-
tribute them among the States upon a compound
ratio of their wealth and the numbers of their inhab-
itants.1 The latter part of this proposition was
adopted, but a new and different apportionment, of
sixty-ﬁve members for the ﬁrst meeting of the legis-
lature, was sanctioned by a large vote of the States,
after a second reference to a committee of one mem-
ber from each State.2
'> 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
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.
1; Connecticut, 4; New York, 5;
New Jersey, 3; Pennsylvania, 8;
Delaware, 1; Maryland, 4; Vir-
ginia, 9; North Carolina, 5; South
Carolina, 5; Georgia, 2.
1 Elliot, V. 287, 288.
2 This apportionment gave to
150 FORMATION OF THE CONSTITUTION. [BOOK Iv.
and most serious difficulty in the subject of repre-
sentation, 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 Constitu-
tion that more requires to be examined with a care-
ful attention to facts, with an unprejudiced consid-
eration of the purposes and motives of those who
became the agents of its great compromises and com-
pacts between sovereign States, and with an impar-
tial survey of the difficulties with which they had to
contend. s’
Twice had the Convention affirmed the propriety
of counting the slaves, if the States were to be rep-
resented according to the numbers of their inhab-
itants; and on the part of the Slaveholding States
there had hitherto been no dissatisfaction manifested
with the old proportion of three ﬁfths, originally pro-
posed 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.‘ It was supposed that the former
1 See Mr. Gorham’s explanation; Madison, Elliot, V. 288.
CH. VIL] ADJUSTMENT OF THE COMlPROMISE.
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 slavehold-
ing 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 in-
ﬁuence 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 apportion-
ment 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
152 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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
avpid 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 dis-
‘ tinctions 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 ad-
vance 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 more 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.‘
1 Sherman and Gorham.
on. VIL] ADJUSTMENT OP THE ooMPRoMIsE. 153
Accordingly, when a counter proposition was
brought forward by Williamson,1 — which contem-
plated 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 inhab-
itants, and four States recorded their votes against
it.2 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 apportion-
ment 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 num-
bers would draw after it the necessity for an admis-
sion 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,
1 Of North Carolina.
9 Massachusetts, Connecticut,
New Jersey, Pennsylvania, Vir-
ginia, North Carolina, ay, 6; Del-
aware, 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
voL. II. 20
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 opposi-
tion 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.
154 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 diffi-
culty of arranging a just rule of popular representa-
tion between States which would have no slaves, or
very few, and States which would have great num-
bers of persons in that condition, without giving to
the latter class of States some weight in the govern-
ment proportioned to the magnitude of their popula-
tions. But they would not directly admit the naked
principle that a Slave is to be placed in the Same cat-
egory with a freeman for the purpose of representa-
tion, 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.1 There-
upon 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 Representa-
tives, and a rule to be compounded of the numbers
and wealth of the States, to be applied by the legis-
lature in adjusting the representation in future
houses. A difficulty, apparently insuperable, had
1 Connecticut, Virginia, North Carolina, no, 6. South Carolina
Carolina, Georgia, ay, 4; Massw voted in the negative, for a reason
chusetts, New Jersey, Pennsylva- suggested in the previous note,
nia, Delaware, Maryland, South ante, p. 153.
CH. VIL] ADJUSTMENT OF THE COMPROMISE.
defeated the application of the simple and -— as it
might otherwise appropriately be called —- the nat-
ural 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 representa-
tive 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 legis-
lation. 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 Con-
stitution 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 con-
dition 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
156 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 insti-
tuted for certain special objects, with a proper regard
to the respective rights and interests of those com-
munities, and to the magnitude of the stake which
they would respectively have in the legislation by
which all were to be affected.‘
It does not appear, from any records of the dis-
cussions 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 ref-
erence to slaveholding States, the slaves must be
counted as persons or as property; and as the pro-
posed 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 Ameri-
can people; namely, that the right of representa-
tion ought to be conceded to every community on
which a tax is to be imposed; or, as one of the
1 See the note on the population holding States, at the end of this
of the slaveholding and non-slave- chapter.
CH. VIL] ADJUSTMENT OF THE COMPROMISE.
maxims of the Revolutionary period expressed it,
that “ taxation and representation ought to go to-
gether.” This doctrine was really applicable to the
case, and capable of furnishing a principle that
would alleviate the difliculty; 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 propri-
ety 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 ascer-
taining 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 fur-
nished 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 num-
bers 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
158 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 num-
bers 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
ut the various steps taken for the purpose of ap-
plying 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 representa-
tion.” 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 com-
bined 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
CH. VII.] TAXATION AND REPRESENTATION.
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 foot-
ing 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.1 Mr. Chase,2 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
1 See Mr. Jefferson's notes of John Adams’s Works, Vol. II. pp.
this debate in the Congress of 496—498.
1776, Works, Vol. I. pp. 26 -30. 2 Samuel Chase of Maryland.
160 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 adop-
tion 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, determin-
ing 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 meas-
me of wealth, instead of the more convenient and
practicable rule of numbers.‘
But the Articles of Confederation had not been
in operationfor two years, when it was found that
the system of obtaining supplies for the general
treasury by assessing quotas upon the States accord-
ing to an estimate of their relative wealth, repre-
sented by the value of their lands, was entirely im-
practicable; 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. Accord-
ingly, in 1783 the Congress were compelled to
1 See ante, Vol. I. pp. 210-213.
on. VH1 TAXATION AND REPRESENTATION. 161
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 dif-
ferent views, in the amendment then proposed to the
Articles of Confederation.1
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 gov-
ernment upon a popular representation of the States
which had found it so difficult to agree upon a just
and practicable rule for determining their propor-
tions of the public burdens, the whole subject he-
came still further complicated with the difficulties
attending the adjustment of this new right of pro-
portional 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 num-
bers, for the same purpose, that they ought not to be-
reckoned in their entire number. They professed
their readiness to have representation and taxation
1 See Mr. Madison's notes of gress, VIII. 188 (April 18, 1783).
the debate in the Congress of 1 783, Ante, Vol. I. p. 213.
Elliot, V. 78 -80. Journals of Con-
voL. II. 21
162 FORMATION or THE CONSTITUTION. [BOOK 1v.
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.1L 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 repre-
sentation, as persons; and it was plain that, if they
were to be treated as property, and the representa-
tion 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 ques-
tions as these, the agreement of different minds,
under the inﬂuence of different interests, was abso-
lutely impossible.
rl‘hus 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
1 See the remarks of General and Governor Randolph. Elliot,
Pinckney, Mr. Mason, Mr. Butler, V. 294 —305.
CH. VIL] TAXATION AND REPRESENTATION.
with the freeman, -— whatever principles were main-
tained 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 communi-
ties where slavery exists, as well as where it is ab-
sent, —-- absolute truth, or what the whole country
would receive as such, was unattainable. But an
adjustment of the problem, founded on mutual con-
ciliation 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 ingre-
dient 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 pro-
posed by Wilson. It consisted, ﬁrst, in affirming
the maxim that representation ought to be propor-
tioned 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 author-
ity 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
164 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 free-
man, —— 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; ‘ but since it had been moved as an amend-
ment to the proposition previously accepted, which
affirmed that the representation ought to be regu-
lated 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 repre-
sentation and taxation, Governor Randolph proposed
to strike the word “ wealth” from the resolution;
and this, having been done by a’ vote nearly unani-
mous,‘2 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 ca-
pacity in the rule for representation.3
1 Connecticut, Pennsylvania, 9 The only opposition was from
Maryland, Virginia, North Caro- Delaware, the vote of which was
lina, Georgia, ay, 6; New Jersey, divided.
Delaware, no, 2 ; Massachusetts, 3 See the note at the end of this
South Carolina, divided. chapter.
CH: VIL]
REPRESENTATION IN THE SENATE.
The basis of the House of Representatives having
been thus agreed to, the remaining part of the re-
port, 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 re-
port, including the equality of votes in the Senate,
was adopted, by a bare majority, however, of the
States present.1
When this result was announced, Governor Ran-
dolph 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
1 Connecticut, New Jersey, Del-
aware, Maryland, North Carolina
(Mr. Spaight, no), ay, 5; Penn-
sylvania, Virginia, South Carolina,
Georgia, no, 4; Massachusetts di-
vided (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 for-
mer 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.
166 ‘ FORMATION OF THE CONSTITUTION. [BOOK Iv.
consult informally upon some expedient that would
bring about a unanimity, he proposed an adjourn-
ment. 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 im-
policy 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.1
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 con-
siders that the chief cause which had brought about
this convention of the States was the ineﬂiciency 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 stren-
uously 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 fore-
1 Elliot, V. 319.
cu. VIL] REPRESENTATION IN THE SENATE. 167
see 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 Con-
stitution 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 thi!
check is, it both recognizes and preserves the resid-
uary sovereignty of the States; it enables them to
hold the general government within its constitu-
tional 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 le’nar 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.1
1 Mr. Madison, who was to the in the 62d number of the Federal-
last a strenuous opponent of the ist, as they had been disclosed to
equality of votes in the Senate, him by subsequent reﬂection.
candidly and truly stated its merits
168 FORMATION OF. THE CONSTITUTION. [BOOK Iv.
NOTE ON THE POPULATION OF THE SLAVEHOLDIN
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 abol-
ished 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
uthern 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 foundv
also, in a newspaper of that period (New York Daily Advertiser, Febru-
ary 5, 1788), the following
“ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED
IN THE FEDERAL CONVENTION, ACCORDING TO TIIE MOST ACCU-
RATE 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, “ 1‘ 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 North-
ern and Middle States, adopted in the Convention, was 1,495,000; that
on. VH1 POPULATION IN 1787. 169
of the ﬁve Southern States (including three ﬁfths of an estimated num-
ber 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 305,54 7. In the estimate of1787, 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 num-
ber 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
lthe different States for the purpose of adjusting the ﬁrst representa-
tion 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 1 790 will lead to the same conclusion.
voL. II. 22
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. --
OATII 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 ac-
tion 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 nega-
tive certain laws of the States, the principle was
substituted of making the legislative acts and trea-
ties 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 con-
Cu. VIII] EXECUTIVE DEPARTMENT.
sist 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 of-
ﬁces 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 execu-
tive 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 consist-
ent with a system of republican government, —- so
long as it provided an elective magistrate, not ap-
pointed by an oligarchy, and holding by a responsi-
ble 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 lati-
tude of choice, as to the mode of appointment, and
172 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the duration of office, opened the greatest diversity
of opinion. In the earlier stages of the formation of i
a plan of government of three distinct departments,
the idea of an election of the executive by the peo-
ple 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. Be-
garding the office mainly in this light, without have
ing 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 oﬂice, 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
oﬂice was to be ineligible a second time. This,
however, was to encounter one inconvenience by
another, since the more faithfully and successfully
CH. VIII.)
1'73
ELECTION OF PRESIDENT.
the duties of the station might be discharged, the
stronger would be the reasons for continuing the
individual in oﬂice.
ingly stricken out.
The ineligibility was accord-
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 mag-
istrate who was to be re-eligible; and among them
was one which contemplated “ good behavior” as
the sole tenure of the office.1
This proposition was
much considered; it received the votes of four States
out of ten ; 2
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.3 But
1 Moved by Dr. M’Clurg, one of
the Virginia delegates, and the per-
son appointed in the place of Pat-
rick Henry, who declined to attend
the Convention.
9 New Jersey, Pennsylvania,
Delaware, Virginia, a3], 4; Massa-
chusetts, Connecticut, Maryland,
North Carolina, South Carolina,
Georgia, no, 6.
3 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 pre-
vent a dangerous union of the legis-
lative 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 tri-
bunal 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 leg-
islature. In a note to his “De-
bates,” 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 num-
ber 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 ar-
rangement of a contrary tendency.
The avowed friends of an execu-
tive ‘during good behavior’ were
174. FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 unre-
strained 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
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 behav-
ior,” I understand Mr. Madison to
mean those who would have pre—
ferred 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 Hamil-
ton 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 exec-
utive 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 re-
marks: “In the plan of a consti-
tution 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 ofiice 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. Mad-
ison, Elliot, V. 584.)
CH. VIIL] ELECTION OF PRESIDENT.
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 South-
ern, 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 pro-
portion to their qualiﬁed voters, or their free in-
habitants. ' -
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 uni-
form rule of suffrage in the primary elections, and
without being obliged to settle the discrepancies
between the election laws of the States. They fur-
nished, 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-eligi-
bility, and especially with that of impeachment. If
appointed by electors, there would be danger of their
being corrupted by the person in oﬂice, if he were
17 6 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
eligiblea second time, or by a candidate who had not
ﬁlled the station. Hence there would be a propri-
ety in making the executive “subject to impeach-
ment 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 applica-
blei only to a diminution of the salary The cogni-
zance of impeachments of national Oﬁicers 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 con-
ﬁrmed to the national legislature.
The fourteenth resolution, providing for the ad-
mission of new States, was unanimously agreed to.‘
The ﬁfteenth resolution, providing for the contin-
‘uance of Congress and for the completion of their
engagements, was rejected.
on. VIIL] RATIFICATION OF THE SYSTEM. 177
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 re-'
publican constitution and the “ existing laws ” of a
State, the declaration’ was adopted, “ that a repub-
lican form of government shall be guaranteed to
each State, and that each State shall be protected
against foreign and domestic violence.” 1
The seventeenth resolution, that provision ought
to be made for future amendments, was adopted
without debate.2 '
The eighteenth resolution, requiring the legisla-
tive, 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 0
national government.
I 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'diﬁ'erent theo-
ries 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
1 Ante, Chap. V. their seats as delegates from New
2 At this point (July 23) John Hampshire.
Langdon and Nicholas Gilman took ' ' ’
voL. II. 23
17 8 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 con-
ﬁned to a mode of introducing changes in the funda-
mental compact of the Union, such as was provided
for by the Articles of Confederation. But the Con-
vention had found itself obliged, from the Sheer
necessities of the country, to go far beyond the Con-
federation, and to make a total change in the prin-
ciple 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 conform-
ity 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-exist-
ing 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 adop-
tion to the case of unanimous consent, it was still in
CH. VIIL] RATIFICATION OF THE SYSTEM.
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, ques-
tions 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 rep-
resent the people of each Colony were proceeding
upon revolutionary principles and rights. ' But be-
fore 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
180 FORMATION OF- THE CONSTITUTION. [BOOK Iv.
obligations which the Confederation imposed upon
its members rested upon the States in their, corpo-
rate capacities; and the government of each of them
was competent to assume, for the State, such obli-
gations, and to enter into such stipulations. In the
same way, it was competent to the State govern-
ments to make alterations in the Articles of Con-
federation, by unanimous consent, so long as those
alterations did not change the fundamental principle
of the Union, which was that of a system of legisla-
tion for the States in their corporate capacities.
But when it was proposed to reverse this principle,
and to create a government, external to the govern-
ments 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 con-
stituents, 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 pur-
pose 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 consti-
tuted 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.
CH. VIIL] RATIFICATION OF THE SYSTEM.
Undoubtedly it would have been possible to have
given the Constitution of the United States a theo-
retical adoption by the people of the States, by com-
mitting 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 dis-
putes as to the real basis and authority of the gov-
ernment, 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 respec-
tive governments, were parties to a federal system,
which they had stipulated with each other should
be changed only by unanimous consent. The Con-
stitution, which was now in the process of forma-
tion, 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 ac-
ceptance 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
182 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 decis-
ion, which introduced into the government a System
of popular representation; but two of those dele-
gates, entirely dissatisﬁed with that decision, had
withdrawn from the Convention, and had gone home
to- prepare the State for the rejection of the Scheme.1
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. Una-
nimity had already become hopeless, if not impracti-
cable; and it was necessary, therefore, to look for-
ward 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 peo-
ple of \each State, who possessed authority to with-
draw the State government f'rom 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
1 See the letter of Messrs. Yates and Lansing to Governor Clinton,
Elliot, 1. 480.
CH. VIIL] RATIFICATION OF THE SYSTEM.
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 gov-
ernment 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 compe-
tent 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 represent-
atives 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
184 FORMATION OF THE ooNsTITUTIoN. [BOOK Iv.
will of the minority. It was impossible to rest‘this
authority upon any. other basis than that of the rati-
ﬁcation 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 ex-
ercise all political power.1
There were not wanting, however, strong advo-
cates 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 unani-
mous consent.2
1 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 found-
ed on the legislatures only, and one
founded on the people, to be the
true difference between a league,
or treaty, and a constitutiom The
former, in point of moral obligation,
might be as inviolable as the latter.
In point ofpolitz'cal operation, there
were two important distinctions m
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
" their engagements.
constitution established by the peo-
ple themselves would be consid-
ered by the [judges as null and
void. Secondly, the doctrine laid
down by the law of nations in the
ease. of treaties was, that a breach
of any one article by any of the
parties freed the other parties from
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.
'9 ‘Connecticut, Delaware, and
Maryland voted for an amend-
ment to the original resolution,
which, if adopted, would have sub-
mitted the Constitution to the State
on. VIII.] ooMPLETIoN OF THE REPORT. 185
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 appro-
bation, and that the legislatures of the States should
then recommend to the people to institute assem-
blies 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 Con-
vention, required that the alterations which it might
propose should be “ agreed to in Congress and con-
ﬁrmed 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 com-
plied with, if the legislatures, on receiving and con-
sidering the system, should recommend to the people
to appoint representative bodies to consider and de-
cide on its adoption, and the people should so adopt
and ratify it.1 - -.
The topics covered by the report of the committee
of the whole had thus been passed upon in the Con-
vention, 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
legislatures. The resolution to re- 1 For the history of the proceed-
fer it to assemblies chosen for the ings relating to the institution of
purpose by the people, was subse— the national Convention, see Ante,
quently adopted, with the dissent Vol. Book III. Chap. VI.
of one State only, Delaware.
voL. II. 24
186 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 representa-
tion 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 ar-
rangement one State only dissented. The vote of
. Maryland was given against it, through the inﬂu—
ence 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,iwent to the com-
mittee of detail in a form which was subsequently
modiﬁed in . a very important particular It was at
., ﬁrst Proposed,1 that. landed property, as well as citi-
zenship in the United- States, should be embraced in
' 1' By; Mason.
on. VIIL] PRoTERTY QUALIFICATION; 187
the qualiﬁcations. But there were solid objections
to this requirement, founded on the circumstances
of! the country and the nature of a republican con-
stitution. 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 agricul-
ture, commerce, and manufactures of all kinds, in-
cluding 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 al-
though they were much less numerous than the agri-
cultural class, yet that they were likely to increase
in a far greater ratio than they had hitherto. Prac-
tically, therefore, to require a qualiﬁcation of landed
property, wouldbe to give the offices of the general
government to the agricultural interest. These con-
siderations led the Convention, by a nearly unani-
mous vote, to reject the proposition for a landed
qualiﬁcation.1
Very serious doubts were also entertained, wheth-
er, 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 gov-
ernment. ‘It may be required as a qualification,
either of the elector or the elected, that the individ-
ual shall possess a certain amount of property. But
1 Maryland alone voted to retain it.
188 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
it seems scarcely consistent with the spirit of a re-
publican 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 quali-
ﬁcation 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 fran-
chise, 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 im-
plied by the capacity to pay a very small portion of
“the public burdens.1 I
At the present stage, however, of the formation
of the Constitution of the United States, the opin-
ions of a majority of the States were in favor of a
property qualiﬁcation for office, as well as a require-
ment of citizenship; and the committee of detail
1 As in the State of Massachu- payment of an annual poll—tax of
setts; where the sole money quali- it 1.25, or about ﬁve shillings ster-
ﬁcation required of a voter is they Zing.
CH. VIIL] GENERAL PINCKNEY’S NOTICE.
189
were instructed accordingly, with the dissent of only
three of the States.1 But, as we shall afterwards
ﬁnd, another view of the subject ﬁnally prevailed.2
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 th‘e 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.3 Before it’was sent to them, however,
a noticewas 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 re-
minded 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.4
1 Connecticut, Pennsylvania, - 4 By a security against an eman~
and Delaware.
‘ 9 See the title “ Qualiﬁcations ”
in the Index.
3 The committee of detail, ap-
pointed July 24, consisted of
Messrs. Rutledge, Randolph, Gor-
ham,‘ Ellsworth, and—Wilson. El;
liot, V. 357. ~ ~ -
cipation of slaves, General Pinck—
ney 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 state-
190
FORMATION OF THE CONSTITUTION. [BOOK IV.
The resolutions as adopted by the Convention, to-
gether' 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}l
ment often made, which assumes
that the Constitution could not- have
been established ~without some pro-
vision 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.
1- The resolutions, as referred,
were as follows: -—
“ 1. Resolved, That the govern-
ment of the United States ought to
consist of a supreme legislative, ju-
diciary, and executive.
“ 2. Resolved, That the legisla-
ture 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 ade-
quate compensation for their servi-
ces; 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 be-
longing 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 legislw
ture of the United States ought to
be chosen by the individual legisla-
tures; to be of the age of thirty years
at least; to hold their oﬁices 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 in-
capable of holding, any office under
the authority of the United States,
(except those peculiarly belong-
ing to the ' functions of the second
branch,) during the term for which
they are elected, and for one year
ereafter.
. Resolved, thataooeh branch
' ought to‘ possess the right of origi-
nating acts.
“6. Resolved, That the national
legislature ought to possess the legis-
lative rights vested in Congress by
the Confederation; and, moreover,
to legislate in all cases for the gen-
eral 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 legisla-
tive acts of the United States, made
by virtue and in pursuance of the
Articles of Union, and all treaties
made and ratiﬁed under the author-
ity of the United States, shall be
the supreme law of the respective
States, as far as those acts or trea-
ties shall relate to the said States,
CH. VIIL]
191
OUTLINE OF THE CONSTITUTION.
or their citizens and inhabitants;
and that the judiciaries of the sev-
eral States shall be bound thereby
in their decisions, anything in the
respective laws of the individual
States to the contrary notwith-
standing.
“ 8. Resolved, That, in the origi-
nal 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; Mas-
sachusetts, eight; Rhode Island,
one ; Connecticut, ﬁve ; New York,
esix; New Jersey, four; Pennsyl-
vania, eight; Delaware, one; ‘Ma-
ryland, 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 inhab-
itants, 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 inhab-
itants, according to the provisions
hereafter mentioned, namely: Pro-
vided 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 after-
wards, 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'oflicers
of the government of the United
States, shall originate in the ﬁrst
branch of the legislature of the
United States, and shall not be al-
tered or amended by the second
branch; and that no money shall
be drawn from the public treasury,
but in pursuance of appropria-
tions to be originated by the ﬁrst
branch.
“ 11. Resolved, That, in the sec-
ond 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; tobe 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 remov-
able on impeachment, and convic-
tion of malepractice or neglect of
duty; to receive a ﬁxed compensa-
tion for the devotion of his time to
the public service, to be paid out of
the public treasury.
192
FORMATION OF THE CONSTITUTION. [BOOK IV.
"‘ 13. Resolved, That the national
executive shall havexa right‘to neg-
ative 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 legis-
lature; ‘to hold their oﬂices during
good behavior; to receive punctu-
ally, at stated times, a ﬁxed compen-
sation for their services, in which
no diminution shall be made so as
to affect the persons actually in
office at the time of such dimi-
nution. . .
f‘ 15. Resolved, That the‘national
legislature be empowed to appoint
inferior tribunals. , l
. “ 16. Resolved, That the jurisdic~
tion of the national judiciary shall
extend to cases arising under laws
passed by the general legislature;
and to such other questions as in—
volve the national peace and bar-
mony.
“1 7. 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 govern-
ment 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 guar-
anteed to each State; and that each
State shall be protected against for-
eign and domestic violence.
“ 19. Resolved, That provision
ought to be made for the amendment
of the Articles of Union, whenso-
ever it shall seem necessary.
“ 20. Resolved, That the legisla-
tive, executive, and judiciary pow-
ers, 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 amend-
ments 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, rec-
‘ommended by the several legisla-
tures, to _ be expressly chosen by
the people to consider and decide
thereon. -
“22. Resolved, That the repre-
sentation 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 in-
struction to the committee to whom
were referred the proceedings of
the Convention for the establish-
ment of a national government, to
receive a clause, or clauses, requir-
ing certain qualiﬁcations of prop-
erty and citizenship in the United
States, for the executive, the judi-
ciary, and the members of both-
branches of the legislature of the
United States.” - -
CHAPTER IX.
REPORT OF THE COMMITTEE OF DETAIL. -- CoNsTRUoTIoN 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 com-
mittee, 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 compli-
ance 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 re-
quire a new consideration of the subjects involved.
Hence it is important to pursue the growth of the
Constitution through the entire proceedings.
voL. II. 25
194. FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 pre-
cise 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 pur-
pose 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 govern-
ment.1
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 decis-
ion 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.2 Two
1 The ﬁrst draft of the Constitu- given to report “certain qualiﬁca-
_ tion, reported by the committee ~ of tions of property and citizenship,”
detail‘, will be found in the Ap- for the executive, the judiciary,
pendix. - and the members of both houses of
2 A general instruction had been Congress.
on. 1x.) FOREIGN-BORN INHABITANTS. 195
great questions, therefore, remained open; ﬁrst,
with what class of persons was the election of mem-
bers 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 fo in
and spirit. When the States had assembled in ,on- ‘
vention, it became the result of a necessary 0


people of the several States. But wh e to be re-
garded as the people of a State, for '
a question of great magnitude, n be Considered.
The situation of the country, i
as well as to many other impo nt questions, was
peculiar. The streams of e gration, which began
to ﬂow into it from Europ t the ﬁrst settlement of
the different Colonies, h 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
196 FORMATION OF THE cONsTITUTIoN. [BOOK Iv.
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 Consti-
tution of the United States was about to be framed,
large and various classes of individuals in the differ-
ent 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 govern-
mentiﬁThe place ‘that was to be assigned to these
person'siin the political system of the country was
a subjecf‘ofmuch solicitude to its best and most

thoughtful tatesmen. '
On the dgxhand, all were aware that there ex-
isted among t e native populations of the States a
very strong Ani" ican feeling, engendered by the
war, and by the cumstances attending its com-
mencement, its progfess, and its results. It was a
war begun and prosecuted for the express purpose
of obtaining and securingfforthe people who under-
took it, the right of self-government. It necessarily
created a great‘ jealousy of foreign inﬂuence, whether
exerted by governments or individuals, and ‘a strong
CH. IX.] . FOREIGN-BORN INHABITANTS. 197
fear that individuals would be made the agents of
governments in the exercise of such inﬂuence. The
political situation of the country under the Confed-
eration 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 immi-
g'ration 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 coun-
try many persons of foreign birth, who had thor-
oughly 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.1 They
1 It is only necessary to mention the names of Hamilton, Wilson, Rob.
198 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 dif-
fering qualiﬁcations annexed to that right under the
State constitutions, and the consequent dissatisfac-
tion that must follow any‘effort to establish distinct
or special qualiﬁcations under the national Consti-
tution. » In some of the States, the right‘ of voting
was conﬁned to “ freeholders ”; in others, — and by
far the greater number, -— it was ext-ended 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 pub-
lic burdens. ' The consequence, therefore, of adopt-
ing 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
ert Morris, and Fitzsimmons, to all persons of foreign birth from
show the entire impracticability of being electors, or from being elect-'
a rule that would have excluded ed to office.
on. 1x] POWER or NATURALIZATION. 199
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 neces-
sary 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 highlynecessary that the
national authority, either by direct provision of the
Constitution, or by a legislative power to be exer-
cised under it, should determine the period when
the rights of citizenship could be acquired by per-
sons of foreign birth. From the ﬁrst establishment
of the State governments down to the present period,
those governments had possessed the power of nat-
uralization. Their rules for the admission of for-
eigners to the privileges of citizenship were extreme-
ly 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 tobe
200 FORMATION OF THE coNsTIToTIoN. [BOOK Iv.
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 citizen-
ship, 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 pos-
sess 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 qual-
iﬁcations unknown to their laws. As the States
were the best judges of the circumstances and tem-
per of their own people, it was certainly best to con-
ciliate them to the support of the new Constitution
by this concession. It was possible, indeed, but not
on. IX.] . QUALIFICATIONS OF voTERs. 201
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 ab-
solutely free suffrage‘would be felt most severely by
themselves in their domestic concerns; and against
the special danger to be apprehended from the in-
discriminate admission D 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 natural-
ization. ' -
This part of the scheme consisted in the transfer
of the power of naturalization to the general gov-
ernment ; a power that was necessarily made exclu-
sive, 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 representa-
tive 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 repre-
sented ; but they were to remain the people of a
distinct community, whose modes of exercising the
right of self-government would be peculiar to them-
selves; and that would obviously be the most suc-
voL. II. 26
202 FORMATION OF THE. CONSTITUTION. [BOOK 1V.
cessful representation of such a‘ people in a national
assembly, which most conformed itself to their habits
and customs in the organization of their own legis-
lative bodies. Accordingly, although very strenu-
ous efforts were made to introduce into the Con-
stitution of the United States particular theories
with regard to popular suﬁ'rage,—— some of the mem-
bers 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
eﬂicient practical control over the States in respect
to the political rights to be conceded to persons not
natives of the country.1
As we have already seen, the committee of detail
had been instructed to report qualiﬁcations of prop-
erty and citizenship for the members of every depart-
ment 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.2
1 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 for-
eign birth who are not naturalized
citizens of the United States.
2 Art. VI. Sect. 2 of the reported
draft.
CH. IX.] QUALIFICATIONS FOR OFFICE.
They introduced, however, into their draft of a Con-
stitution, 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 cit-
izen 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.1 '
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 inconsist-
ent with the character that had already been im-
pressed upon the government, by the compromise
which had settled the nature of the representation
in the popular branch. It was to be a representa-
tion of the people of the States; and as soon as it
was determined that the right of suffrage in each
State should be just vas broad as the legislative au-
thority 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 impos-
ing 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 re-
spective limits, thus excluding the idea of a special
representation of property, it was certainly not neces-
1 Art. IV. Sect. 2 of‘ the reported draft.
‘204 FORMATION OF THE coNsTITUTION. [BOOK Iv.
sary 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 Constitu-
tion.1
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 obsta-
cle to such a provision. The objection arising from
the impolicy of ‘discouraging future immigration had
V‘ 1 New Hampshire, Massachusetts, and Georgia alone voted to retain it.
Elliot, V. 404.
CH. Ix.) QUALIFICATIONS FOR OFFICE. 205
its weight; but it had not the decisive inﬂuence
which was conceded to the position of those for-
eigners already in the country and already enjoying
the rights of citizenship under the laws and consti-
tutions 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 pre-
vious citizenship should be required. The com-
mittee of detail proposed three years. Other mem-
bers 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 determin-
ing 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’ citi-
zenship as a qualiﬁcation of members of the House
of Representatives was ﬁnally established.
But ‘was this qualiﬁcation to apply to those for-
eigners who were then citizens of the States, and
who, as such, would have the right to vote on the
acceptance of the Constitution? \Verc they to be
told that, although they could ratify the Constitu-
tion, they could not be eligible to office under it,
206 FORMATION OF» THE CONSTITUTION. [Book IV.
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 citi-
zens. Itis 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 oper-
ation of the. rule requiring a citizenship of seven
years, and that it; was unsuccessful.1
It is impossible now to determine how numerous
this body of persons. were, in whose favor the at-
tempt was made to establish an exception to the
rule; and their numbers constitute a1 fact that is
now historically important only in its bearing upon
a principle of the Constitution. From the argu-
ments of those who sought to introduce the excep-
tion, 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
. 1 The Constitution of Pennsyl- of citizens. There were similar
vania had given to foreigners, after provisions in, nearly all of the
two years’ residence, all the rights States. '
l
CH- IX.] QUALIFICATIONS FOR OFFICE.
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 cit-
izenship. Whether the United States were in any
way bound to redeem these alleged pledges of the
States, was a nice question of casuistiy, 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 mat-
ter of complaint by anybody. When the States had
made these persons citizens, -and through the Arti-
cles of Confederation had conferred upon them the
privileges of citizens in every State in the Union,
they did not thereby declare that such adopted citi-
zens 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 func?
tions of legislators. If the citizen of foreign birth
was disfranchised bythe one’ requirement, the native
208 FORMATION OF THE coNsTITIITIoN. [Boox Iv.
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 ex-
ercised 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 s'uffrages upon a
foreigner recently admitted to the position of a citi-
zen. The mischiefs, too, that might be apprehended
from such appointments would be far loss, after the
policy of the government had been settled and the
fundamental legislation necessary to put the Consti-
tution into activity had been accomplished. But‘
the ﬁrst Congress that might be assembled under
the Constitution would have a work of great magni-
tude and importance to perform. Indeed, the char-
acter which the government was to assume would
depend upon the legislationv 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
CH. IX.] IMMIGRATION ENCOURAGED. 209
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 lead-
ing 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.1
Thus it appears that the Constitution of the United
States discloses certain distinct purposes. with refer-
ence to the participation of foreigners in the politi-
cal 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 in-
stitutions, were all inconsistent with any policy
that would prevent the redundant population of Eu-
rope from ﬁnding in it an asylum. Accordingly,
the emigrant from foreign. lands was placed under
no perpetual disqualiﬁcations. The power of nat-
uralization that was conferred upon the general gov-
1 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 Con-
necticut, New Jersey, Pennsylva-
voL. II. 27
nia, Maryland, Virginia, 5; the
States voting against it were New
Hampshire, Massachusetts, Dela-
ware, North Carolina, South Car-
olina, Georgia, 6. The question
' elicited a good deal of feeling, and
was debated with some warmth.
210 FORMATION OF THE CONSTITUTION. [BOOK Iv.
ernment, and the accompanying circumstances at-
tending its transfer by the States, show an intention
that some provision should be made for the admis-
sion of emigrants to the privileges of citizenship,
and that in this respect the inducements to a partic-
ular residence should be precisely equal throughout
the whole of the States. The power was not to
remain dormant, under ordinary circumstances, al-
though 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 affec-
tions 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 cir-
cumstances might require, -—- an authority that places
' the States under the necessity of restricting their
CH. IX.] SPIRIT OF THE CONSTITUTION. 211
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 dis-
cretionary 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 predilec-
tions 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 pro-
vide for, can hesitate to recognize the wisdom and
the necessity of these provisions. A country of vast
extent opened to a boundless immigration, which na-
ture 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 prac-
tical establishment of the right of self-government
by the native population; and that right could be
secured for their posterity only by requiring that for-
eigners, 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.
212 FORMATION OF THE coNsTITUTIoN. [BOOK W.
No other changes were made in the proposed-
qualiﬁcations for the representatives, excepting to
require that the person elected should be an inhab-
itant 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.1 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 apportion-
ment of representatives; a ratio that had not been
previously sanctioned by a direct vote of the Con-
vention, but which had been recommended by the
committee of compromise, at the time when the
nature of the representation in both houses was ad-
justed.2 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.3 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
1 Ante, Chap. VII. 3 See post, as to the compromise
2 See ante, Chap. VIII. on this subject. '
CH. IX.] RATIO OF REPRESENTATION. 218
provision that the number should not exceed one
for every forty thousand inhabitants. ' But at a sub-
sequent stage of the proceeedings,1 before the Con-
stitution was sent to the committee of revision, ‘Vil-
son, 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 con-
struction of the Senate, is represented to have ex-
pressed 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.2
But the motion to reconsider was lost,3 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 Con-
vention. With the habitual delicacy and reserve of
his character, he had conﬁned himself strictly to the
1 September 8. 3 By a majority of one State.
2 Elliot, V. 530. Ibid.
214 FORMATION OF THE CONSTITUTION. [BOOK Iv.
duties of a presiding oﬁicer, throughout the proceed-
ings. 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‘ in-_
terpose. 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 small-
ness 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 amend-
ment of this part of the plan adopted. The intima-
tion was enough; no further opposition was offered,
and the ratio was changed to one representative for
thirty thousand inhabitants.1 .
It is now necessary to trace the origin of a pecu-
liar 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 tohave been guided wholly by
the example of the British constitution, upon an
1 That is to say, Congress were habitants, but not to exceed that
authorized to apportion one rep- number. Constitution, Art. I. § 2.
resentative to thirty thousand in-
cs. 1x1 MONEY BILLS. 215
assumed analogy between the relations of the re-
spective 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 com-
mittee of the whole, a proposition was brought for-
ward 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 en-
countered 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
216 FORMATION OF THE coNsTITUTION. [BOOK Iv.
branches proposed for the Congress of the United
States.1 It was however admitted, that, if the rep-
resentation in the Senate should not ﬁnally be made
a proportionate representation of the people of the
several States, there might be a cause for introduc-
ing this restriction.2 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 ques-
tion at that time excepting the theoretical merits of
such a distinction between the powers of the two
houses.3
But other considerations afterwards arose. When
the ﬁnal struggle came on between the larger and
the smaller States, upon the character of the repre-
1 Let the reader consult Mr.
Hallam’s acute and learned discus-
sion of this exclusive privilege of
the House of Commons, (Const.
-Hist., III. 37 -46,) and he will prob—
ably be satisﬁed, that, whatever the-
oretical 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 im-
memorial. It would not be quite
safe, therefore, to reason upon the
welhdeﬁned provision of our Con-
stitution, 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 sug-
gesting the plan of such a restric-
tion; but care must be taken not
to overlook the peculiar arrange-
ments which made it so highly ex-
pedient, that it may be said to have
been a necessity, even if there had
been no British example.
2 C. Pinckney. Elliot, V. 189.
June 13.
3 On the question for restraining
the Senate from originating money
bills, New York, Delaware, Vir-
ginia, ay, 3; Massachusetts, Con-
necticut, New Jersey, Maryland,
North Carolina, South Carolina,
Georgia, no, 7. Ibid.
CH. IX.] REVENUE BILLS. 217
sentation in the two branches, the plan of restricting
the origin of money bills to the House of Represent-
atives presented itself in a new aspect. The larger
States were required to concede an equality of rep-
resentation 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 compen-
sation for the sacriﬁce required of them. It was so
reported by the committee of compromise; and al-
though 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,1
and thus formed a special feature of the resolutions
sent to the committee of detail. But those resolu-
tions had also established the equality of represen-
tation 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 disap-
proved of it on its merits; and when the article by
1 Elliot, v. 285. Ante, Chap. VIII.
voL. II. 28
218 FORMATION OF THE CONsTITUTIoN. [BOOK TV.
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.1 In
this vote there was a concurrence of very opposite
purposes on the part of the different States compos-
ing the majority. New Jersey, Delaware, and Mary-
land, for example, feeling secure of their equality
in the Senate, were not unwilling to allow theoret-
ical objections to prevail, against the restriction of
money bills to the branch in which they would ne-
cessarily be outnumbered. On the other hand, some
of the delegates of Pennsylvania, Virginia, and South
Carolina, still unwilling toacquiesce 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 represention
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.2 '
This party ﬁnally prevailed. They rested their
1 August 8. For striking out,
New Jersey, Pennsylvania, Dela-
ware, Maryland, Virginia, South
Carolina, Georgia, ay, 7; New
Hampshire, Massachusetts, Con-
necticut, North Carolina, no, 4.
9 Dr. Franklin, Mason, VVilliam-
son, 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 ac-
curacy 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.
on. 1x] REVENUE BILLS. 219
ﬁrst efforts chieﬂy upon the fact that the Senate
was to-represent the States in their political charac-
ter. 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 ambi-
guity, 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 al-
tered 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.1 An earnest and
somewhat excited debate followed this proposition,
but it was lost.L
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 govern-
ment.3
This new proposition was postponed for a long
time, until it became necessary to refer several top-
ics not ﬁnally acted upon to a committee of one
1 Moved by Randolph, August forward as an amendment to the
13 Elliot, V. 414. article (Art. VI. § 12) which was
2 Ibid, 420 to deﬁne the powers of the two
3 Moved by Mr. Strong, August houses.
15. Ibid. 427 . This was brought '
220 FORMATION OF THE CONSTITUTION. [BOOK 1v.
member from each State.1 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, pursu-
ant to the instructions of the Convention, the exec-
utive 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 oﬂice, 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
1 August 31. Elliot, V. 503.
on. IX.] REVENUE BILLS. 221
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 representa-
tives in Congress; that the person having the great-
est 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 combi-
nation 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
222 FORMATION OF THE CONSTITUTION. [BOOK Iv.
arrangements which tended to elevate the tone of
the government, by increasing the power and inﬂu-
ence 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.1
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 exec-
utive, when there failed to be a choice by the elec-
tors, 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.2
This change, if coupled with the concession of reve-
nue 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 amend-
ments, 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.3 »
1 Elliot, V. 506, 510, 511, 514. 2 Ibid. 519.
The privilege, as it came from this 3 The history of this provision
committee, was conﬁned to “ bills shows clearly that a bill for appro-
f'or raising revenue ”; and these priating money may originate in
were made subject to “ alterations the Senate.
and amendments by the Senate.”
on. 1x] QUALIFICATIONS or SENATORS. 223
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 partic-
ular 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 am-
bassadors and judges of the Supreme Court, without
the concurrent action of any other department of
the government. In addition to these special pow-
ers, 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 hear-
ing and determining questions of boundary between
the States.
This formidable array of powers, which were sub-
sequently 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
224 FORMATION OF THE CONSTITUTION. [BOOK Iv.
necessary to guard the Senate with peculiar care.
A very animated discussion, in which the same rea-
sons were urged ‘on both sides which had entered
into the debate on the qualiﬁcations of the representa-
tives, 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.1
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 enter-
tained, and was once sanctioned by a bare majority
of the States, of giving to both branches of the legis-
lature a proportional representation of the respective
populations of the States; and that the sole differ-
ence between the two chambers then contemplated
was to be in the mode of election. But in the ac-
tual situation of the different members of the confed-
eracy, 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, fact, have
made the ﬁrst Senate to consist of eighty or a hun-
dred persons, in order to have entitled the State of
1 August 9. Elliot, V. 398 - 401. the negative, and the vote of North
Massachusetts, Connecticut, Penn- Carolina was divided.
sylvania, and Maryland voted in
on. 1x4 NUMBER OF SENATORS. 225
Delaware to a single member. This inconvenience
was pointed out at an early period, by Rufus King ;1
but it did not prevent the adoption of this mode of
representation. On the one side of that long con-
tested 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 dis-
tricts, by the legislatures or the executives of the
States, or by the other branch of the national legis-
lature. So strongly, however, were some of the
members even from the most populous States im-"ﬂ
pressed 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 con-
cede to the State legislatures the choice of its mem-
bers, leaving the diﬂiculty arising from the magni-
tude of the body to be encountered as it might be.2
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;
1 May 31. Elliot, V. 133. 2 Dickinson, Gerry, Mason.
voL. 11. 29
226 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 compro-
mise 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 num-
bers 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 nume
ber 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 . iof
expediency and of principle-4r‘ , O
The constant aim of the States, ‘which had from
the ﬁrst opposed a radical change 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; butin practice, the delegations of the
States perpetually varied between these two num-
bers, 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, pro-
vided 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
CH. IX.] METHOD OF VOTING IN THE SENATE.
than once to notice the fact, - and it is one of no in-
considerable importance, — that the ﬁrst Continental
Congress, assembled in 1774, adopted the‘ plan of giv-P
ing 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 methodt 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 Ar-
ticles of Confederation were framed, in 1 '7 81, it ap-
pears as clearly from the discussions in Congress,
not only that the same diﬂ‘iculty of obtaining the
information necessary for a different system contin-
ued, 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 perpet-
uated down to the year 1787. It had come to be
regarded by some of the smaller States, notwithstand-
ing the injustice and inconvenience which it con-i
stantly 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.1 But it is obvious that, for this purpose, the
1 Sherman, Luther Martin, Ells- moved by Ellsworth, July 2, to
worth. On the naked proposition, allow each State 'one vote in the
228 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 sepa-
rate rights and interests of a State, the unanimity
which is certain to prevail among its representatives
makes the vote of. the State as eﬁicient as it could
be if it were requiredto be cast as a unit, while the
chances for its protection are increased by the oppor-
tunity 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 cap-
z'ta.1 The number of two was adopted as the most
convenient, under all the circumstances, because
most likely vto 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
Senate, Connecticut, New York, South Carolina, no, 5; Georgia
New Jersey, Delaware, Maryland, divided.
ay, 5; Massachusetts, Pennsyl- _1‘ Maryland alone voted against
Vania,‘ Virginia, North Carolina, it.
on. Ix] POWERS OF THE SENATE. 229
fact that the particular nature and form of the rep-
resentation in the Senate‘ was generally vacquiesced
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 dif-
ferent modes of supplying the vacancies that might
occur in them. The obvious way of effecting this
in the case ‘of a vacancy in the ofIice of a repre-
sentative was to order a vnew 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 func-
tionaries would be best informed‘ as to the conven- -
ience 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 incon-
venience. The committee of detail, therefore, pro-
vided 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 Sen-
ate, 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 pur-
pose of a Senate was that of a second legislative
230 FORMATION OF THE CONsTITUTION. [BOOK Iv.
chamber, having equal authority in all acts of legis-
lationwith the ﬁrst, the action of both being neces-
sary 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 charac-
ter 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 pecu-_
liar 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 depart-
ments, or their origin or relations, had been ﬁnally
settled. The consequence was, that for a time,
wherever ealousy was felt with regard to the exec-
utive 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, —-5 there was a ten-
dency to resort to the Senate.
-. Thus, when the committee of detail were charged
with the duty of preparing the Constitution accord-
ing to the resolutions agreed upon in the Conven-
tion, the Senate had not only ‘been .made a legisla-
. tive 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. sep-
arate 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
CH. IX.] POWERS OF THE SENATE.
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 al-
leged conﬂict between an act of . legislation and the
fundamental law of the Constitution. The system
thus marked out was carried into detail by the com-
mittee, by vesting in the Senate the power to make
treaties, to appoint ambassadors and judges of the
Supreme Court, and to‘ adjudicate questions of boun-
dary 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 pre-
scribed 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 a proper it
232 FORMATION OF THE CONSTITUTION. [BOOKIVZ
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 au-
thority 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 udicial 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 deter-
mined 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 pop-
ular tumults should be avoided, no government has
yet existed, in which the election of such a magis-
trate by the legislative department has afforded any
decided advantage over an election directly or indi-
rectly 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.
Cu. 1x] POWERS OF THE SENATE. 233
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 satisfac-
tory 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 representa-
tion 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 appoint-
ment 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 par-
ties to the dispute ; but practically, this would be a
tribunal not well ﬁtted to try a purely judicial ques-
tion. 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 re-
specting 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
\'01.. 11. 30
234 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 in-
vested with the appointment -of other functionaries,
how far it should control the relations of the coun-
try 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 repos-
ing greater powers in other departments, for adjust-
ing the relations of the system by a wider distribu-
tion 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 re-
striction of the power of the Senate, and an adjust-
ment 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 appoint-
ment of ambassadors, judges of the Supreme Court,
and all other oflicers not otherwise provided for, by
ca. Ix] POWERS or THE sENATE. . 235
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 ques-
tions of boundary was placed, like: other controver-
sies 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 pew-
er 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 takeaway the revisionary control of the Senate
over treaties and appointments, or: to devise some
modev by. which the President could be made. person-
ally 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 in-
eligible to the office a second timer There were two
236 . FORMATION OF THE ooNsTITUTIoN. [BOOK Iv.
serious objections to the last of these remedies, —— the
country might lose the services of a faithful and
experienced magistrate, whose continuance in oﬂice
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 through-
_ out ' the whole term of the incumbent who had been
successful over four other competitors.
And after all, what necessity was there for con-
ﬁding 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 elec-
tors, who, chosen for the express purpose, and dis-
solved 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 fram-
05. 1x] POWERS OF THE SENATE. 237
ers of the Constitution. They were to consider, not
only what was theoretically ﬁt and what would prac-
tically work with safety and success, but what would
beaccepted by the people for whom they were form-
ing these great institutions. That people undoubt-
edly 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 Parlia-
ment in which even the so-called popular branch
was then but another phase of the aristocracy which
ruled the empire. The worst enemy our grand-
fathers supposed they had in England, throughout-
their. Revolution, was the ministerial majority of
that House of Commons, made- up of placemen sit-
ting 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 conscien-
238 FORMATION~ OF THE CoNsTITUTIoN. [BOOK IV.
tiousness, was the real cause forv 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. “I But it had left‘them, as it
naturally must‘have left‘ them, with as strong preju-
dices and jealousies against every aristocratic, as
against every monarchical institution. Public lib-
erty in England they knew might consist with an
hereditary throne, and with a privileged and power-
ful aristocracy. But public liberty in America could
consist with neither._ The people ‘ of the United
States could submit to restraints; they could recog;
nize. the necessity for checks and balances in the dis;
tributiondof 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 con-
struction might ' be, — embracing but a small num-
ber of persons,_with power to elect the» chief magis-
trate, 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 ne'-
gotiate, and with power to sit in judgment on his
impeachment, they would not‘v endure. 5“ 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
on. IX.] , POWERS on THE SENATE. 289
avoid the substance of a monarchy and the sub-
stance 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 ex-
tended 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 ‘juris-
prudence, and the protection of the ‘local. constitu-
tions from violence, must have an army and a navy,
and great ﬁscal, administrative, and judicial establish-
ments, embracing a very numerous body of public
officers. To give the appointment of such a multi-
tude of public servants, invested with such functions,
to the unchecked authority of the President, would
be to ‘create an executive with power not less for-
midable and real than that of some monarchs, and
far greater than that of others. N 0 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 some;
where, and the only question was where it should
be placed- That it ought to be in a body indepen-'-‘
dent of the executive, and not in any council of min-
isters 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. - -
240 FORMATION OF THE CONSTITUTION. [BOOK Iv.
The negotiation of treaties was obviously a func-
tion 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 un-
willing to relax their hold upon the general govern-
ment; and the result was that provision of the Con-
stitution 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 pow-
ers, the Senate must have no voice in the appoint-
ment of the executive. There ‘were two modes in
which the election might be arranged, so as to pre-
vent 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; 1 the other was, to place the eventual
election no person having received a majority of
all the electoral votes —- in the House of Represent-
atives. 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 objec-
tions which had been urged against the length of
the senatorial term became of little consequence.
1 This suggestion was made by Hamilton. Elliot, V. 517.
on. 111.] SENATORIAL TERM. 241
In the preparation of the plan marked out in the
resolutions sent to the committee of detail, the Sen-
ate 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.1
Six years was adopted as an intermediate period be-
tween the longest and the shortest of the terms pro-
posed; and in order that there might be an infu-
sion of different views and tendencies from time to
time, it was provided that one third of the members
should go out of office biennially.2 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 in-
ﬂuence over the executive had been added, the sys-
tem would in all probability be rejected by the peo-
ple. But if the Senate were deprived of all agency
1 Madison, Hamilton, Wilson, and Read. Elliot, V. 241 - 245.
June 26. 2 Ibid.
"01.. II. 31
242 FORMATION OF THE CONSTITUTION. [BOOK Iv.
0
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 ob-
jection to such a term being removed, the complaint
of aristocratic tendencies would be conﬁned to those
who might wish to ﬁnd plausible reasons for opposi-
tion, and might not wish to be satisﬁed with the true
reasons for the provision.
Having now described the formation and the spe-
cial 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 sub-
jected.
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 ser-
vants, which, from the mode of its exercise, not ‘sel-
dom amounting ' to actual bribery, has received. the
appropriate name of parliamentary corruption. That
generation of the American people knew but little
— they cared less—aboutv the origin of a method
1 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,
CH. IX.] PARLIAMENTARY CORRUPTION.
by nearly every minister who had been at the head
of affairs; that, if this practice had not been intro-
duced 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 states-
men by whom that revolution was effected, and had
attained its greatest height under the ﬁrst two prin-
ces of the house of Hanover; that it was freely and
sometimes shamefully applied throughout the Amer-
ican 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.1
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
1 In Horace Walpole’s Memoirs '
of the Reign of George 11., there
is an amusing parallel - gravely
drawn, however -— between the
mode in which his father, Sir Bob-
ert, “traded for members,” and the
manner in which Mr. Pelham car-
ried on his corruption. Lord Ma-
hon has called Sir Robert Walpole
“the patron and parent of parlia-
mentary corruption.” (Hist. of
England, I. ,268.) But both Mr.
Hallam and Mr. Macaulay say that
it originated under Charles 11., and
both admit that it was practised
down to the close of the American
war. (Hallam’s Const. Hist., III.
255, 256, 3,51 - 356. Macaulay’s
Hist. of England, III. 541 —549.)
The latter, in a very masterly anal-
ysis of its origin and history, treats
it as a local disease, incident to the
growth of the English constitution.
It must he confessed, that it had
become chronic.
244 FORMATION OF THE CONSTITUTION. [BOOK Iv.
less powerful, because it came from the centre of in.-
stitutions with which they had been most familiar,
and from the country to which they traced their ori-
gin, -— a country in which parliamentary govern-
ment 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 he suffered to pass. Still less is it easy to say
that such inﬂuence ought not to exist at all; 1 al-
though it is not difficult to say that there are meth-
ods in which it should not he suffered to be exercised.
The more elevated and more clear-sighted public mo-
rality 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 partic-
ular measures or occasions, whatever may have been
1 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 author-
ity of a writer, whose high . moral
tone, and whose profound knowl-
edge of the constitution ‘on which
he has‘written, unite to make it un-
necessary 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 con-
ceivable circumstances, under the
control of the sovereign, whether
through intimidation or corrupt
subservience.” “ But,” he adds, “as
it would equally contradict notori-
ous truth to assert that every vote
has been disinterested and inde-
pendent, 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.) _ ,
./
on. 1x] EXECUTIVE INFLUENCE. » 2115
the consideration or motive of the bargain. But
whether that morality goes, or ought to vgo, 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 in-
evitably 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
246 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 com-
mence 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‘ differ-
ent 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 al-
lowed for supplying the want of wisdomor virtue in
one department by the wisdom or virtue of another.
In matters of government depending on mere dis-
cretion, unlimited conﬁdence cannot with safety be
placed anywhere.1 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
of a moral science, whose existence
is wholly independent of the will of
1 The position and functions of‘
the judiciary, after proper meas-
ures have been taken to secure in-
dividual 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
the particular udge. Whereas the
action of both the executive and
the legislative departments, within
the limits prescribed to it by the
fundamental law, involves the ex-
ercise, to a wide extent, ofmere in-
dividual discretion. The remedy
for a failure in the judge to justify
the conﬁdence reposed in him is,
therefore, only by impeachment.
ca. IX.] EXECUTIVE INFLUENCE. 247
character of the end. With these two propositions
admitted, what is to be done is to discover that ar-
rangement of the powers and relations of the different
departments whose acts involve, more or less, the ex-
ercise 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 legis-
lative and the executive departments are capable of
distinct separation. The oneis to make, the other
is to execute the laws. But execution of the laws
of necessity involves administration, and adminis-
tration 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 fre-
quently, and indeed constantly, to the discretion of
the other. If the executive is left at liberty to pur-
chase what it believes or alleges to be the right ex-
ercise of that discretion, by the inducements of money
or office applied'to a particular case, the rule of com-
mon morals is violated; conscience becomes false to
duty, and corruption, having once entered the body
politic, may be employed to eﬁ'ect bad ends as well
as good. Nay, as bad ends will stand most in need
248 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 out 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 op-
posite mischiefs, all that human wisdom and fore-
- Sight 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 polit-
ical 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 ex-
ecutive and the legislature. During a considerable
period, however, of their deliberations on the dis-
abilities 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
CH. IX.] EXECUTIVE INFLUENCE.
249
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, renderedv 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 con-
dition 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 ;1 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 Ed-
mund Randolph, brought forward their scheme of
1 The legislature of Massachu-
setts had, before Congress recom-
mended the national Convention,
instructed its delegates in Congress
not to agree to any modiﬁcation of
the ﬁfth Article of the Confedera-
tion, which prohibited the members
of Congress from holding any office
under the United States, for which
they or any other person for their
von. 11. 32
beneﬁt could receive any salary,
fee, or emolument. This instruc-
tion was repealed, by the unquali-
ﬁed 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.
250 FORMATION OF THE CoNsTITUTION. [BOOK Iv.
government, they not only gave the executive no
power of appointment to any office, but they pro-
posed 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 im-'
puted to the Congress, and which they declared had
been grossly practised by their own legislature.1
They proposed, _therefore, to go beyond the Con-
federation, 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 ex-
piration. 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 disquali-
ﬁcation. 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 affect-
‘ed by their own votes, as an encouragement to the
legislative service. But there were several of the
1 See the assertion by Mr. Mason, and the admission by Mr. Madison,
Elliot, V. 230, 232. 1
on. IX.] DISQUALIFICATIONS or MEMBERS. 251
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 en-
ter the legislature.1 This was a question on which
different minds, of equal sagacity and equal puri-
ty, would naturally arrive at different conclusions.
Still, it is apparent that the mischiefs most appre-
hended 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 execu-
tive, 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 appoinment, 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.2 In this
way, the disqualiﬁcation became incorporated into
1 Butler, Mason, and Rutledge. son’s amendment. June 23. EL-
9 Two States only, Connecticut liot, V. 230-233.
and New Jersey, voted for Madi- '
252 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the ﬁrst draft 'of the Constitution, prepared by the
committee of detail.1
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 set-
tled that he was to appoint to all oflices not other-
wise provided for, and the cases thus excepted were
those of judges and ambassadors, which stood, in
this draft vof 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 orreject them. Accord-
ingly, 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 oflicers
of the army and navy from the legislature; of ren-
dering 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 de-
nied.2 At length, a middle course became necessary,
1 The disqualiﬁcation, as ap- committee of detail. Elliot, V.
plied to members of both houses, 377. ‘
was incorporated into one clause. 2 See the debate, August 14.
Art. VI. § 9 of the draft of the Elliot, V. 420-425.
on. 1x] ExEcUTIvE INFLUENCE. 253
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 in-
creased, during the term of membership ;1 and a seat
in the legislature was made incompatible with any
other office under the United States.2
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 appoint-
ing 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 in-
ﬂuence 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
1 There was a majority of only 2 This provision received aunan-
one State in favor of this principle. imous vote. Ibid.
Elliot, V. 506.. .
254 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the higher officers of state had been admitted to hold
seats in the legislature. Under the English consti-
tution, 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 prin-
ciple 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 administra-
tion; but that it is not at all necessary, and not
useful, to allow the. privilege of sitting in ‘Parlia-
ment to subordinate officers.1 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, i
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
1 For the history of what have 351. Macaulay, IV. 336 — 338,
been called place-bills, see Hal- 339, 341, 342, 479, 480, 528.
lam’s Const. Hist, III. 255, 256, . -
CH. IX.] EXECUTIVE INFLUENCE.
exact principles than by the results of their suc-
cessive 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 pre-
paring the Constitution of the United States, its
framers had no prerogative, in any way resembling
that of the crown of England, to consider and pro-
vide for. The separate powers to be conferred on
the chief magistracy —— aside from its concurrence in
legislation — were simply executive and administra-
tive; 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, there-
fore, 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.
256 FORMATION OF THE CONSTITUTION. [BOOK Iv.
The prevailing opinion was that this was not re-
quired. This opinion was undoubtedly formed un-
der the fear of corruption and the jealousy of execu-
tive 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 pos-
sible 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 com-
munication would have been promoted, —— if some of
the higher oflicers of state could have been allowed
to hold seats in either house of Congess. 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.1
1 Mr. Justice Story has suggest-
ed, that, “ if it would not have been
safe to trust the heads of depart-
ments, as representatives, to the
choice of the people, as their con-
stituents, it would have been at
least some gain to have allowed
them a seat, like territorial dele-
gates, in the House of Represent-
atives, where they might freely
debate without a title to vote.”
(Commentaries on the Constitu-
tion, I. § 869.) An officer of an
executive department, thus admit-
ted to a seat in Congress, must
have been placed there merely in
virtue of his office, by a special
provision. He could have repre-
sented no real constituency, and
must therefore have had an anom-
alous position. A territorial dele-
gate is admitted as the represent-
ative of a dependency, somewhat
colonial in its nature, whose inhab-
itants are not on an equal footing
with the constituencies of the States.
He has therefore no vote. W'hen
speaking for the interests of those
whom he represents, he is in some-
what the same attitude as counsel
admitted to be heard at the bar of
the House. Whether the head of
Ca. 111.] TIME AND PLACE FOR ELECTIONS. 257
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
provision1 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 al-
tering the regulations of the States; and this author-
ity extended as well to the place of choosing the
senators, as to all the other circumstances of the
election.2 In the Convention, however, the author-
ity 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.3 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.4 But the text of the Consti-
tution, 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 regu-
lation exists at the time or not.
There is one other peculiarity of the American
an executive department could with 2 Art. VI. § 1 of the ﬁrst
dignity and convenience be placed draft.
in a similar position, admits at least 3 Madison, Elliot, V. 401, 402.
of grave doubt. Journal, Elliot, 1. 309.
1 Art. I. § 4 of the Constitution. 4 Elliot, V. 402.
vor.. 11. 33
258 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 wheth-
er they were to be paid by the States, or from the
national treasury. The committee of the whole de-
termined 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 differ-
ence 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 de-
bate.‘ There was thus introduced into the resolu-
tions 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 re-
ceive “ 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
1 Elliot, V. 24 7.
CH. IX.] PAY OF MEMBERS.
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 Con-
stitution should establish the amount, or should
leave it to be regulated by the Congress itself, they
provided that the members of each house should re-
ceive a compensation for their services, to be ascer-
tained and paid by the State in which they should
be chosen.1
This, however, was to encounter far greater evils
than it avoided. If paid by their States, the mem-
bers of the national legislature would not only re-
ceive different compensations, but they would be
directly subjected to the prejudices, caprices, and
political purposes of the State legislatures. What-
ever 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 consequen-
ces. A large majority of the States, therefore, de-
cided upon payment out of the national treasury,2
1 Art. VI. § 10 of the ﬁrst draft. 2 Massachusetts and South Car-
Elliot, V. 378. olina in the negative.
260 FORMATION OF THE CONSTITUTION. [BOOK Iv.
‘and it was ﬁnally determined that the rate of com-
pensation should not be ﬁxed by the Constitution,
but should be left to be ascertained by law.1
Among the separate functions assigned by the
Constitution to the houses of Congress are those of
presenting and trying impeachments. An impeach-
ment, 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. Al-
though 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 com-
mitted by public oﬂicers, for the institution of any
special proceeding for the inﬂiction of the punish-
ment prescribed by the laws, since they, like all
other persons, are amenable to the ordinary jurisdic-
tion of the courts of justice, in respect of offences
against positive law. The purposes of an impeach-
ment 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
1 See the discussion on Art. VI. § 10 of the ﬁrst draft. Elliot, V.
425 —427.
on. 1x] - IMrEAcnMENTs. 261
exist, where no offence against positive law has been
committed, as where the individual has, from immo-
rality or imbecility or maleadministration, become
unﬁt to exercise the office. The rules by which an
impeachment is to be determined are therefore pe-
culiar, and are not fully embraced by those princi-
ples 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 alter-
native to this plan was to create a special tribunal
for the sole purpose of trying impeachments of the
President and other oﬂicers. This was justly deemed
a manifest inconvenience; and although there were
262 FORMATION OF THE CONSTITUTION. [BOOK Iv.
various theoretical objections suggested against pla-
cing the trial in the Senate, on the question_ being
stated there were found to be but two dissentient
States.‘ This point having been settled, in relation
to impeachments of the President, the trial of im-
peachments of all other civil officers of the United
States was, for the sake of uniformity, also conﬁded
to the Senate? The. power of impeachment was con-
ﬁned, as originally proposed, to the House of Rep-
resentatives.3
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 inter-
ests. 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.4
Provisions making each house the judge of the
elections, returns, and qualiﬁcations of its own mem-
1 Pennsylvania and Virginia. see the Index, verb. Impeach-
9 See Elliot, V. 507, 528, 529. . ment.
3 As to the other provisions of 4 Elliot, V. 405, 406. Art. I.
the Constitution on this subject, §5 of the Constitution.
cH.1x.]' PRESIDENT or THE SENATE. 263
bers ; 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.1
The power of each house to determine the rules
of its proceedings, to punish its members for disor-
derly behavior, and to expel With the concurrence
of tWo thirds, Was agreed to With general assent.2
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 judg-
ment require secrecy; and one ﬁfth of the members
present in either house Were empowered to require I
the yeas and nays to be entered on its journal.3
The report of the committee of detail had made
no provision for such an officer as the Vice-Presi-
dent 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 re-
port 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
1 Elliot, V. 406. Constitution, 3 Elliot, V. 407. Constitution,
Art. I. §§ 5, 6. Art. I. § 5.
2 Elliot, V. 40 7. Constitution,
Art. ‘I. § 5.
264 FORMATION OF THE CONSTITUTION. [BOOK Iv.
ea? oﬂicz'o the presiding officer of the Senate, giving
him' a vote only in cases where the votes of the
members are equally divided.1 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.2 The House of Representatives were em-
powered to choose their own Speaker, and other
officers, as originally proposed.3
The mode in which laws were to be enacted was
the last topic concerning the action of the legisla-
ture which required to be dealt with in the Consti-
tution. The principle had been already settled, that
the negative of the President should arrest the pass
sage of a law, unless, after he had refused his con-
currence, 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 fol-
lowing 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
1 Elliot, V. 507, 520. Constitu- 2 Ibid.
tion, Art. I. § 3. 3 Art. I. § 2.
on. IX.] PRESIDENTS NEGATIVE. 265
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 Presi-
dent 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, resolu-
tions, and votes to which the concurrence of both .
houses is necessary, (except on a question of ad-
journment,) are subject to these provisions.1
The two important differences between the nega-
tive 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 par-
liamentary 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
_ 1 Constitution, Art. I. § 7.
von. 11. 34
266 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 respon-
sibility for the measures to which he gives his
official approval, while they give him an impor-
tant inﬂuence over the ﬁnal action of the legis-
lature upon those which he refuses , to sanction;
and, on the other hand, they establish a wide dis-
tinction between his negative and that of the
King in England. The latter has none bujt 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 dis-
used 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 practi-
cally 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’
cn. 1x.) PRESIDENTS NEGATIVE. 267
his views of a measure, while it is under the con-
sideration of either house. For this reason, and
because the President himself is responsible to the
people for his ofﬁcial acts, and in order to accom-
pany ‘ 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.1 __
1 A question has been made,
whether it is competent to two
thirds of the members present in
each house to pass a bill notwith-
standing 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 lan-
guage employed in the resolutions,
in all the stages through which they
passed, was, that “ The national ex-
ecutive shall have a right to nega—
tive 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 incorpo-
rated into the Constitution, there
could have been no question but
that its meaning would have been,
that the bill must be atterwards
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 mean-
ing being made technical by the
Constitution itself. Before the com-
mittee came to carry out the reso-
lution 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 quo-
rum to do business. This expres-
sion, 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 al-
ways means, when so used, the
constitutional quorum, assembled
for the transaction of business, and
capable of transacting business.
This same expression was em-
ployed 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 origi-
‘268 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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, follow-
ing 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 neigh-
nated,”—that is to say, to a con-
stitutional quorum, a majority of
which passed it in the ﬁrst in-
stance; and they then provided,
that, if “two thirds of that HOUSE
shall agree to pass the bill, it shall
be sent, together with the objec-
tions, 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 obvi-
ous 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 nation-
al legislature” had been retained.
(See ElllOt, 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 Ofits proceedings, punish its
members for disorderly behavior,
and, with the concurrence of two
thirds, expel a member.” (Art. I.
§ 5,) The context of the same
article deﬁnes what is to consti-
tute a “ house,” and makes it
clear that two thirds of a “ house ”
may expel. That this was the in-
tention is also clear from what took
place in the Convention. Mr. Mad-
ison objected to the provision as it
stood on the report of the com—
mittee, 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. (El-
liot, V. 406, 407.) In like man-
ner, the ﬁfth Article of the Consti-
tution empowers Congress, “when-
ever 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 express
CH. IX]
SEAT OF GOVERNMENT.
borhood, 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.1 There, in the following October,
a resolution was passed, directing that buildings for
the use of Congress should be erected at some suit-
able place near the falls of the Delaware; for which
the right of soil and an exclusive urisdiction should
be obtained? But this was entirely unsatisfactory
to the Southern States. They complained that the
place selected was not central, was unfavorable to
sion, 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 pres-
ent” ; 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 par-
ticular provision, as when it re-
quires 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 func-
tion 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 “ ad-
vice 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, be—
cause no term had preceded it
which would guide the construc-
tion- 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 under-
stood, and makes it, as I humbly
conceive, two thirds of a constitu-
tional quorum. ~
1 Ante, Vol. I. 220, note, 226,
note. , .
9 October 6,1 783, J ournals,VIII.
423.
2'70 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the Union, and unjust to them. They endeavored
to procure a reconsideration of the vote, but without
success.1 Several days were then consumed in fruit-
less efforts to agree 011 a temporary residence; and
at length it became apparent that there was no pros-
peot 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 George-
town; and that until both places, that on the Dela-
ware 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 atAnnapolis, 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
1 October 8. Ibid. 424, 425.
on. Dr] SEAT or GOVERNMENT. 271
that place.1 The‘ plan of two capitols in different
places was then rescinded,2 and an ordinance was
passed, for the appointment of commissioners to es-
tablish 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 recep-
tion, the ordinance provided that Congress should
sit' at the city of New York.3 When assembled
there in January, 1785, they received and accept-
ed 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.4
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 fed-
eral 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 pro-
ject, 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
1 December 10, 11, 1 784. Jour- 4 They removed from it October
nals, X. 16 - 18. p 2, 1788, on a notice from the May-
'2 December 20, 21. Ibid. 23, 24. or of’ the city that repairs were to
3 Passed December 23. Ibid. 29. be made.
272 FORMATION or THE CONSTITUTION. [BOOK IV.
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 magniﬁ-
cent 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; oﬂicial
residences for the president and secretary of Con-
gress, and the secretaries of foreign affairs, of war,
of the marine, and the oﬁicers of the treasury; be-
sides 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 com-
pletion of all the public ediﬁces, ——excepting those
which were to belong to the States,——“ in an ele-
gant manner,” were authorized to draw on the fed-
eral 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 ex-
pected 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.
on, IX.] . sEAT OF GOVERNMENT. 273
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 mil-
lions, provision has been made for the central func-
. tions of a government, whose daily expenditure
exceeds the entire sum appropriated for the estab-
lishment of the necessary public buildings and offi-
cial residences seventy years ago. '
In truth, however, there is not much reason to
suppose that the Congress of the Confederation se-
riously 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 r 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 in-
tended. 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 en-
tertained. 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 im-
von. 11. 35
274 FORMATION OF THE CONSTITUTION. [BOOK Iv.
mediately to the summoning of the national Conven-
tion.‘ And it was especially fortunate that this
whole subject came before the Convention unem-
barrassed with a previous choice of place by the old
Congress, or with any steps concerning municipal
jurisdiction which they might have taken, or omit-
ted. , ~
For it was no easy matter, in the temper of the
public mind existing from 1783 to 1788, to deter-
mine where the seat of the federal, or that of the
national government, ought to be placed. The Con-
vention found this an unsettled question, and they
wisely determined to leave it so. The cities of New
York and Philadelphia had wishes and expecta-
tions, and it was quite expedient that the Constitu-
tion 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 ju-
risdiction of any State, or in a district to be exclu-
sively 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? Tem-
porarily, however, the new government must ' be
placed somewhere within the limits of a State, and
1 See ante, Vol. I. pp. 358- 2 See the conversation reported
361. by Madison, Elliot, V. 374.
CH. IX] SEAT OF GOVERNMENT.
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 neces-
sary 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 disagree-
ment 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, with-
out 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 de-
manded 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
27 6 FORMATION OF THE CONSTITUTION. [BOOK 1v.
be removed if alaw were made necessary. The pro-
vision reported by the committee was therefore re-
tained, 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.1
Still it was needful that the Constitution should
empower the legislature to establish a seat of gov-
ernment 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 in-
dependence, 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 urisdiction would
probably be found, after the adoption of the Consti-
tution, to outweigh all other considerations. Ac-
cordingly, when the Constitution was revised for the
purpose‘ of supplying the needful provisions omitted
1 Elliot, V. 409, 410. See ident to assemble and adjourn
post, as to the power of the Pres- Congress.
en. IX.], ~ sEssIoN or CONGRESS. 277
in its preparation, it was determined that no peremp-
~ tory 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 ex-
clusive legislation, in all cases, over such district, not
exceeding ten. miles square, as might, by cession of
particular States and the acceptance of Congress, be-
come 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 Co-
lumbia, which it governs in its capacity of the legis-
lature 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 be-
tween 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 in-
structions 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 Constitu-
tion, 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 Decem-
278 FORMATION OF THE CONSTITUTION. [BOOK Iv.
her as the time of their commencement, unless a dif-
ferent day shall be appointed by law, was adopted as
a compromise of different views.1
1 Mr. Justice Story has stated in is a mistake. The clause was con-
his Commentaries (§ 829), that this tained in the draft of the committee
clause came into the Constitution of detail, and was modiﬁed as stated
in the revised draft, near the close in the text, on the 7th of August,
of the Convention, and was silently after a. full debate. Elliot, V. 377,
adopted, without opposition. This 383 - 385.
CHAPTER X.
REPORT OF THE CoMMITTEE 0F DETAIL, coNTINUEn.—-THE Pow-
ERS 0F CoNGREss.—THE GRAND CoMPRoMIsEs OF THE CoN-
STITUTION 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 pro-
visions concerning vthe 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 de-
termined with precision. The powers of this legis-
lature had been described only in very general terms.
It was to have “ the legislative rights vested in Con-
gress 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
280 FORMATION or THE CONSTITUTION. [BOOK 1v.
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 resolu-
tion, 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 legis-
lation, 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?
on. x.] ExPoRTs AND THE SLAVE-TRADE.- 281
twice given Tnotice that South Carolina ‘could not‘
accede to the new Union proposed, if it possessed a
power to tax exports.1 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 fol-
low an admission of the blacks into the rule of
representation, was one , great obstacle, in the view
of the N orthern' States, to such an admission; and ,5
at the same time, that it was very doubtful whether
all the Southern States would surrender to the gen-
eral government the power to prohibit that trade?
The compromise which had already taken place on
the subject of representation had settled the prin.
ciples 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 satis-
factory 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.3 It is necessary,
therefore, to look carefully at these two subjects,
1 See Madison, Elliot, V. 302,
357.
9 See the remarks of Gouver-
neur Morris in the debate on the
apportionment of representatives,
_ in which he stated the dilemma
precisely in this way. Elliot, V.
301.
3 No candid man, said Rufus
King, could undertake to _ justify
voL. II. 36
to them a system under which
slaves were to continue to be im—
ported, and to be represented,
while ‘the exports produced by _
their labor were not to pay any
part of the expenses of the gov-
ernment which would be obliged
to defend their masters against
domestic insurrections or foreign
attacks. Elliot, V. 391.
282 FORMATION OF THE CONSTITUTION. [BOOK Iv.
namely, the taxation of- exports and the prohi-
bition 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 maybe 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 in-
dustrial pursuits of its people, although it may have
other and sufficient sources of revenue; and there-
fore,‘ until an unrestricted commercial intercourse
and a free exchange of commodities become the
general policy of the world, to deny to any gov-
ernment 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
on. x] , - EXPORTS. 283
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 pro-
duction 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 com-
modity produced by other nations.
At the time of the formation of the Constitution
of the United States, there was not a single produc-
tion, common to all the States, of suﬂicient impor-
tance 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 boun-
dary 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 pro-
284 FORMATION OF THE CONSTITUTION. [BOOK Iv.
ducea or manufactured at the North. How, for ex-
ample, 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 lum-
ber or ﬁsh or ﬂour of other States? Possibly, after
long experience and the‘ accumulation of the neces-
sary statistics, an approach towards an equality of
such burdens might have been made; but it could
never have become more than an unsatisfactory ap-
proximation; and while the effect of such a tax at
one end of the Union on the demand for the com-
modity subjected to it might be estimated, -.-because
the opportunity for other nations to supply them-
selves 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, Gou-
verneur Morris, and Dickinson are known “to have
0.1.x] , SLAVE-TRADE. ‘ 285
held the opinion, that the government would be in-
complete, without a power to tax exports as well as-
imports. But the decided stand taken by South
Carolina, whose exports for a single year were, said
by General Pinckney to have amounted to £ 600,000,
the fruit of the labor of her slaves, probably led the
committee of detail to insert in their report of a draft
of the Constitution a distinct prohibition against
laying any tax or duty on articles exported from any
State. .
A similar question, in relation to the extent of the
commercial power, was destined to arise out of the
relations of the different States to the slave-trade.
If the power to regulate commerce, that might be
conferred upon the general government, was to be
universal and unlimited, it must include the right
to prohibit the importation of slaves. If the right
to sanction or tolerate the importation of slaves,
which, like all other political rights, belonged to
the people of the several States as sovereign com-
munities, was to be retained by them as an excep-
tion from the commercial power which they might
confer upon the national legislature, that exception
must be clearly and deﬁnitely. established. For sev-
eral reasons, the question was necessarily to be met,
as soon as the character and extent of the commer-
cial 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
286 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 cer-
tain ratio, created a strong political motive with the
Northern States to obtain for the general govern-
ment 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 cir-
cumstances of their actual situation would admit.
What was practicable to be done, from considera-
tions 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 Con-
stitution, including many of those who represented
Slaveholding constituencies, as well as the repre-
sentatives of States that had either abolished both
the traffic in slaves and the institution itself, or
were obviously destined to do it.
i This just and necessary rule of action, however,
which limited their efforts to what the actual cir-
cumstances 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 ac-
on. x.) SLAVE-TRADE. 287
complished, if the consent of the people of the States
could be obtained, without trenching on their sover-
eign control over the condition of all persons within
their respective limits. It involved only the surren-
der of a right to add to the numbers of their slaves
by continued importations. But the power to deter-
mine whether the slaves then within their limits
should remain in that condition, could not be sur-
rendered by the people of the States, without over-
turning 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 es-
tablishment 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 con-
gressional representation by bringing slaves from
Africa; and so far as they acted from motives of
general justice and humanity, they designed to ter-
minate 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 right-
fully left in the care and dominion of those on whom
they have been cast, is a proposition of morals en-
tirely ﬁt to be admitted by a Christian statesman.
288 FORMATION OF THE coNsTITUTIoN. [Book Iv.
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 south-
ern States may have still required foreign supplies
in order to keep the lands already occupied under
cultivation, or to make new lands productive.1 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 Con-
stitution was to be framed were sent to the commit‘
1 See the remarks of Mr. Ells- reported by Mr. Madison, Elliot
‘worth and General Pinckney, as, v. 458,459. - . -
on. x] SLAVE-TRADE. 289
tee 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 ac-
tion of the Convention had gone, an unrestricted
choice between a full and a limited commercial pow-
er. They consisted of three members from non-
slaveholding and two from slaveholding States; 1 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 Geor-
gia, there can be no doubt that he announced the
same determination in the committee. In their re-
port, they shaped the commercial power accordingly.
‘They provided that the legislature of the United
States should have power to lay and collect taxes,
duties, irnposts, and excises; and to regulate com;
merce 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
until after the year 1840. The
United States census for 17 90 re-
turned 2,759 slaves for Connect-
1 They were Messrs. Rutledge,
Randolph, Gorham, Ellsworth, and
\Vilson. I have classed Mr. Ells-
worth among the representatives
of non-slaveholding States; for al@
though there were between. two
and three thousand slaves in Con-
necticut at this time, provision had
already been-made for its‘ prospec-
tive and gradual abolition. It was
not ﬁnally extinct in that State
vor.. 11. 37
icut; the census for 1840 returned
17 ; in the census for 1850 none
were returned. A like gradual
abolition took place in New Hamp-
shire, Rhode Island,_Vermont, New
York, and Pennsylvania. In Mas-
sachusetts, slavery was abolished by
the State Constitution of 1780.
290 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 mem-
bers present in each house.
That the new government must have a direct rev-
enue power, was generally conceded,- and it was also
generally admitted that it must have a power to reg- I
ulate commerce with foreign countries. But the
idea was more or less prevalent among the Southern
statesmen, that the interest of their own States, con-
sidered 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 Car-
olina; 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 ship-
ping ; -— it might certainly be considered that an un-
restricted foreign intercourse was important to them.
on. x.] REGULATION or coMMEReE. 291
But, on the other hand, if those States, by cloth-
ing 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 com-
mercial 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, how-
ever, 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 ‘hithertov
practised against each other.1 ‘
Still, these advantages were indirect or incidental.
The immediate and palpable commercial interests of
different portions of v 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 reason-
ably desire to qualify by some restriction.
On the reception of the report of the committee
of detail, and when the article relating to represent-
ation was reached, the consequences of agreeing that
1 See the remarks of Mr. Madison, Elliot, v. 490.
292 FORMATION OF THE CONSTITUTION. [BOOK IV.’
I
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 importa-
tion, and with the exemption of exports from tax-
ation, 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; ex-
ports 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 princi-
pal 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 in-
troduce 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
on. x; REVENUE AND COMMERCIAL POWERS. 293
exports should be taxable; -—perhaps he could not
ﬁnally consent to it, under any circumstances.1
Gouverneur Morris, ‘with his accustomed ardor,
went further still, and insisted on re-opening the
subject of representation’, now that the other fea-
tures 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 N orth-
ern States. It was idle, he declared, to say that
direct taxation might be levied upon the slave-
holding 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.2
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 prac-
tical solution of a great difficulty. Mr. Morris’s
motion received the vote of a single State only.3
The great majority of the delegations considered
it wiser to go on to the discussion of the proposed
1 Madison, Elliot, V. 391, 392. 3 New Jersey.
2 Ibid. 392, 393.
294 FORMATION OF THE CONSTITUTION. [BOOK IV.
restrictions upon the revenue and commercial pow-
ers, in the hope that each of them might be con- '
sidered 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 govern-
ment should have a complete revenue power, con-
tended 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 fa-
cility with which such objects could be selected for
taxation alarmed the States whose products pre-
sented the best opportunity for exercising this pow-
er. 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 pro-
ductions.‘ ‘
1 The opposition to a power to Carolina and Georgia. Ellsworth
tax exports was not conﬁned to the and Sherman of Connecticut, Ma-
members from North and South son of Virginia, and Gerry of Mas
CH. X.] REVENUE AND COMMERCIAL POWERS.
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 pro-
ducts of other States exported through their mari-
time 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 gen-
eral 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 op-
pression 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 legis-
lature the former were to have thirty-six votes, and
the latter twenty-nine. I
From considerations like these, united with others
sachusetts considered such a power of being exercised with equality
wrong in principle, and incapable and justice;
296 FORMATION OF THE CONSTITUTION. [BOOK Iv.
which would render it nearly impracticable to select
the objects of such taxation so as to make it operate
equally, the restriction prevailed.1 The revenue
power was thus shorri of one great branch of tax-
ation, which, however difficult it might be to prac-
tise 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 au-
thority over the external trade of the States’! Were
the States, whose great homogeneous products, de-
rived from the labor of slaves, would supply no rev-
enue 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
1 The vote was taken (August shire, New Jersey, Pennsylvania,
21) upon so much of the fourth sec-
tion of the seventh article of the re-
ported draft, as affirmed that “ no
tax or duty shall be laid by the
legislature on articles exported from
any State.” Massachusetts, Con-
necticut, Maryland, Virginia (Gen-
eral Washington and Mr. Madison
no), North Carolina, South Caro-
lina, Georgia, ay, 7 ; New Hamp-
Delaware, no, 4.—~If the subject
had been left in this position, ex—
ports would have been taxable by
the States. The plan of restrain-
ing 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.
CH. X.] REVENUE AND COMMERCIAL POWERS.
into foreign bottoms, and be unable to protect their
interests by a majority of votes in the national legis-
lature’! Was there to be no advantageous commer-
cial treaty obtained from any foreign power, un-
less 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 suﬁ'rages had been
given for the exemption, not from‘ motives of a sec-
tional 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 princi-
ple. 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 com-
mercial power was, whether they should or should
not be parties to the Union. If required to surren-
der 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.l It
was also manifest, that the clause which required? a
navigation act to be passed by two thirds of each
1 Elliot, V. 457-461.
von. 11. 38
298 FORMATION or THE CONSTITUTION. [BOOK 1v.
house, was to be insisted on I by some, although not
by all, of the Southern membe _
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 them-
selves bound as a class to insist on certain conces-
sions, 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 com-
mercial policy of England and other European na-
tions, 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.1 Besides these consider-
ations, 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, al-
though needed for the protection of commerce, was
1 See ante, Vol. I. Book III. Chap. IV., on the origin and necessity of
the commercial power.
CH. X.j REVENUE AND COMMERCIAL POWERS.
also required for the defence of the whole country,
made it necessary that the power to pass a naviga-
tion. actshould be burdened with no serious restric-
tions.
The idea of requiring a vote of two thirds in Con-
gress for the passage of a navigation act, founded
on the assumed diversity of Northern and Southern,
or the commercial and the planting interests, pro-
ceeded 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 to-
gether.
It was undoubtedly, the j purpose .of those who
sought for this particular restriction, to qualify the
nature of the government, in its relation .to the in-
terests of commerce. But the real question was,
whether there existed any necessary reason for pla-
300 FORMATION OF THE CONSTITUTION. [BOOK Iv.
cing those interests upon a different footing from
that of all other subj ects 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 ob-
struct 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 ne-
cessary.
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 Pennsylva-
nia, 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 agri-
cultural, 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
CH. x] PROPOSITION OE COMPROMISE. 301
shores of the Atlantic. All these States, existing
and expectant, were interested to obtain commercial
treaties with foreign countries; all needed the bene-
ﬁts 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 major-
ity, in these more minute diversities of interest, but
there were also two very eﬁicient legislative checks
upon that power already introduced into the govern-
ment. 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 limi-
tations 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 limi-
tation upon the power of the Union over this traffic
the condition of their accepting the Constitution.
This debate was closed by the proposition of Gou-
verneur Morris, to refer the whole subject to a com-
302 FORMATION or THE CONSTITUTION. [BOOK 1v.
mittee“ of one from each State, in ‘order that the
three matters of exports, the slave-trade, and a nav-
igation act might form a bargain or compromise
between the Northern and the Southern States.1
But the prohibition against taxing exports had
already been agreed to, and there remained to be
committed only the proposed restriction against tax-
ing 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 con-
form 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 thi
committee; but as each State was equally repre-
sented in it, and as the position of the different
sectional objects is quite clear, we can have no dif-
ﬁculty 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-
1 Elliot, V. 460.
CH. X.] ARRANGEMENT OF THE COMPROMISE.
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 ex-
emption, they could derive beneﬁts from the Con-
stitution as great as those likely to be enjoyed by
their. Northern confederates. Both parties, there-
fore, 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, includ-
ing the slave-trade and navigation laws, to be de-
pendent 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 naviga-
tion 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 overall 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
304 FORMATION OF THE coNsTITUTIoN.
[Boox IV.
obtain the continuance of the slave-trade for a lim-
ited 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 cap-
itation tax should remain; and that the provision
requiring a navigation act to be passed by a vote of
two thirds, should be stricken out.1
No change was made in this arrangement, when
it came before the Convention, except to sub-
stitute the year 1808 as the period at which the
restriction on the commercial power was to termi-
nate, and to provide for a speciﬁc tax on the im-
portation of slaves, not exceeding ten dollars on
each person.2 The remaining features of this set-
1 Elliot, V. 470, 471.
2 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 ap-
prehended 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 Gen-
eral Pinckney’s motion, show ‘the
convictions then entertained. The
other objection (urged by Roger
Sherman and Mr. Madison) was,
CH. X.] ARRANGEMENT OF THE COMPROMISE.
tlement, relating to a capitation tax and a naviga-
tion act, were sanctioned by a large majority of the
States.1
Thus, by timely and well-considered concessions
on each side, was the slave-trade brought imme-
diately 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~commercia1 power, without any
other restriction than that relating to the temporary
toleration of the importation of slaves, was vested in
that to lay a tax upon imported
slaves implied an acknowledgment
that men could be articles of prop-
erty. 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 ap-
pears 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 dis-
courage the introduction of con-
victs.
But the principal object was
undoubtedly the slave-trade; and
this particular phraseology was em-
ployed, 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
voL. II 39
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.
1 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 Car-
olina, South Carolina, Georgia, ay,
7 ; New Jersey, Pennsylvania, Del-
aware, Virginia, no, 4. Maryland,
Virginia, North Carolina,and Geor-
gia voted for a proposition made by
C. Pinckney, to postpone the re-
port, in order to take up a clause
requiring all commercial regula-
tions to be passed by two thirds
of each house. But on the rejec-
tion of this motion, the report of
the compromise committee, recom-
mending that a two-thirds vote for a
navigation act be stricken out, was
agreed to, nem. 0011.; as was also
the clause relating to a capitation
tax.
306 FORMATION OF THE CONSTITUTION. [BOOK IV.
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.1..- ~
T 00 high an estimate cannot well be formed, of the
importance and value of this ﬁnal settlement of con-
ﬂicting sectional interests and demands. History
has to thank the patriotism and liberality of the
Northern States, for having acquired, for the gov-
ernment 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 cupid-
ity, which knows no geographical limits, which de-
ﬁes public opinion whether in the North or in the
South, required and still requires the restraint and
chastisement of national power. The separate au-
thority of the States would have been wholly un-
equal 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 al-
ways been reaped in this inhuman trade.
The just and candid voice of History has also to
1 See the note on the American abolition of the slave-trade, ante, Vol.
I. p. 460.
on. x] VALUE or THE COMPROMISE. 307
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 insurrec-
tion, 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 in-
terests of a great empire, whose foundations ought
to be laid broadly and deeply on the national wel-
fare.1 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.2
They saw and admitted the necessity for an unre-
strained 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 ac-
1 See the remarks of John Rut- ? General Pinckney. Ibid. 489.
ledge. Madison, Elliot, V. 491.
308
FORMATION OF THE CONSTITUTION. [BOOK IV.
tion, they enabled the States of North Carolina,
South Carolina, and Georgia to enter the new
Union without humiliation and without loss.1
which elapsed from 1790 to 1810
during eighteen of which the im-
portation 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 dele-
gates of the three States declared
in the Convention.
South Carolina. Georgia.
36.46 102.99
34.35 77.12
31.62 42.23
22.62 45.35
3.68‘ 29.15
17.71 35.85
that period could well afford to
surrender it at the stipulated time.
In 1810, the proportion of the‘
1 The point respecting the slave-
trade was insisted upon by the del-
egates of those three States, both as
a matter of State pride and a mat-
ter of practical interest. They re-
garded the increase of their slave
population by new importations as
a thing of peculiarly domestic con-
cern, 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 ex-
ercise. The following table, taken
from the United States vCensus,
shows that in the twenty years
PROGRESS OF THE SLAVE POPULATION FROM 1790 To 1850, snow-
ING THE INoREAsE PER CENT IN EAcH PERIOD OF TEN YEARS.
. North Carolina.
1790 to 1800 32.53
1800 to 1810* 26.65
1810 to 1820 21.43
1820 to 1830 ' 19.79
1830 to 1840-} 0.08
1840 to 1850 17.38
But while the census shows that
the power to admit slaves was ex-
ercised 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
* The constitutional power of Con-
gress to prohibit the importation took
effect and was exercised in 1808.
i The great diminution in the rates
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
of increase during this period is prob-
ably due to the removal of slaves into
Alabama, Arkansas, Louisiana,“*"'and
Texas.
CH. X.] VALUE OF THE COMPROMISE.
Thus was accomplished, so far as depended on the
action of this Convention, that memorable compro-
mise, which gave to the Union its control over the
commercial relations of the States with foreign na-
tions and with each other. An event so fraught
with consequences of the utmost importance cannot
be dismissed without some of the reﬂections appro-
priate to its consideration. ,
Nature had marked America for a great commer-
cial nation. The sweep of the Atlantic coast, from
the Bay of Fundy to the Gulf of Florida, compre-
hending twenty degrees of latitude, broken into ca-
pacious bays and convenient harbors, and receiving
the inward ﬂow of the sea into great navigable rivers
that stretched far into the interior, presented an ac—
cess 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
1810 was 48.4, and in 1850, 58.93;‘ could well sustain a much larger
in Georgia, in 1810 it was 42.4, ratio of the blacks to the whites
and in 1850, 42.44. It is not prob- than that which now' exists, and
able, therefore, that the prosperity which will probably continue to be
of those States has been diminished maintained at about the same point
by the discontinuance of the slave- for a long period of time.
trade; for it is not likely that they
310 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
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 al-
ready largely demanded by the consumption of Eu-
rope. In the North, there were ﬁsheries of singular
importance, capable of furnishing enormous addi-
tions 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 di-
vided into separate governments, the commercial
legislation of the States could produce nothing but
the confusion and uncertainty which retaliation ne-
cessarily 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 produc-
tions. 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 pre-
CH. X.] BENEFITS OF THE CONSTITUTION.
ceding volume, has seen how the people of the United
States, from the earliest stages of the Revolution,
struggled to free themselves from these embarrass-
ments; —how they commenced with a jealous res-
ervation of State authority over all matters of com-
merce and revenue; how they undertook to supply
the necessities of a central government by contribu-
tions 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 tempo-
rary 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 pow-
ers, 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. N 0 one can doubt that the
people of America owe to it both the nature and the
degree of their actual prosperity; --—and as the na-
tional prosperity has given them importance in the
world, it is just and accurate to say, that commerce
312 FORMATION OF .THE coNsTITUTION. [BOOK Iv.
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 soci-
ety. Let the reader consider the interests of com-
merce, 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 cen-
tral 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 harmo-
nious and powerful system, created for the security of
property, and the promotion of the material welfare
and prosperity of individuals, whatever their occupa-
tion, employment, or condition. That such a code of
civil government should have sprung from the ne-
cessities 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 dis-
tinction for the benevolent virtues; if the wealth
that ‘is eagerly sought and rapidly acquiredis freely
used for the relief of human suffering; if learning,
science, and the arts are duly cultivated; if popular
CH. X.] BENEFITS OF THE CONSTITUTION.
education is an object of lavish expenditure; if the
institutions of religion, though depending on a pure-
ly 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 en-
deavor 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 pos-
itive good that has been gained, or the positive loss
that has been suffered.
The prominent facts to be considered in this con-
nection 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 Massa-
chusetts 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.
voL. II. 40
314 FORMATION OF THE CONSTITUTION. [BOOK Iv.
As soon as the point was settled, in the formation of
the’ Constitution of the United States, that the State A
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 inhab-
itants 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 prin-
ciple 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
CH. X.] BENEFITS OF THE CONSTITUTION.
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 set-
tlement that was actually made, one of two conse-
quences 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 hap-
pened, 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 confed-
eracies; there certainly would have been an indeﬁ-
nite 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 estab-
lishment 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 mag-
316 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
nitude 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 re-
ﬁnement they have created, and to the blacks by the
gradual but certain amelioration of their condition.
The social strength and security occasioned by con-
stantly increasing wealth, combined with the ac-
knowledgment 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 prob-
lem, without the interference of those who could
beneﬁt neither race by their intervention. This, in
every rational view of the subject, cannot but be re-
garded as one of the chief blessings conferred by the
Constitution of the United States.
It has made emancipation possible, where other-
wise 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 authori-
ties 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 de-
vout gratitude to the Ruler of the Universe. Great
CH. X.) BENEFITS OF THE CONSTITUTION.
as has been the increase of slaves in the United States
during the last seventy years, there can be ,no ques-
tion 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 pros-
perity has enabled individual enterprise and benevo-
lence 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 com-
plaint, that in a system of representative. govern-
ment, made necessary by controlling circumstances,
the unimportant anomaly should be found, of a rep-
resentation of men Without political rights or social
privileges; or that the question of emancipation,
either for the mass or the individual, should be care-
fully 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.
CHAPTER XI.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED. - THE
REMAINING POWERS OF CoNoBEss.--REsTRAINTs UPON CON-
GRESS 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 be—
came 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,1
with a certain restriction as to the taxation of ex-
ports, 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 rev-
enue power was afIirmed unanimously by the Con-
vention, 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
1 Art. VII. § 1 of the ﬁrst draft of the Constitution. Elliot, V. 373.
on. XL] PURPOSE or THE REVENUE POWER. 319
the common defence and general welfare of the United
States,” added to the clause which empowers Con-
gress 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 Pinck-
ney introduced several topics designed to supply
omissions in their report, which were thereupon re-
ferred 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 credit-
ors should not, during the time of such appropria-
tion, 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 pay-
ment of the public debt, and still another to prevent
a violation of the public faith when once pledged to
any public creditor.1 Immediately after this refer-
ence, Mr. Rutledge moved for what was called a
grand committee,2 to consider the expediency of an
assumption by the United States of the State debts;
and after some discussion of the subject, such a com-
mittee was raised, and Mr. Rutledge’s motion was re-
ferred to them, together with a proposition introduced
by Mr. Mason for restraining grants of perpetual
revenue.3 Thus it appears that the principal subject
1 August 18. Elliot, V. 440. grand committee was afterwards
9 A committee of’ one member referred the subject of the
ﬁ‘om each State. See infra.
‘’ Elliot, V. 441. To the same
320 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
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 per-
petual taxes of any kind. The grand committee re-
ported ﬁrst, presenting the following special provis-
ion: — “ 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 in-
curred by the several States during the late war for
the common defence and general welfare.” 1 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 add-
ed: “for payment of the debts and necessary expenses
‘of the United States; provided that no law for rais-
ing any branch of revenue, except what may be spe-
cially appropriated for the payment of interest on
debts or loans, shall continue in force for more than
years.” 2
Two distinct propositions were thus before the
Convention. One of them contemplated a qualiﬁca-

1 August 21. Elliot, V. 451. 2 August 22. Ibid. 462.
on. xI.] PURPOSE OF THE REVENUE POWER. 321 '
tion of the revenue power, the other did not. One
was to give authority to Congress to pay the revolu-
tionary debt, both of the United States and of the
States, and to fulﬁl all the engagements of the Con-
federation; 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 rev-
enue power, and was thus obviously no qualiﬁcation
of that power.1
But it was thought by Mr. Sherman, that the
clause for laying taxes and duties ought to have con-
nected 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 defrayingithe expenses that shall
‘i be incurred for the common defence and general
welfare.” This was regarded by the Convention as
1 See the proceedings which Elliot, V. 462, 463, 464, 471, 475-
took place, August 22, 24, and 25. 477.
voL. II. 41
322 FORMATION oF THE coNsTITUTIoN. [BOOK Iv.
unnecessary, and was therefore not adopted.1 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 mat-
ters 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 pow-
er to lay and collect taxes, duties, imposts, and ex-
cises, to pay the debts, and provide for the common
defence and general welfare of the United States.”
This amendment was unanimously adopted; 2 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 con-
text 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
1 Elliot, V. 476, 477. Mr. rity of the old debts of the United
Madison says, “This proposition, as States.
being unnecessary, was disagreed 2 Ibid. 506, 507.
to ”; that is, unnecessary as a secu-
on. XL] PREFERENCE OF PoRTs. 323
struggle between the Northern and the Southern
States concerning the limitations of those powers
turned, as we have seen, on certain restrictions de-
sired 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 compro-
mises was to leave the commercial and revenue
powers unlimited, excepting by the saving in re-
lation to the slave-trade; that they left the revenue
power unlimited, excepting by the restriction con-
cerning exports and a capitation tax; and that the
commercial power was. to be exercised, like other
legislative powers, by a majority in Congress. Gen-
eral 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
324 FORMATION OF THE ooNsTITUTIoN. [BOOK Iv.
other ports of entry, or to compel vessels to receive
on board revenue officers before they had reached
their ports of destination, would create opportu-
nities 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.1 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.”2
It was while this subject of the equal operation
of the commercial and revenue powers upon the
different States was under consideration, that the
1- Elliot, V. 478, 479. on the proposition of the Maryland
9 Constitution, Art. I. § 9. See delegates. Elliot, V. 478, 479, 483,
the proceedings which took place ' 502, 545.
Ca. XL] COMMERCE WITH INDIAN TRIBES.
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.1
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 con-
stantly 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 dis-
covery and settlement of the New \Vorld, and prac-
tised 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
1 Elliot, V. 543. Constitution, Art. I. § 8, clause 1.
326 FORMATION OF THE CONSTITUTION. [BOOK IV.
Congress, and by the United States under the Con-
federation. It recognized the Indian tribes as na-
tions, 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 con-
dition 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 condi-
tion of the Indian tribes, that during the whole
of the thirteen years which elapsed from the com-
mencement 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 sub-
ject 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 vio-
lated.” The exception of such Indians as were
members of any State, referred to those broken
on. XL] coMMERcE WITH INDIAN TRIBES. 327
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 thesame time
each State retained to itself the regulation of its
commerce with all other nations. The broad dis-
tinction thus early established, and thus perpetu-
ated in the Confederation, between commerce with
the Indian tribes, and commerce with “ foreign na-
tions,” 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 ex-
pressly 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 con-
dition as tribes. Accordingly, Mr. Madison intro-
duced the separate proposition “ to regulate affairs
with the Indians, as well within as without the
328 FORMATION OF THE CONSTITUTION. [BOOK IV.
limits of the United States ” ; 1 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.” _
The remaining powers of Congress may be con-
sidered in the order in which they were acted upon
by the Convention. The powers to establish a uni-
form 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 una-
nimity, as they had been proposed in the draft
prepared by the committee of detail. The power
to establish post-oﬁices was extended to embrace
post-roads.3
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 con-
templation in the two provisions reported by the
committee, suﬁiciently appears from the debates and
from the history of the times. The object of the
1 Elliot, V. 439. 3 Ibid. 434. Journal, Elliot, 1.
2 Ibid. 506, 507. 245.
on. XL] . POWER TO BORROW MONEY. 329
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 our-
rency, 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 pro-
priety or safety than by a State. One of the prin-
cipal causes which had led to the experiment of
making a national government with power to pre-
vent 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
voL. II. 42
330 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
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 prohi-
bition 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 formi-
dable and probably a fatal opposition. It was
deemed wiser, therefore, even if unforeseen emer-
gencies 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.1L ,
The clauses which authorize Congress to consti-
tute tribunals inferior to the Supreme Court,2 and
to make rules as to captures on land and water?—
the latter comprehending the grant of the entire
prize jurisdiction, —- were assented to without dis-
cussion.4 Then came the consideration of the crim-
inal jurisdiction in admiralty, and that over offences
1 See the debate, and Mr. Mad- 9 Constitution, Art. I. § 8, clause
ison’s explanation of his vote, El- 9.
hot, V. 434, 435, and the note on 3 Ibid., clause 11.
the latter page. 4 Elliot, V. 436.
on. xI.] PowER To DEFINE oEEENcEs. 331
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,”
&0. was changed to the words “ deﬁne and punish,”
for the following reason. Piracy is an offence de-
ﬁnedby 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.1 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 con-
stitute 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 neces-
sary 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 civ-
ilized States. But before Congress could have pow-
er 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
1 That is to say, it is the same that is denominated robbery when
crime, committed on the high seas, committed on the land.
332 FORMATION OF THE ooNsTITUTIoN. [BOOK Iv.
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 of-
fences, which were to be treated as piracies'and fel-
onies committed on the high seas, and as offences
against the law of nations.1
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.2
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.3 The clause which enables Congress to
grant “letters of marque and reprisa ” was added
to the war‘ power, at a subsequent period, on the
recommendation of a committee to whom were re-
1 Madison, Elliot, V. 436, 43 7. revision of the Constitution, coun-
2 In the clause as it passed the terfeiting was placed in a separate
Convention, the offence of counter“ clause, under the term “to provide
ﬁiting was placed with the other for the punishment of,” 8:0. See
crimes which Congress was to “ de- Art. I. § 8, clauses 6, 10.
ﬁne” and “punish”; but, on the 3 Elliot, V. 438, 439.
CH. XL] POWER TO RAISE AND SUPPORT ARMIES.
ferred sundry propositions introduced by Charles
Pinckney, of which this was one.1
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 en-
larged by adding the term to “ support.”2 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 gov-
ernment, 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.3 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.‘ The application
of this principle to the power of raising and support-
ing 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
1 Elliot, V. 440, 510,511. 8 ‘Ibid. 443.
2 Ibid. 442. 4 Ibid. 440.
334 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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.1
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.”"2
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 govern-
ment to the States and the people of the States, but
the question whether and how far the whole effect-
ive force of the nation could be employed for national
purposes and directed to the accomplishment of ob-
jects 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
1 Elliot, V. 510, 511 Constitu- 9 Elliot, V. 443.
tion, Art. I. § 8, clause 12. '
on. x11 PowER ovER THE MILITIA. 335
more conspicuously than the fact, that, while the mi- *
litia of the States were in general neither deﬁcient
in personal courage, nor incapable of being made sol-
diers, 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 pow-
er, 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 uni-
fonn system. A regiment of militia drawn from
New Hampshire was a very different body from one
drawn from New York, or Pennsylvania, or New Jer-
sey, or South Carolina. The consequence was, that
when these different forces were brought to act to-
gether, 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 for-
mation 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
336 FORMATION OF THE CONSTITUTION. [BOOK IV.
of determining how far and for what purposes the
people of the several States should be asked to con-
fer upon the general government this very important
part of their political sovereignty. One thing, how-
ever, 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 repub-
lican ‘ 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 suﬁicient, without the mainte-
nance of some regular troops, the nature of the lib-
erties 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
on. XL] POWER ovER THE MILITIA. ‘ 337
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.” 1 Possibly it might have been
contended, after the Constitution had gone into op-
eration, that the general power to make all laws ne-
cessary and proper for the execution of the powers
specially enumerated, would enable Congress to pre-
scribe regulations Of the force which they were au-
thorized 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 hazard-
ous to be trusted; and it at once occurred to one of
the wisest and most sagacious of the statesmen com-
posing the Convention, who, though he never signed
the Constitution, exercised a great and salutary inﬂu-
ence in its preparation, -— Mr. Mason of Virginia, —-
that an express and unequivocal power of regulating
the militia must be conferred. He stated the obvi-
ous 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 diffi-
cult 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.2 But he,
as well as others, became satisﬁed that this plan would
not produce a uniformity of discipline throughout
1 Art. VII. § 1 of the ﬁrst draft. 2 Ibid. 440.
Elliot, V. 379.
voL. II. 43
338 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the entire mass of the militia. The question, there-
fore, 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 committeeof the States.1 It was by them that
the plan was digested and arranged by which Con-
gress now has the power to provide for organizing,
arming, and disciplining the militia, and for govern-
ing 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 pre-
scribed by Congress; 2— a provision that was adopted
by a large majority of the States. The clause re-
‘ported 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.3
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 depart-
1 August 18. Elliot, V. 445. 3 Art. I. § 8, cl. 15.
2 Constitution, Art. I. § 8, cl. 16. Ibid. p. 467.
CH. PATENTS AND COPYRIGHTS.
ment or officer thereof.” 1 Nothing occurred in the
proceedings on this provision which throws any par~
ticular light upon its meaning, excepting a proposi-
tion to include in it, expressly, the power to “ estab-
lish 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.2 I
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 consid-
ered 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 ex-
ercised 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 ;3 but patents
for useful inventions were granted by special acts of
legislation in each case. When the power to legis-
late 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
1 Constitution, Art. I.§ 8, cl. 18. setts and Connecticut, &c. cited
9 Elliot, V. 447. in Curtis on Copyright, pp. 77, 78,
3 See the statutes of Massachu- 79.
340 FORMATION OF THE CONSTITUTION. [BOOK Iv.
of the States, by which the power conferred upon
Congress must of course, to a large extent, be con-
strued. I
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 gov-
ernment 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.1 In the same clause, the
like authority was given over‘ all places that might
be purchased, with the consent of any State legisla-
ture, for the erection of forts, magazines, arsenals,
dock-yards, and other needful buildings.2 All the
other places to which the authority of the United
States can extend are includedunder the term “ ter-
ritories,” which are out of the limits and jurisdic-
tion 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 Con-
gress for that purpose. I
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;
1 Ante, Chap. IX. 2 Elliot, V. 510, 511, 512.
OH. x1] POWER ovER TERRITORIES. 341
and while he will ﬁnd there the full legislative au-
thority to govern the District of Columbia and certain
other places ceded to the United States for particu-
lar 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 Con-
federation. If this power of legislation exists as to
the territories, it is to be looked for in another con-
nection; 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 as-
sembled.l 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 Confed-
eration. .
It appears that during the preparation of the
Articles of Confederation an effort was made to in-
clude 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
1 Ante, Vol. I. Book III. ch. 5, p. 291 et seq.
342 FORMATION OF THE CONSTITUTION. [BOOK Iv.
territory beyond the boundaries that were to be
thus ascertained into new States. This effort to-
tally 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 vUnion. But the States,
which then claimed an uncertain extension west-
ward from their actual settlements, were not pre-
pared for such an admission, or such a grant; and
accordingly the Articles of Confederation, which
were issued in 1777 and took effect in 1781, con-
tained no express power to deal with landed prop-
erty 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 any-
where 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.1 The great ces-
sion by Virginia, made in 1784, was immediately
1 Resolve of October 10, 1780. Journals, VI. 325.
CH. XL] POWER OVER TERRITORIES.
followed by another resolve, for the regulation of the
territory thus acquired.1 .
This resolve, as originally reported by Mr. Jeffer-
son, embraced a plan for the organization of tempo-
rary governments in certain States which it under-
took 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 be-
fore the resolve was passed,‘ and its removal left the _
measure a mere provision for the political organiza-
tion 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
1 Resolve of April 23, 1784. Journals, IX. 153.
344 FORMATION OF THE CONSTITUTION. [BOOK Iv.
perpetual exclusion of slavery from the States de-
scribed in Mr. Jefferson’s resolve. King’s prop-
osition was referred to a committee, but it does not
appear that it was ever acted uponfl 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
l3, 17 87. 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 ex-
clusion of slavery from the territory is well known
as one of its fundamental articles, not subject to al-
teration by the people of the territory, or their legis-
lature.2
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 prin-
cipal reasons which were said to require a revision of
the federal system. It does not appear that the sub-
ject of legislation on the rights or condition of per-
sons 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. Jef-
1 March 16,1785. JOIKKKR, x. 0f the Ordinance of 1787, in the
79. See dnte, Vol. I. p. 299. Appendix to this volume.
2 See the note on the authorship
CH. xI.] POWER OVER TERRITORIES. 345
ferson’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 ap-
ply for admission.1 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 Con-‘
federation never acted upon the power so far as to
admit a State.2 Finally, we are told by Mr. Madi-
son, 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 gov-
ernments, and the prescribing of conditions of admis-
sion into ‘the Union, had been done “without the
least color of constitutional authority”;3 —— an asser-
tion which, whether justiﬁable or not, shows that
the power of legislation was by some persons stren-
uously denied.4
1 Ante, Chap. IV. p. 77, note. Jefferson, ante, p. 7 7, also shows
2 See the proceedings concern- that strong doubts were felt in Con-
ing Kentucky, in 1 788. Journals, gress, in 1784, respecting their pow-
XIII. 16, 32, 51, 52, 55. er to admit new States formed out
3 The Federalist, No. 38. of unoccupied territory. Indeed,
4 The passage quoted ﬁ'om Mr. the whole of the proceedings upon
VOL. II. 44
346 FORMATION OF THE CONSTITUTION. [BOOK Iv.
With regard to the powers of Congress, under the
Confederation, to erect new States in the N orthwest-
ern Territory, and to admit them into the Union, the
truth seems to be this. There is no part of the Ar-
ticles 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 pro-
prietor 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 al-
low 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
gates. See Journals, IX. 138-
156. The State of South Caro-
Mr. J eff‘erson’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 dele-
lina voted against the resolve on
its ﬁnal passage, and after it had
been modiﬁed to meet some of the
objections raised.
on. XL] PowER ovER TERRITORIES. 347
made, they did so upon the most solemn assertion
that they expected and conﬁded in a future relin-
quishment of their claims by the other States. Those
just expectations were fulﬁlled. By the acts of ces-
sion, and by the proceedings of Congress which in-
vited them, the United States not only became the
proprietors of a great public domain, but they re-
ceived 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 Con-
gress to provide for the formation of the States con-
templated, and for their admission into the Union.
Strictly speaking, however, there was no such au-
thority. It was to be gathered, if at all, from public
348 FORMATION OF THE CONsTITUTION. [BOOK Iv.
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 govern-
ment, as to make it eminently necessary to have it
expressly stated and conferred in the instrument un-
der which all the other functions of the government
were to be exercised.1
. 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 instru-
1 I think we are to understand
Mr. Madison’s assertion in the Fed—
eralist, - that what had been done
by Congress in relation to the North—
western Territory was without con-
stitutional authority, — to mean,
that it had been done without the
authority of any proper constitu-
tional provision. Mr. Madison
himself, being a member of Con-
gress in 1783, voted for the accep-
tance of a report, by the adoption
of which Congress settled the con-
ditions 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 terri-
tory should be held and disposed
of for the common beneﬁt of the
United States, that it should be di-
vided 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 Septem-
ber 13, 1783, VIII. 355-359.)
But he was not a member of Con-
gress in 1 784, when Mr. Jefferson’s
measure was adopted; and although
he was a member in 1 787, when the
Ordinance was adopted, he was at
that time in attendance upon the
national Convention, and conse-
quently never voted upon the Ordi-
nance. His participation in the
proceedings of the Convention, by
which the necessary power was
created, shows his sense of its ne-
cessity. ' ‘I
CH. x1.) POWER OVER TERRITORIES. 349
ity over these subjects.
ment 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 author-
In doing so, we are to re-
member that the United States had accepted cessions
of the Northwestern Territory, impressed with two
distinct trusts: ﬁrst, that the country should be set-
tled and formed into distinct republican States, which
should be admitted into the Union; secondly, that
the lands should be disposed of for the common ben-
eﬁt of all the States.‘ '
Accordingly, we ‘ﬁnd in the plan of government
presented by Governor Randolph at the opening of
the Convention, a resolution declaring “ that provis-
ion 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.”2 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
1 See especially the cession by
Virginia, of March 1, 1784. Jour-
nals of Congress, IX. 67. Cession
by Massachusetts, April 19, 1785.
Journals, X. 128. Cession by
Connecticut, September 13, 1786.
Journals, XI. 221. Also the re-
solve of Congress passed, in antici-
pation of these ' cessions, October
10, 1780. Journals, VI. 325.
2 Resolution 10. Madison, El-
liot, V. 128.
350 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 legis-
lation of the Ordinance of 1787 concerning the ad-
mission of States that were to be formed in the terri-
tory 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 be-
come the exclusive property of the United States.
The resolution contained, however, no positive re-
striction, which would require the assent of any ex-
isting 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 dis-
membered ‘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 resolu-
tion, gave effect to its provisions in these words: --
“ New States lawfully constituted or established with-
in the limits of the United States may be admitted,
by vthe 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 pres-
ent States, the consent of the legislatures of such
ce. XL] PowER ovER TERRIToRIEs. 351
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.” 1
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 as-
certained how a State was “lawfully to arise” in the
territory of the United States. Nor was there, at
present, any provision ‘introduced into the Constitu-
tion by which Congress could dispose of the soil of
the national domain. These as well as other omis-
sions at once attracted the attention. of Mr. Madison,
who, as we have seen, held the opinion that the en-
tire legislation of the old Congress in reference to
the Northwestern Territory was without constitution-
al authority. Before the article which embraced the
admission of new States was reached, he moved the
following among other powers:2 “‘ to dispose of the
unappropriated lands of the United States”; and “ to
institute temporary governments for new-States aris-
i Art. XVII. of the draft pre- 2 August 18. Elliot, Vol. v. p.
pared by the committee of detail. 439.
Elliot, V. 381.
352 FORMATION OF THE CoNsTITUTIoN. [BOOK'Iv.
ing therein.” These propositions were referred to
the committee of detail, but before any action upon
them, the article previously reported by that com-
mittee was reached and taken up, and there ensued
upon it a course of proceeding which resulted in the
provisions that now stand in thethird section of the
fourth article of the Constitution.1
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 as-
signed 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.2
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.3 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 con-
sent 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
1 August 29. Elliot, V. 492 - 2 Ibid. 492, 493.
497. 3 Ibid. 493.
CH. XL] ADMISSION OF NEW STATES. 35?,
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 re-
fused to concede a power to dismember a State, with-
out 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 with-
in 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 ces-
sion of the State claim to the Union.1
The next step taken in the settlement of this sub-
ject was‘ to provide for the case of Vermont, which
was then in the exercise of an independent sovereign-
ty, 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
1 See the vote on a proposition by Great Britain in the treaty of
moved by Mr. Carroll for a recom- peace. New Jersey, Delaware, and
mitment for the purpose of assert- Maryland alone voted for the re-
ing in the Constitution the right of commitment. Elliot, V. 493, 494.
the United States to the lands ceded
VOL. II. 45
354 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 ar-
ticle under consideration, and the word “ jurisdic-
tion” was substituted for “limits.” 1 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 legis-
lature of such State, as well as of the general legis-
lature.” '
This provision was quite unsatisfactory to the mi-
nority. 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.2 A clause
was then added to , the article pending, which de-
clared that no State should be formed by the junc-
tion of two or more States, or parts of States, with-
out the consent of the States concerned, as well as
the consent of Congress. This completed the sub-
stance of what is now the ﬁrst clause of the third
Section of the fourth article of the Constitution.3
1 Elliot, V. 495. 3 When the Constitution was
2 Ibid. 496. New Jersey, Dela- ﬁnally revised, the word “hereaf-
ware, and Maryland, ay. ter” was left out of the ﬁrst clause
CH. xr] POWER ovER TERRITORIES. 355
Mr. Carroll thereupon renewed the effort to intro-
duce 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, Gou-
verneur 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 arti-
cle fourth, which he presented as follows: “ The legis-
lature 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 pro-
vision was adopted, without any other dissenting vote
than that of the State‘ of Maryland.1
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 pro-
ceedings with respect to it, and from the surround-
ing facts, which exhibit what was then, and what
of the third section of article fourth, within the “jurisdiction,” although
apparently because the phraseology it was within the asserted limits, of
of the clause was sutﬁcient, without the State of New York.
it, to save the case of Vermont, 1 Elliot, V. 496, 49 7.
which was regarded as not being
356 FORMATION OF THE CONSTITUTION. [BOOK Iv.
was afterwards likely to become, the situation of the
United States in reference to the acquisition of terri-
tory 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 Conven-
tion. The ﬁrst‘ consisted of the Northwestern Terri-
torry, 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 ad-
versely 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.1 These cessions, as it then appeared,
1 The cession by South Carolina
of all its “ right, title, interest, ju-
risdiction, and claim” to the “ ter-
ritory or tract of country” lying,
within certain northern and south-
ern limits, between the western
boundary of that State and the
river Mississippi, was in fact made
and accepted in Congress, August
9 - 10, 1 78 7, twenty days before the
territorial clause was ﬁnally settled
in the Convention, which took place
August 30. (Journals of the Old
Congress, XII. 12'9 - 139. Madi-
son, Elliot, V. 494 -497 On the
20th of October of the same year,
the Congress passed a resolution
urging the States of North Carolina
CH. XL] POWER OVER TERRITORIES.
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 up-
on the treaty of peace with England; and the. polit-
ical 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 ref-
erence to the Northwestern Territory, the soil and
jurisdiction of which was already completely vested
in the United States, it was necessary that the Con-
stitution should confer upon Congress power to ex-
ercise 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
and Georgia to cede their Western cession of North Carolina was made
claims. This request was not com- February 25, 17 90; that of Geor-
plied with until after the Constitu- gia, April 24, 1802.
tion had gone into operation. The
358 FORMATION OF THE CONSTITUTION. [BOOK Iv.
power to admit new States into the Union vwithout
requiring the assent of any other State, when Such
new States were not formed within the actual juris-
diction of any other State. T hirdly, 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 Caro-
lina, 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 re-
spective States as they then stood, if the cessions an-
ticipated should not be made. None of these cases,
however, were speciﬁcally mentioned in the Consti-
tution, 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.1
1 It is not my purpose to enter fessionally to maintain that thev ter-
into the argument on this question. ritorial clause is applicable to all ter-
1 have recently had occasion pro— ritorial cessions made to the United
cs. XL] RESTRAINTS UPON CONGRESS. 359
There now remain tobe 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 ap-
plicable 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 limita-
tions 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.” 1 The
common law of England, which recognizes the right
to the writ of habeas corpus for the purpose of delivs
States, whether by States of the that I entertain this opinion. But
Union or by foreign States, and that
it clothes the government with a full
legislative power over such territo-
ries and their inhabitants, which is
subject only to the particular restric-
tions enumerated in the Constitu-
tion, or provided for in the cessions.’
Perhaps it is needless for me to add
it is rejected by others, and, in the
present state of judicial interpre-
tation of this part of the Consti-
tution, by the supreme tribunal, it
is not easy to determine what will
ﬁnally become the settled construc-
tion.
1 Constitution, Art. I. § 9, cl. 2.
360 FORMATION OF THE CONSTITUTION. [BOOK IV.
cry 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 sus-
pended 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.1L .
The prohibition upon Congress to pass bills of at-
tainder, or ea: post facto laws, came into the Consti-
tution 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 legis-
lation 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
postfacto laws,” there was some difference of opinion,
in consequence probably of different views of the ex-
tent of the term. In the common law, this expres-
sion 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,
1 See Elliot, V. 484. The three States were North Carolina, South
Carolina, and Georgia. >
on. XL] Ex POST PAOTO LAWS. 361
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 “ ea: postfacto laws” was taken in its
widest sense, embracing all laws retrospective in their
operation. It was objected, therefore, that the pro-
hibition was unnecessary, since, upon the ﬁrst prin-
ciples 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}l
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 operat-
ing 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 postfacto laws” was thus conﬁned
to laws creating and punishing criminal offences after
1 Elliot, V. 462, 463.
VOL. II. 46
362 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the acts had been committed? What is now the set-
tled construction of this term, therefore, is in accord-
ance 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, oflice, or title, of any kind
Whatever, from any king, prince, or foreign state.2
In addition to the special powers conferred by the
Constitution upon‘ the national government, it has
imposed certainrestraints 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 gov-
ernments to that of the Union, by the application of
certain maxims or rules of public policy. These re-
straints may now be brieﬂy examined, with reference
to this classiﬁcation.
1 Elliot, V. 488. 2 Ibid. 467. Constitution, Art. I. § 9, cl. 8.
on. XL] RESTRAINTS UPON THE STATES. 363
The idea of imposing special restrictions upon the
power of the separate States was not expressly em-
braced 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 with-
drawing 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 them-
selves the ‘principle of their supremacy as matters
of fundamental law, and to enable the national ju-
diciary 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 do-
ing of what was otherwise prohibited. In the ﬁrst
draught of the Constitution, the committee of de-
tail 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, alli-'
' ances, and confederations, and the granting of titles
of nobility. All the other restraints on the States
were to be operative or inoperative, according to
364 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the pleasure of Congress.1 Among these were in-
cluded bills of credit; laws making other things
than s'pecie a tender in payment of debts; the lay-
ing of imposts or duties on imports; the keeping of
troops or ships of war in time of peace; the enter-
- ing 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 im-
pairing the obligation of contracts, was not pro-
hibited at all.
But when these various subjects came to be re-
garded more closely, it was perceived that the list
of absolute prohibitions must be considerably en-
larged. 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 legis-
latures to Congress, if Congress should be author-
ized 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 ab-
solutely the issuing of bills of credit.2 To ‘the same
1 Articles XII., XIII. of the ﬁrst 2 Elliot, V. 484, 485.
draft, Elliot, V. 381.
CH. XL] OBLIGATION OF CONTRACTS.
'
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.1
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.2 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 ex-
1 Elliot, V. 484, 485.
9 The Ordinance, which was
passed July 13, was published at
length in “ The Pennsylvania Her-
ald,” a newspaper printed at Phila-
delphia, on the 25th of July (1 787).
Mr. King’s motion was made Au-
gust 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 inter-
fore in private contracts.” Elliot,
V. 485.
366 FORMATION OF, THE CONSTITUTION. [BOOK Iv.
pediency, and indeed of clear necessity. In the
Ordinance, Congress had provided a system of fun-
damental law, intended to be of perpetual obliga-
tion, 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 sovereign-
ty according to the requirements of a preconceived
policy, enabled the framers of the Ordinance to,in-
troduce 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 exist-
ence 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,
CR. XL]
OBLIGATION OF CONTRACTS. 367
in any manner whatever interfere with or affect pri-
vate contracts or engagements previously made.1
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 ex-
isting 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 Con-
vention, the restriction was made to embrace all
retrospective laws bearing upon contracts, which
were supposed to be included in the term “ ea: post
facto laws.” It being ascertained, however, that the
latter phrase would not, in its usual acceptation, ex-
tend 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 legisla-
ture, it was said, ever did or can altogether avoid
someretrospective 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 pass-
ing any “law impairing the obligation of contracts ”;
— a provision that has been found amply suﬁicient,
and attended with the most salutary consequences,
under the interpretation that has been given to it?
1 See the clause of the Ordi-
nance, cited ante, V 01. I. p. 452,
note 2.
2 Elliot, V. 485, 488, 545,
546.
368 FORMATION OF THE CoNsTITUTION. [BOOK Iv.
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 de-
on. XL] STATE IMPOSTS. 369
prived 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 gen-
eral commercial regulations. To prevent these vari-
ous mischiefs, the Convention adopted three distinct
safeguards. They provided, ﬁrst, by an exception,
that the States might, without the consent of Con-
gress, lay such duties and imposts as “ may be abso-
lutely 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 con-
sent 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 con-
trol of Congress.1L 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 in-
spection 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 con-
trol of Congress. Any tendency to lay duties or
imposts for purposes of revenue or protection, is
checked by the requirement that the net produce
1 Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.
vor.. 11. 47
370 FORMATION OF THE CONSTITUTION. [BOOK IV.
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 fur-
ther provided that no State, without the consent of
Congress, shall lay any duty of tonnage. An excep-
tion, proposed by some of the Maryland and Virginia
members, with a view to the situation of the Chesa-
peake 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 reg-
ulation of commerce was already agreed to be vested
in the general government, the States wererestrained
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, indivisi-
ble, and ought to be wholly under one authority.
The exception was accordingly rejected?
1 By 'a vote of six States against four. Elliot, V. 548.
CH. xI] VARIOUS RESTRAINTS. 371
The same restriction, with the like qualiﬁcation
of the consent of Congress, was applied to the keep-
ing of troops or ships of war in time of peace, enter-
ing into agreements or compacts with another State
or a foreign power, or engaging in war, unless actu-
ally invaded or in such imminent danger as will not
admit of delay.1
1 Elliot, V. 548.
CHAPTER XII.
REPORT OF THE COMMITTEE OF DETAIL, CoNTINUEu-SUPREM-
ACY OF THE NATIONAL GOVERNMENT.—-DEFINITION AND PUN-
IsHMENT 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, ex-
ecutive, 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 sup-
port the Articles of Union; — and that the question
of their adoption should be submitted to assemblies
of representatives to be expressly chosen by the peo-
ple of each State under the recommendation of its
legislature.1
In order to give effect to these precise and strin-
gent directions, the committee of detail introduced
into their draft of a‘ constitution a preamble; two
1 These were the 1st, 7th, 20th, and 21st of the resolutions. Ante,
p. 190 et seq., note.
on. XIL] PREAMBLE. 373
articles asserting and providing for the supremacy of
the national government; a provision for the oath of
oflicers; 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 Hamp-
shire, Massachusetts, &c., who were said “ to ordain,
declare, and establish this Constitution for the gov-
ernment 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 in-
strument was sent toanother committee, whose duty
it was to revise its style and arrangement, this phra-
seology 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.1 The language
thus employed in the preamble has ustly been con-
sidered 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 resolu-
1 “ We, the people of the United the general welfare, and secure the
States, in order to form a more blessings of liberty to ourselves and
perfect union, establish justice, in— our posterity, do ordain and estab-
sure domestic tranquillity, provide lish this Constitution for the United
for the common defence, promote States of America.”
374 FORMATION OF THE CONSTITUTION. [BOOK Iv.
tions on the same subject which had passed the Con-
vention. 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?
It is a remarkable circumstance, that this provis-
ion was originally proposed by a very earnest advo-
cate 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 em-
braced in the Virginia plan, and which was to be
exercised through a negative by the national legisla-
ture upon all laws of the States contravening in
their opinion the Articles of Union, or the treaties
subsisting under the authority of the Union.2 The
purpose of the substitute was to change a legisla-
tive into a judicial power, by transferring from the
national legislature to the udiciary 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 extend-
ing 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
1 The Constitution, Art. VI. 2 July 17. Elliot, V. 322.
(See Appendix.)
CH. XIL] RATIFICATION. 375
enforced by the oath or affirmation to support the
Constitution of the United States; 1 and, as we shall
see hereafter, lest this security should fail, the final
determination of questions of this kind was drawn
to the national udiciary, even when they might have
originated in a State tribunal.2
Closely connected in purpose with these careful
- provisions was the mode in which the Constitution
was to be ratiﬁed. The committtee of detail had
made this the subject of certain articles in the Con-
stitution itself.3 But the committee of revision after-
wards 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 arti-
cle which determined the number of States whose
adoption should be sufficient for establishing it."1
These resolutions pursued substantially the mode
previously agreed upon, of a transmission of the in-
strument 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 as-
sembly so adopting it. The purpose of this form of
proceeding, so far as it was connected with the pri-
mary authority by which the Constitution was to be
enacted, has been already explained.5
1 The Constitution. Art. VI. 4 The Constitution, Art. VII.
2 Ibid. Art. III. § 2. 5 Ante, p. 177, et seq. The
3 Articles XXL, XXII, XXIII. resolutions may be found in Elliot,
of their draft. Elliot, V. 381. V. 541 (Sept. 13). But the pro-
376 FORMATION OF THE CONsTITUTION. [BOOK Iv.
What then were the meaning and scope of that
supremacy which the framers of the Constitution de-
signed to give to the acts of the government which.
they constructed’! .
In seeking an answer to this question, it is neces-
sary to recur, as we have constantly been obliged to
do, to the nature of the government which the Con-
stitution was made to supersede.
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 ener-
gies for the common defence and the promotion of
the general welfare. But this combined will of dis-
tinct 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 suﬁiciently 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 en-
tirely upon the separate pleasure of each State
whether it should be executed. If the State govern-
In that system, the *
ceedings 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 Conven-
tion 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 Con-
gress for September 28, 17 87, Vol.
XII. pp. 149 — 165.
CH. XIL] SUPREMACY. 377
ments 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 Con-
gress could not legislate to control individuals, and
because there was no department clothed with author-
ity 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 gov-
ernment, its authority over its own citizens and with-
in its own territory must, from the nature of politi-
cal sovereignty, be supreme. There were, therefore,
to be two supreme powers in the same country, op-
erating upon the same individuals, and both pos-
sessed 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 oper-
ate upon the same objects. But there is nothing in
the nature of political sovereignty to prevent its pow-
ers from being distributed among different agents for
different purposes. This is constantly seen under
the same government, when its legislative, executive,
and udicial powers are exercised through different
voL. II. 48
378 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 su-
preme 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? 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 author-
ity 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
1 See a speech made by Hamilton in the ‘Convention of New York.
Works, 11. 462.
CH. XIL] SUPREMACY. 379
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 opera-
tion of the rule was carefully limited to those occa-
sions.
The highly complex character of a system in which
the duties and rights of the citizen are thus governed
bydistinct sovereignties, would seem to render the
administration of the central power — surrounded
as it is by jealous and vigilant local governments ——
an exceedingly difiicult and delicate task. Its situ-
ation is without an exact parallel in any other coun-
try in the world. But it possesses the means which‘
no government of a purely federal character has ever
enj oyed, 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 determi-
nations on the same‘ question as the. number of the
States. At the same time, this very diversity of in-
terpretation would have deprived the general govern-
ment of all power to enforce, or even to have, an in-
terpretation of its own. Such a confused and chaotic
condition had marked the entire history of the Con-
380 FORMATION OF THE CONSTITUTION. [BOOK Iv.
i
federation. It was terminated with the existence of
that political system, by the establishment of the rule
which provides for the supremacy of the Constitu-
_tion of the United States, and by making one ﬁnal
arbiter of all questions arising under it.
By means of this skilful arrangement, a govern-
ment, 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 constitu-
tional questions that may from time to time pre-
vail ; nor by the means, aside from the Constitution,
that may sometimes have been thought of for coun-
teracting its declared interpretation; but by the prac-
tical 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 de-
partment 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 under-
stood, that there is no alternative to take the place
of a ready submission to the national will, as ex-
pressed 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 sover-
eign power by which the rights and duties of its
CH. x11] SUPREMAOY. 381
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 rela-
tions of its inhabitants that are committed to the
national legislature. The framers of r the Constitu-
tion resorted to an enactment of that instrument
by the people of the United States, and employed
language which speaks in their name, for the ex-
press 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 gov-
ernment 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 who
should not be defeated by the will of a part, was the
purpose of the supremacy assigned to the Constitu-
tion 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 eﬂiciency, 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


382 FORMATION OF THE CONSTITUTION. [BOOK Iv.
of distinct States are conﬁded to the care of a cen-
tral authority; while, for the purpose of securing
the uniform operation of certain principles of justice
and equality throughout the land, particular re-
straints 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 com-
munities, 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, en-
tertained serious doubts whether the country em-
braced by the thirteen original States would not
, e too large for the successful operation of a repub-
lican government, having even so few objects com-
mitted 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
cH. xII] GROWTH OF THE UNION. 383
foundation of the American Union. Let a number
of communities be united under a system which em-
braces 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 th
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 he-
reditary customs, and by the accidental relations of
different races, may in such a state of things be
governed by legislation capable of exact adaptatiori
to the facts with which it has to deal. In this way,
separate States under the republican form may be;
multiplied indeﬁnitely.
N ow 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 con-
trol 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 ex- A
erted. This supremacy secures the republican form
of government, the same general principles and
maxims of justice, and the same limitations between


384 FORMATION OF THE CONSTITUTION. [BOOK W.
State and national authority, throughout all the par-
ticular communities; while, at the same time, it reg-
ulates by the same system of legislation, applied
throughout the whole, the rights and duties of in-
dividuals that are committed to the national author-
ity. It was for the want of this supremacy and of
the means of enforcing it, that the Confederation,
“i nd 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 gov-
ernment 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
ﬁlpremacy 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 as-
certain what should constitute treason against the
United States. They resorted to the great English
statute of the, 25th Edward 111.; and from it they
selected two of the offences there deﬁned as trea-
son, 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
OH. xII.] _ TREASON. 385
realm, and the adhering to the king’s enemies in his
realm, giving them aid and comfort in the realm, or
elsewhere.1 The levying of war against the govern-
ment, and the adhering to the public enemy, giving
him aid and comfort, were crimes to which the gov-
ernment of the United States would be as ' likely to
be exposed as any other sovereignty; and these of-
fences would tend directly to subvert the government
itself. But to compass the death of the chief magis-
trate, to counterfeit the great seal or the coin, or to
kill a judge when in the exercise of his office, how-
ever 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 Unit-‘-
ed States shall consist only in levying war against
the United States, or any of them; and in adher-
ing to the enemies of the United States, or any of
them.”2 I
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 embarrass-
ment; for, however true it might be, in some cases,
that an attack on the sovereignty of a State might
1 4 Blackstone’s Com., Book IV. 2 Art. VI. § '2 of the ﬁrst draft of
ch. 6. the Constitution. Elliot, V. 379.
voL. II. 49
386 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 govern-
ment 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 pun-
ishment under both jurisdictions.l In order, there-
fore, 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 “ ad-
hering ” to the public enemy.2 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 ad-
hering to their enemies by the giving of aid and
comfort.3
With respect to the nature of the evidence of this
1 Elliot, V. 450. comfort,” and not as if they were
9 The effect of these words is as two separate offences.
if the statute read “ adhering to 3 See the debate, Elliot, V. 447 ~
‘the enemy by giving him aid and .451.
on. XIL] TREASON. 387
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 punish-
ment of treason was not prescribed by the Constitu-
tion, but was left to be declared by the Congress;
with the limitation, however, that no- attainder of
treason should work corruption of blood, or for-
feiture, except during the life of the person at-
tainted.1
1 Ibid. Art. III. § 3 of the Constitution.
CHAPTER XIII.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.—— ELECTION
AND POWERS OF THE PRESIDENT.
1N describing the manner in which the Constitu-
tion 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 mak-
ing the incumbent ineligible a second time, — a di-
rect election by the people was negatived ‘by a large
majority. This mode of election, as a means of re-
moving the appointment from the legislature, would
have been successful, but it was inadmissible on oth-
er accounts. In the ﬁrst place, it would have given
to the government a character of complete consoli-
dation, so far as the executive department was con-
cerned, 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 de-
partment, but the slaveholding States would have
had a relative weight in the election only in the pro-
portion of their free inhabitants. On the other hand,
to provide that the executive should be appointed by
CH. XIIL] ‘ ' ELECTION OF PRESIDENT. 389
electors, to be chosen by the people of the States, in-
volved the necessity of prescribing some rule of suf-
frage for the people of all the States, or of adopting
the existing rules of the States themselves. Proba-
bly 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 re-
jecting a direct election of the President by the peo-
ple.1 There remained the alternatives of an election
by one or both of the houses of Congress, or by elec-
tors appointed by the States in a certain ratio, or by
electors appointed by Congress. The diﬁiculty of
selecting from ‘these various modes led the Conven-
tion to adhere to an election by the two houses; and
when the disadvantages of this plan, already de-
scribed, had developed the necessity for some other
mode of appointment, the relations between the Sen-
ate 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 di-
rect, 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 advan-
tages 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 elec-
tion by their legislatures, as they might prefer; and
1 August 24. Elliot, V. 472, 473.
390 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 plu-
rality of the electoral votes were to determine the ap-
pointment. 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 elect-
ing 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 ma-
jority, 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 im-
mediately to choose one of them, by ballot, as the
President; if no person should have such a majority,
thenv the Senate were to choose the President by bal-
lot from the ﬁve highest on the list of candidates re-
turned 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
on. x111] ELECTION OF PRESIDENT. 391
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-Pres-
ident.
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 con-
centrated to effect a choice, from want of the requi-
site 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 be-
gan 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 ex-
pectation 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.1 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
1 The Constitution was published delphia- paper suggested, or, as we
in the Pennsylvania Journal, Sept. should now say, “nominated” Gen-
1 9th. On the 2 7th, another Phila- eral Washington for the Presidency.
392 FORMATION OF THE CONsTITUTION. [BOOK Iv.
such a; way asto admit of a re-election of the incum-
bent. 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 ineli-
gible 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 major-
ity or not, appoint the President. As the grand com-
mittee had proposed to reduce the term of office from
seven to four years, and to strike out the clause mak-
ing the incumbent ineligible, -— a change which met
the approbation of a large majority of the States, -— w
it became still more necessary to prevent any resort
to the Senate for a secondary election. But an ap-
pointment by less than a majority of the electoral
votes presented, on the other hand, the serious objec-
tion that the President might owe his appointment
to a minority of the States. T o preserve, as far as
possible, a federal character for the government, in
some of its departments, was justly regarded as a
point ofigreat importance. I One branch of the legis-
lature 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 Presi-
dent 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, '
CH. XIIL] ELECTION OF PRESIDENT. 393
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 individ-
ual, when so elected, theoretically the choice of a ma-
jority 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, -—after-
wards, in the year 1804, changed to a more direct
method,.—-by which the electors were required to re-
turn their votes for two persons, without designat-
ing 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 in-
creased the chances of a failure to choose the Presi-
dent by the electoral votes. It is not easy to under-
stand 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 remov-
ing the ultimate election from the Senate, but of pro-
viding some mode of conducting that election by
which an appointment by a minority of the States
would be prevented, when a majority of the electo-
ral votes had not united upon any one individual, or
had united upon two. -
VOL. II. 50
394 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 in-
habiting 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 Repre-
sentatives was proposed, the method of voting by
States was adopted, with only a single dissent?
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 benecessary to
a choice, followed naturally as the proper safeguards
against corruption, and were adopted unanimously.
1 Delaware. Elliot, V. 519.
Cu. x111.) ELECTION OF VICE-PRESIDENT. 395
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 sug-
gested only when the mode of organizing the exec-
utive, and of providing for some of the separate
functions of the Senate, came to be closely consid-
ered 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 he
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 ﬁnd-
ing a number of public functionaries who can be
placed in; a certain order of succession, without
creating mere heirs to the succession, for that pur-
pose alone. III hereditary governments, the mem-
bers 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
396 FORMATION OF THE CONSTITUTION. [BOOK Iv.
that positionalone. 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 Sen-
ate 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 com-
mittee, and was adopted with general consent. It
contemplated, also, that the Vice-President, as Presi-
dent 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.
CH. XIIL] SUCCESSION TO THE PRESIDENCY. 397
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 va-
cancy 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 Con-
stitution does not contain any provision or direc-
tion, for ascertaining the case of an inability to dis-
charge 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 pro-
vision 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 inca-
pacity, 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
398 FORMATION OF THE CONSTITUTION. [BOOK 1v.
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 diﬂiculty 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 per-
sonal ambition, from putting the state in jeopardy.1
With us, should such a calamity ever happen, there
must be a similar effort to meet it as nearly as pos-
sible 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 oﬂicer should act as President, in case of
the removal, death, resignation, or inability of both
the President and the Vice-President, until the dis-
. ability should be removed, or a new President should
be elected.
The mode of choosing the electors was, as we have
1 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 cer-
tainly 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 pro-
cess for determining the capacity
of ‘every person to discharge pri-
vate duties or to exercise private
rights. In the case of the Presi-
dent of the United States, there is
no mode provided by the Consti-
tution 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 giv-
en, with safety and propriety.
on. xIIL] OPENING OF VOTES. 399 '
seen, left to the legislatures of the States. Uni-
formity, in this respect, was not essential to the
success of this plan for the appointment of the ex-
ecutive, 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 un-
der the direction of Congress, with the single restric-
tion, 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 inde-
pendent body of persons, appointed for the sole
function of choosing the President and Vice-Presi-
dent, 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.1
The electors were required to meet in their re-
spective States, and to vote by ballot for two per-
sons, one of whom at least should not be an inhab-
itant 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
1 This clause was inserted, by of Mr. King and Mr. Gerry, Sep-
unanimous consent, on the motion tember 6. Elliot, V. 515.
400 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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. Experi-
ence has required some changes to be made in it. It
has been found that to require the electors to desig-
nate 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. he 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 Presi-
dent, “ as in the case” (provided by the Constitution)
“ of the death orv other constitutional disability of the
President.”
In the appointment of the Vice-President, the
amendment has also introduced some changes. The-
CH. XIIL] SUCCESSION TO THE PRESIDENCY.
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-Presi-
dent ; 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 qualiﬁca-
tions for the office of Vice-President as had been
established by the Constitution for the office of Pres-
ident.1
Thus it appears, from an examination of the origi-
nal Constitution and the amendment, that the most
ample provision is made for ﬁlling the executive of-
ﬁce, 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 Representa-
tives. If that body does not choose a President be-
fore the fourth day of March next ensuing, the oflice
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 Pres-
ident, 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 Con-
1 See post, p. 621.
VOL. 11. 51
402 FORMATION on THE CONSTITUTION. [BOOK 1v.
gress authority to provide by law for the case of re-
moval, 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 re-
moval, death, resignation, or inability, not of the
President and Vice-President elect, but of the Presi-
dent and Vice-President in office. It may be doubted
whether the framers of the original Constitution in-
tended to provide for a vacancy in both offices occa-
sioned by the failure of the House of Representatives
to elect a President and the death of the Vice-Presi-
dent 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 pur-
pose of making the States in that body feel the im-
portance 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 Repre-
CH. xIH.] sUOoEssIoN To THE PRESIDENCY 403
sentatives have failed to choose a President, “ as in
the case of the death or other constitutional disabil-
ity of the President.” This adoption, for the case
of a non-election by the House, of the mode of suc-
cession 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 inabil-
ity 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.‘
1 Congress, however, have not
only provided that the President
pro tempore of the Senate and the
Speaker of the House of Repre-
sentatives shall successively act as
President, in case of the removal,
death, resignation, or inability both
of the President and Vice-Presi-
dent, until the disability be re-
moved or a President shall be elect-
ed, but also that, whenever the
offices of President and Vice-Pres-
ident shall both become vacant, a
new appointment of electors shall
be ordered, and a new election
made. The constitutional author-
ity for this latter provision is at
least doubtful. (Act of March 1,
17 92.) I have discovered no evi-
dence that the framers of the
Constitution contemplated an in—
termediate election of President
and Vice-President, excepting an
amendment moved by Mr. Madi-
son. 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 Gov-
ernor Randolph, and terminated
thus: “And such officer shall act
accordingly, until the time of elect-
ing a President shall arrive.” Mr.
Madison moved to substitute for
this the words, “ until such disabil-
ity be removed, or a President
shall be elected”; and he has re-
corded in his Minutes, that he re-
marked, on moving this amend-
ment, that the phraseology of Gov-
ernor Randolph “would prevent a
supply of the vacancy by an inter-
mediate election.” This amend-
ment 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 ne-
cessarily import an authority to
Congress to order an intermediate
election, any more than those used
404 FORMATION OF THE CONSTITUTION. [BOOK Iv.
The committee of detail made no provisionre-
specting the qualiﬁcations of the President. But
the grand committee, to whom the construction of
the ofﬁce was referred, recommended the qualiﬁca-
tions 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 at-
' tained the age of thirty-ﬁve years, and been fourteen
years a resident within the United States. These
requirements were adopted with unanimous assent.1
That the executive Should receive a Stipend, or
pecuniary compensation, was a point which had
been settled in the earliest, stage of the proceedings,
by Governor Randolph. ‘Either of
these "expressions, when incorpo-
rated into the Constitution, would
have to be construed with refer-
ence to the whole system prescribed
by the Constitution for ﬁlling the
executive branch of the‘ govern-
ment. Taking all the provisions
together, it appears that the 'ex-
ecutive power is to be vested in
a President, who is to hold if his
oﬁice 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 sue-
ceed 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 oﬂice 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 ” cer-
tainly 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.
1 Elliot, V. 462,507, 521, 522.
CH’ XIII] SALARY OF THE PRESIDENT. 405
notwithstanding the grave authority of Franklin,
who was opposed to it. The speech which he de-
livered 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 de-
cidedly 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 menjin
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 char-
acter, but no one failed to see that it was a “ Utopian
idea.” 1 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
1 He anticipated that it would Franklin as any man could be,
be so regarded. Hamilton, who seconded the motion, out of respect
was in all his views, as unlike for the mover.
406 FORMATION or THE CONSTITUTION. [BOOK IV.
nature of the war, his own eminence, his character
and feelings, the poverty of a country which he fore-
saw 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 inad-
missible 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 individ-
ual 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 succes-
sors 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 govern-
ment, 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 com-
pensation 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 dimin-
ished during the period for which a President has
CH. XIIL] QUESTION OF A CABINET.
been elected.1 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.2
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 respon-
sibility, and the extent to which it might be shared
by or imposed upon any other Officers, became mat-
ters 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 dif-
ferent 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 prac-
tical 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 ques-
tion concerning a cabinet, or council of state; an
advisory body, with which some Of the most im-
portant persons in the Convention desired to sur-
1 Elliot, V. 380. aware, and North Carolina voted
2 Connecticut, New Jersey, Del- against it.
408 FORMATION OF THE CONSTITUTION. [BOOK Iv.
round the President, to assist him in the discharge -
of his duties, without the power of controlling his
actions, and without diminishing his legal responsi-
bility. Such a plan not having received the sanction
of the Convention, the draft of ' the Constitution re-
ported by the committee of detail of course contained
no provision for it. It was subsequently brought
forward, and received the recommendation of a com-
mittee ; 1 but the grand committee, who were charged
with the adjustment of the executive office, substi-
tuted for it a different provision, which ,gave the
President power to “ require the opinion in writing
of the principal oﬁicer in each of the executive de-
partments, upon any subject relating to the duties
of their respective oﬂices.” The friends of a council2
regarded this arrangement of the executive office,
especially with regard to the power of appointment,
as entirely defective? 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 oﬂicial
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
1 Elliot, v. 446, 462. 3 Elliot, v. 525.
- 9 Mason, Franklin,Wilson, Dick-
inson, and Madison.
CH- XIIL] POWERS OF THE PRESIDENT. 409
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 as-
sistance from the great officers of the executive de-
partments 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 of-
ﬁcial act must be performed as his Own.1
What those powers were to be, had not been fully
1 Those who are not familiar
with the precise structure of the
American government will proba-
bly 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 pow-
er is to be exercised by the uncon-
trolled will of the President. Act-
ing upon the clause of the Constitu-
tion which empowers the President
to call for the opinions in writing
of the heads of departments, Wash-
ington, the ﬁrst President, com-
menced the practice of taking their
opinions in separate consultation;
and he also, upon important occa-
sions, assembled them for oral dis-
cussion, 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, fol-
lowed substantially the same prac-
VOL. II. 52
tice. The third President, Mr.
Jefferson, adopted ‘a somewhat dif-
ferent practice. \Vhen a question
occurred of sufﬁcient magnitude to
require the, opinions of all the heads
of departments, he called them to-
gether, 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 unanim-
ity in sentiment that prevailed in
his cabinet, and to his desire to
preserve that unanimity, and part-
ly to his disinclination to the exer-
cise 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 execu-
tive, in fact, a directory. Jeffer-
son’s \Vorks, V. 94, 568, 569.
410 FORMATION OF THE CONSTITUTION. [BOOK 1v.
settled when the ﬁrst draft of the Constitution came
from the committee of detail. The executive func-
tion, 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 pro-
vided for by the Constitution; the receiving of am-
bassadors; 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 de-
partments of an executive, a legislative, and a judi-
ciary, implied, for the ﬁrst of these departments, ac-
cording 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
CH. xIIL] POWERS OE THE PRESIDENT. 411
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 sep-
aration of that department from the legislative and
the judiciary. But it became apparent at the very
commencement of the process of forming the Consti-
tution of the United States, that the question wheth-
er 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, overthe 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 magis-
trate would be elective. This was not intended, and
was not admissible. Still another reason for mak-
ing the government of the United States, in this
412 FORMATION OE THE ooNsTITUTIoN. [BOOK Iv.
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 “ vestec ” in the President. In the resolu-
tions, 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 na-
ture, as might from time to time be delegated to the
President by Congress.1 The committee of detail, in
drafting the Constitution, employed the phrase “ ex-
ecutive power” to describe what had thus been des-
ignated 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 “ex-
ecutive power.” In order, moreover, that the execu-
tive duties might be still more clearly deﬁned, the
committee provided that the President “ shall take
care that the laws be faithfully executed,” and im-
posed upon him the same obligation by the force of
his oath of office. The committee having been di-
rected to provide for the end in view, it was consid-
1 Elliot, v. 141, 142.
CH. XIIL] POWERS OF THE PRESIDENT.
413
ered that they were also to provide the means by
which the end was to be obtained.1 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 com-
mander-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.2
Closely allied to the power of executing the laws
is that of pardoning offences, and relieving against
judicial sentences.
This power was originally ex-
1 Elliot, V. 343, 344.
2 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 employ-
ment 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.
414 FORMATION or THE CONSTITUTION. [BOOK 1v.
tended by the committee of detail to all offences
against the United States, excepting cases of impeach-
ment, 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 he pleaded in bar of an im-
peachment, he may, after conviction, pardon the of-
fender. But as it was intended in the Constitution
of the'United States to limit the judgment in an im-
peachment 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 judg--
'ment 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.1 A strong effort was indeed made to es-
tablish another exception in cases of treason, upon
the ground, chieﬂy, that the criminal might be the
President’s own instrument in an attemptv to subvert
the Constitution. But since all agreed that a power
of pardon was as necessary in cases of treason as in
all other oﬁ'ences, and as it must be given to the leg-
islature, or to one branch of it, if not lodged with the
executive, a very large majority of the States pre-
ferred to place it in the hands of the President, espe-
cially as he would be subject to impeachment for any
participation in the guilt of the party accused.2
The power to make treaties, which had been given
1 Elliot, v. 480. 2 Ibid. 549.
CH. xIIL] POWERS OF THE PRESIDENT. 415
to the Senate by the committee of detail, and which
was afterwards transferred to the President, to be ex-
ercised 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 ex-
plained. 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 termi-
nated. As the President was to be the organ of
communication with other governments,‘ and as he
would be the general guardian of the national inter-
ests, 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 inter-
ests of the nation, but might touch the particular
interests of individual States, and, whatever their ef-
fect, 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
1 It was to be one of‘ the distinct ceive ambassadors and other public
functions of the President “to re- ministers.”
416 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
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 impor-
tance.1 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 diﬁiculty of obtaining peace
would be so great, that the legislature would be un-
willing to make war on account of the ﬁsheries, the
navigation of the Mississippi, and other important
objects of the Union.2 On the other hand, it was
said that a majority of the States might be a minor-
ity 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 deter-
mination 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 ratiﬁca-
tion of all treaties. The rule of the Confederation,
which had required the assent of nine States in Con-
gress 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
1 Mr. Madison so thought. Elliot, V. 524. 2 Ibid.
CH. XIIL] POWERS OF THE PRESIDENT.
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 Presi-
dent represents the people of the United States gen-
erally, 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 simpli-
ﬁed.1 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 re-
ceived its ﬁnal scope and limitations. The plan re-
ported by the committee of detail had, as we have
repeatedly Seen, vested the appointment of ambassa-
dors 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
1 The several votes taken upon the text. See the proceedings,
different aspects of the rule for the September 7, 8. Elliot, V.- 524,
ratiﬁcation of treaties make the the. 526.
ory quite clearly what is stated in
voL. II. 53
418 FORMATION OF THE CONSTITUTION. [BOOK Iv.
of all ofﬁcers to the President, but required the ad-
vice and consent of the Senate to complete an ap-
pointment. Two inconveniences were likely to be
experienced under this arrangement. -Many inferior
oﬂices might be created, which it would be unneces-
sary and inexpedient to ﬁll by this, process of nomi-
nation 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 powerwas given. to the
President to ﬁll up all vacancies that might happen
during the recess of the Senate, by granting commis-
sions which should expire at the end of their next
session.1 In order to restrain the President from
practically creating offices by the power of appoint-
ment, his power was limited to “ oﬂices created by
law,” and to those specially enumerated in the Con-
stitution.2
the imperative duty of the President
to nominate, and with the consent
1 This power embraces of course
only those offices the appointment
to which is vested in the President _
and Senate.
2 The Constitution (Art. II.
§ 2) seems to contemplate ambas-
sadors, other public ministers and
consuls, and judges of the Supreme
Court, as oﬂicers to exist under the
Constitution, whether provision is
or is not made by law for their ap-
pointment and functions. It is made
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 in-
tercourse of the country, he could
prescribe the duties of such a‘minis~
ter. In like manner, with the con-
CH. x111] POWERS or THE PRESIDENT. 419
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 expe-
dient. The other was embraced in the power to
convene the two houses on extraordinary occasions;
and, whenever there should be a disagreement be-
tween them with respect to the timeof adjournment,
to adjourn them to such time as he shall think prop-
er. 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 com-
mencement of the next regular session. But subject
to this restriction, the power of the President to deter-
mine the time at which the two houses shall reassem-
ble, when they do not agree upon a time, extends to
every session of Congress, whether it be regular or
“ extraordinary.” ‘
sent of the Senate, the President
could appoint a judge of the Sn-
preme Court, and would be bound
to do so, although no act of Con-
gress existed providing for the or-
ganization and duties of the Court.
But as the President cannot distrib-
ute the judicial power, the Court,
when so appointed, would have on-
ly the functions conferred by the
Constitution, namely, original juris-
diction in certain enumerated cases.
1 In the text of the Constitution,
the President’s power to adjourn
420
FORMATION OF- THE CONSTITUTION. [BOOK ‘IV.
the-two houses of Congress in case
of a disagreement follows immedi-
ately after his power to convene
them on “extraordinary occa-
sions”; 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 sep-
arate powers of the President, re-
cited serialim. The power to con-'-
vene 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 par-
ticular time, in cases ofdisagree-
ment 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 apeace-
ful termination of what would oth-
therwise be an endless and danger-
ous controversy. Both Hamilton
in the Federalist and Judge Story
in his Commentaries have treated
this as a separate and general pow—
er. (The Federalist, No. 77. vSto-
ry on the Constitution, § 1563.)
o H A PTE R XIV.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.—FORMA-
TION 'OF THE JUDICIAL POWER.
THERE now remains to be described the full con-
ception 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 depart-
ments 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
422 FORMATION OF THE CONSTITUTION. [BOOK 1v.
individual is to be under rules of civil duty de-
clared 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 dif-
ﬁcult 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 X
Cu. XIV.] SCOPE OF THE JUDICIAL POWER.
the purposes of its creation, is one of the most ad-
mirable and felicitous structures that human govern-
ments 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 prin-
ciples 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 estab-
lished, beyond the reach of any power of diminu-
tion 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 respect-
ing 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 pro-
vided, under the ﬁrst of these heads, ‘that the juris-
diction should embrace cases arising under the laws
of the United States; and as questions ‘touching the
national peace and harmony, they enumerated all
424 FORMATION OF THE CONSTITUTION. [BOOK Iv.
cases affecting ambassadors, other public ministers,
, and consuls; impeachments of officers of the United
States; all cases of admiralty and maritime jurisdic-
tion; controversies between two or more States, ex-
cepting such as might regard territory or jurisdiction;
controversies between a State and citizens of another
State, between. citizens of different States, and be-
tween a State or the citizens thereof and foreign
states, citizens, or subjects. In cases of impeach-
ment, cases affecting ambassadors, other public min-
isters, 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 enu-
merated, 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 con-
sequently excluded from the judicial power.
This plan, when compared with the full Outline
of the jurisdiction, as it was ﬁnally established, pre-
sented 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
CH. XIV.] SCOPE or THE JUDICIAL POWER. 425
proceedings in equity and proceedings at common
law. This distinction, which extends not only to
the forms of pleading, but to the principles of decis-
ion, the mode of trial, and the nature of the remedy,
had been brought by the settlers of most of the Col-
onies 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 fea-
ture 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 jurispru-
dence 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 af-
forded 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 adjudi-
cated 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 expe-
dient that the Constitution should fully adopt the
main features of that judicature. It is quite true,
voL. II. 54
426 FORMATION OF THE CONSTITUTION. [BOOK TV.
that a provision in the Constitution extending the
judicial power to “ all cases ” affecting certain persons
or certain rights, might be regarded by the legisla-
ture 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 con-
templated 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‘ dec-
laration 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 su-
preme tribunal, they might well say that the charac-
ter of the judicial power was left to the accidental
choice of Congress, or to doubtful interpretation, in-
stead of being expressly ordained in its full and es-
sential 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 proceed-
on. XIV.] SCOPE OF THE JUDICIAL POWER. 427
ings of the common law. If the appellate jurisdic-
tion of the supreme national tribunal were to be ex-
ercised 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 em-
braced within that appellate power. For these rea-
sons, it became necessary for the Convention to sup-
ply this defect, by extending the judicial power,
both in equity and at law, to the several cases em-
braced in it.
Another defect in the report of the committee, —
or what was regarded as a defect when the Constitu-
tion 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 Con-
stitution, and adopted in 17 91 ; 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.‘ It is quite possible that, after the Constitu-
tion had declared that the jurisdiction of the nation-
al tribunals should extend to all cases “in law ” af-
fecting 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,
1 Elliot, V. 550.
‘428 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 ap-
pellate jurisdiction over all the other cases enumer-
ated. Inquiry was made in the Convention, whether
this appellate urisdiction was intended to embrace
fact as well as law, and to extend to cases .Of com-
mon law as well as‘ to those of equity and admiralty
jurisdiction. The answer was given, that such was
_the intention of the committee, andthe jurisdiction
of the federal court of appeals, under the Confedera-
tion, 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.1 Various explana-
tions 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 Ham-
ilton in the Federalist,2 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
1 Elliot, V. 483. 2 No. 81.
CH. XIV.] SCOPE OF THE JUDICIAL POWER. ‘ 429
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, be-
tween 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 conced-
ed 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 juryr 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 appel-
late tribunal concerning the facts appearing to have
been found by a jury.1
There was still another omission in the report of
the committee, of great magnitude. They‘ had in-
cluded 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 trea-
ties. At the same time, the Constitution was to
embrace not only the powers of the general govern-
1 See the seventh Amendment.
430
FORMATION OF THE CONSTITUTION. [Boon IV.’
ment, 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 ar-
rest, 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, Cgnstitu.
tion, therefore, required that, by some comprehensive
provision, all judicial cases1 arising under the Con-
stitution, 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 depart-t
ment of the general government -— should be brought.
within the cognizance of the national udiciary. This
provision was added by the Convention. It com-
pleted the due proportions and efficacy of this branch
of the judicial power.
1 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 occa-
sion to act under provisions of the
Constitution, but all cases of a ju-
dicial nature; that is, cases which,
having assumed the form of judi-
cial-proceedings between party and
party, involve the construction or
operation of the Constitution of the
United States. Elliot, V. 483.
on. XIV.] PURPOsEs or THE JUDICIAL POWER. 431
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.‘
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 trans-
fer to the judiciary of controversies between the
Statesv respecting jurisdiction or territory, and con-
troversies 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 constitu-
tional functions.
One of the leading purposes for which this branch
1 Elliot, V. 484. Constitution, Art. III. § 2, clause 3.
482 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 pur-
poses, 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 ad-
vantages and blessings for which the State govern-
ments 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 secur-
ing to them certain rights. It comes into this rela-
tion by reason of its supreme legislative power over
certain interests, and the supreme authority of its re-
strictions 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
CH. XIV.] PURPOSES OF THE JUDICIAL POWER.
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 Con-
gress 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 en-
forced by executive power; but the Constitution
has interposed the judicial department, as the more
peaceful agent, which can at once adjudicate be-
tween the government and the citizen, and compel
the payment of what is found due. Again, the Con-
stitution 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 en-
ables him ﬁnally to resort to the national judiciary,
which haspower 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
voL. II. 55
434 FORMATION OF THE CONSTITUTION. [BOOK Iv.
of deﬁning the powers of the general government
and of each of its departments, and establishing cer-
tain 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 funda-
mental law. On the one hand, the judicial depart-
ment 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 depart-
ment 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 legisla-
tive 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 udicial 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 pur-
poses of the adjudication, to declare even an act of
legislation to be void, which conﬂicts with any pro-
vision 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 ;1 and undoubtedly such a
1 Elliot, v. 429.
CH. XIV.] PURPOSES OF THE JUDICIAL POWER.
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 as-
serted 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 con-
formity 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 ‘sus-
pended, 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
436 FORMATION OF THE CONSTITUTION. [BOOK Iv.
the law is enforced in his case. On the other hand,
if the ﬁnal and authoritative determination is post-
poned 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, orwho acts under it, the question itself is pro-
pounded not in the abstract, but in the concrete; not
in reference to the bearing of the. law upon all possi-
ble 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 ju-
risprudence 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 require-
ments, of a written fundamental law. No depart-
ment of the national, or of any State government, can
lawfully act otherwise than according to the powers
conferred or the restrictions imposed by that instru-
ment. If the citizen believe himself to be aggrieved
by some action of either government which he sup-
poses to be in violation of the Constitution, and his
complaint admit of judicial investigation, he must
begheard upon that question, and it must be adjudi-
cated, or there can be no administration of the laws
worthy of the name of justice.
It is interesting, therefore, to‘ observe how this
CH. XIV.] PURPOSES OF THE JUDICIAL POWER. 437
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 meas-
ures 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 constitu-
tional power to enact a law can be determined, with-
out the inﬂuence of considerations of policy or ex-
pediency, 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
438 FORMATION OF THE CONSTITUTION. [BOOK TV.
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,‘ what-
ever public body is specially instituted for the pur-
pose 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 invad-
ing the legislative province, by acting upon motives
of expediency, it must be allowed that the framers
of the Constitution did wisely in rejecting the arti-
ﬁcial, 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 employ-
ment 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 unne-
cessary, 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
CH. xiv] PURPosEs OF THE JUDICIAL POWER. 439
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 pre-
sented 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 de-
vised, 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 depart-
ment 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 judi-
cial power of the general government should be so
constructed as to enable it to take the same cogni-
zance of a constitutional question, when arising upon
the law of a State, “that it was to take of such a ques-
tion 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 Consti-
tution 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
440 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 neces-
sary, and yet so certain to wound and irritate, if ex-
ercised by direct interference, could be wielded, with-
out 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 execu-
tion of treaties rests upon the same grounds of para-
mount necessity. It is not merely for the sake of
uniformity of interpretation, that the national judi-
ciary 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 ab-
solute 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 govern-
ment. “ The United States in Congress assembled,”
CH.XIV.] PURPOSES OF THE JUDICIAL POWER. 441
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 suprem-
acy 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, re-
quiring the obedience of individuals and of all public
authorities, its execution must be committed to a
judiciary acting upon private rights without the hin-
derance 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 admin-
istration of justice in all cases in which private rights
alone are concerned, and by which no power or in-
terest of the general government, and no provision
of the general Constitution, is likely to be affected.
VOL. II. 56
442 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
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 contro-
versy; and its existence there is to be accounted
for upon other than speculative reasons. From the
Declaration of Independence to the day of the rati-
ﬁcation 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 expecta-
tions of an enlightened udgment. Hence the ne-
cessity 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 possess-
ing a full power of legislation, it could not but hap-
pen—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 Con-
federation 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
CH. XIV.] PURPOSES OF THE JUDICIAL POWER.
almost wholly upon the spirit of the tribunals, and
upon their capacity to give effect to such a declara-
tion of rights, against a course of State policy or the‘
positive enactments of a State code. The chief dif-
ﬁculty 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 beheld 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 de-
pends upon the conﬁdence it inspires.
There were still other and perhaps stronger rea-
sons for creating an independent jurisdiction, to be
resorted to by foreigners, in controversies with citi-
zens 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
444 FORMATION OF THE CONSTITUTION- [BOOK Iv.
necessary to give them access to tribunals organized
under the authority of the general government, which -
would be responsible to foreign powers for the treat-
ment that their subjects might receive in the United
States. Ambassadors, too, and other foreign I min-
isters, would not only be aliens, but would possess
the character of representatives of their sovereigns;
and consuls would be the public agents of their gov-
ernments, although not bearing the diplomatic char-
acter. 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 involvedin their ‘per-
sonal or Official relations, original jurisdiction ‘was
given to the Supreme Court in all cases affecting
them. I ' '
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 juris-
diction for similar reasons; — because the State tri-
bunals could not be expected to afford that degree of
'CH. XIV.] PURPOSES OF THE JUDICIAL POWER.
impartiality which the circumstances of these several
' cases required.
There remains only one other branch of the juris-
diction 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 admiral-
ty, 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 exclu-
sive power of appointing courts for the trial of the
former, and for hearing and ﬁnally determining ap-
peals in all cases of capture. Such appeals were
taken from the State courts of admiralty,——- tribunals
which also possessed and exercised a civil urisdiction
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 inter-
course 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 uris-
diction, original as Well as appellate, to the govern-
ment of the Union. This was effected by the com-
prehensive 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 foren-
sic controversy with respect to the particular trans.
446 FORMATION OF THE CONSTITUTION. [BOOK Iv.
actions, 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 in-
tention of the framers of the Constitution.
CHAPTER XV.
9
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED—EFFECT
OF REOORDs. —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 inti-
mate 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 bene-
ﬁts resulting from the laws of each State to be, for
some purposes, respected in every other State. III
other words, by the establishment and effect of cer-
tain exceptions, the general rule which absolves an
independent government from any obligation to re-
gard 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
448 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 sep-
arate States, and the object of the provisions above
cited was “ the better to secure and perpetuate mu-
tual friendship and intercourse among the people”
of those States. One of the purposes of the Consti-
tution, on the other hand, was “ to form a more per-
fect Union” ; and we are therefore to expect to ﬁnd
its framers enlarging and increasing the scope of
these provisions, and giving to them greater precis-
ion 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 privi-
leges 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.” 1 It is probable that
1 See and compare Art. IV. of the Confederation and Art. IV. § 2 of
the Constitution.
on. xv.) FUGITIVES FROM JUSTICE. 449
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 immu-
nities of free citizens in other States besides their
own.
In the next place, while the Articles of Confedera-
tion 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 proceed-
ings shall be proved, and the effect to be given to
them when proved.1
With respect to fugitives from justice, the Arti-
cles of Confederation had speciﬁed persons “ charged
with treason, felony, or other high misdemeanor in
1 So far as the proceedings in
the Convention are to be regarded
as a guide to construction, it ap-
pears clearly that the clause which
empowers Congress to “ prescribe
the manner in which such acts,
records, and proceedings shall be
proved, and the eﬁ'ect thereof,” was
intended to give a power to declare
VOL- 11. 57
the effect of the acts, records, and
judicial proceedings of any State,
when offered in evidence in anoth-
er State, as well as to prescribe
the mode of proving them. See
Elliot, V. 487, 488, 503, 504. See
also a learned discussion on this
clause in Story’s Commentaries,
§§ 1302 - 1313.
450 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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.1 .
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 ar-
rangement 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 jeal-
ousy had been felt and expressed by some of the
Southern members, not only with regard to the rel-
ative 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
1 Elliot, V. 487.
CH. xv] EUGITIvEs FROM SERVICE. 451
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 in-
troduced by their constitutions or by statutory pro-
vision. 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 recog-
nized, 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 Caro-
lina, 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
452 FORMATION or THE CONSTITUTION. [BOOK Iv.
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 im-
portance. 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 mas-
ter to the services of the slave would be wholly
, for a provision “in favor of property in slaves.
insecure.
It was in reference to this anticipated condition of
things, that General Pinckney of South Carolina, at
the time when the principlés that were to he the
basis of the Constitution were sent'to the committee
of detail,1 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 in-
ﬂuence of this gentleman, his declaration was equiv-
alent to a notice that, without such a provision, the
Constitution would not be accepted by the State
which he represented. Still, the committee of de-
tail 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.2 General Pinckney
was not satisﬁed with this, and renewed his demand
7, 3
1 July 23d. Elliot, V. 357. 3 These ‘are the words of 'Mr.
2 Art. XIV. of the report of the Madison’s Minutes. Elliot, V. 487.
committee of detail. This was on the 26th of August.
cs. xv.] FUGITIVES FROM. SERVICE. 453
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 ‘9 fugitive
slaves and servants to be delivered up, like crimi-
nals.”1 Objection was made, that this would re-
quire the executive of the State to do it at the
public expense,2 and that there was no more pro-
priety in the public seizing and surrendering a
slave or a servant, than a horse.3 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.4
For a provision respecting fugitives from service,
the movers had two remarkable precedents to which
they could resort, and which had settled the correct-
ness 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, Plym-
outh, Connecticut, and New Haven had formed a
confederation, in which, among other things, they
had mutually stipulated with each other for the res-
toration of runaway “ servants ”; and there is indu-
1 Madison, ut supra. The mo- 9 By Wilson.
tion was made by Butler and 3 By Sherman.
Pinckney, according to Mr. Mad- 4 Madison, ut supra. August 28.
ison.
454
FORMATION OF THE CONSTITUTION. [BOOK IV.
bitable evidence, that African slaves, as‘ well as other
persons in servitude, were included in this provision.1
The other precedent was found in the Ordinance '
which had‘ just been adopted by Congress for the
settlement and government of the Territory north-
1 The reader who will consult a
paper in the fourth volume of the
Collections of the Massachusetts
Historical Society (p. 194), writ-
ten by Dr. Belknap, in 1795, will
ﬁnd that slavery, in the sense in
which the term is now commonly
understood, existed in Massachu-
setts 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 juris-
diction 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 Af-
rica, who had been “lawfully ” ac-
quired, that is, by fair purchase
from those who held them as pris-
oners 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 respect-
ing service, being sometimes de-
scribed as “slaves,” and sometimes
by the more general and compre-
hensive term of “ servants.”— Slav-
ery by judicial sentence was in-
ﬂicted 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 slazge to whom
the Court shall appoint.” (Shurt-
leff’s Edition of Records of Mas-
sachusetts, I. 246.) Many of the
Indians taken prisoners in King
Philip’s war, who had formerly
submitted to the Colonial govern-
ment- and had been called“ Pray-
ing 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.)
CH. xv.] EUGITIvEs FROM sERvIeE. 455
west of the river Ohio; in which, when legislating
for the perpetual exclusion of “ slavery or involun-
tary 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 Confedera-
tion, 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 af-
forded 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 ser-
vice, 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
456 FORMATION OF THE CONSTITUTION. [BOOK IV.
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 IIECGSSEII‘Y to secure to them their right of
exclusive control over the question of emancipation,1L
and it was adopted in the Convention by unanimous
consent,2 for the express purpose of protecting a
right that would otherwise have been without a sat-
isfactory 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 posi-
tive obligation to support the institutions, or to en-
force 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 coun-
try 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 na-
tion is not obliged to surrender those who have taken
1 Mr. Madison stated in the Con- enable owners of slaves to reclaim
vention of Virginia in which the them.” (Elliot’s Debates, 111
Constitution was ratiﬁed, that “ this 453.)
clause, was expressly inserted, to 2 August 29. Elliot, V. 492-
on. xv] FUGITIVES FROM ssnvrcn. 4.57
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. N o for-
eigner, 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. \Vhether 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 in-
dependent 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 connec-
tion, to surrender fugitives from that relation, or to
do anything to enforce its duties. But such fugi-
tives 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 de-
mands 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 ex-
clude or to surrender them is perfect; for every po-
litical society has the moral power, and is under a
von. 11. 58
458 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 deter-
mining 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 recogniz-
ing 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 giv-
ing a particular effect to each other’s laws, or for sus-
taining each other’s institutions, which do not oper-
ate 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 obli-
gation. 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 repub-
lican 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.
on. xv] FUGITIVES FROM SERVICE. 459
In the same way, although nations in general do not
recognize the relation of master and servant prevail-
ing by the law of another country, so far as to stip-
ulate for the surrender of persons escaping from that
relation, the American States found themselves sur-
rounded 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 proceed-
ings 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.‘ 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 nation-
al 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.
1 I am not aware of any more of the Constitution was expressly
positive evidence than that above made in the Convention a condition
given in the text, that this clause of assent by any of the States.‘
4.60 FORMATION or THE CONSTITUTION. [BOOK 1v.
or be left exclusively to the local authority of each
State. There was no middle or debatable ground,
which it could with safety he suffered to occupy.
The African race, although scattered throughout all
of the States, was placed in very different circum-
stances in different parts of the ‘country. There
could have been‘ no national legislation with respect
to that race, concerning the time or mode of emanci-
pation, the tenure of the master’s right, or the treat-
ment of the slave, that would not have been forced
to adapt itself to ‘an almost endless variety of circum-
stances 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 soci-
ety, 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 Constitu-
tion 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 na-
tional legislation; and we may imagine, for the pur-
poses of the‘argument, that consent had been given
on. xv.] FUGITIVES FROM SERVICE. 461
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 bet-
ter 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 represen-
tatives 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 oh-
tains nowhere else among distinct communities, and
require that the fugitive from this relation of a pure-
ly 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 de-
clares him to be a slave? Why should the States
462 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 Con-
stitution, and they admit of an answer.
The most material answer to them is, that, with-
out 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 inter-
ference 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 Con-
stitution 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 continu-
ance 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 condi-
tion of the subjected race, than could have been at-
tained in the same localities if the States had been in
all respects resolved into one consolidated republic.
on. xv.] FUGITIVES FROM SERVICE. 463
Let the reader spread before him the map of the
thirteen republics of 17 87, 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 popula-
tion. Let him observe how that population must
have tended away from the regions where the labor
1 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 sepa-
rate 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 fertil-
ity must have retained the African, and with him
scarcely any white man but the speculator, the over-
seer, and a solitary tradesman. Into such regions
as those, the national authority could not have pen-
etrated with success. Legislation would have want-
ed the necessary machinery, by which to reach and
elevate the condition of society at such remote ex-
tremities 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 v
464 FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
the States. In each of them there is a complete and
efficient government. Each has its history, unbro-
ken 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 organ-
ized 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 judg- 4
ment 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 ef-
fected for that race what no national legislature could
have accomplished. For, if we look back to the pe-
riod 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 Caro-
lina 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 subdi-
visions of the country, or of their still more numer-
ous descendants, by a single and uniform measure
comprehending them all, would at no time since the
Constitution was adopted have been a merciful or de-
fensible act. Nothing could have remained, there-
fore, for the national power to do, but to attempt
such legislation as might tend to regulate and ame-
liorate the condition of servitude; and such legisla-
tion must have been wholly ineffectual, and would
Ca. xv.] FUGITIVES FROM SERVICE. 465
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 deli-
cate and embarrassing of all the social problems in-
volved 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 re-
gions.1 As it is, it is to be remembered that, wher-
ever 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 appar-
ent inconsistency which has sometimes attracted the
attention of those who view the institutions of the
United States from a distance, and without a suﬁi-
1 In 1790, the slaves numbered to 3,204,313, and the whites‘ to
697,897, and the whites 3,172,464. 19,533,068.
In 1850, the slaves had increased
von. 11. 59
466 FORMATION OF THE CONSTITUTION. [BOOK Iv.
cient 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 them-
selves 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 disre-
garded by the generation who established the Con-
stitution 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
on. xv] sUPPosED INCONSISTENCY. 467
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 govern-
ment, 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.
OHAPTER XVI.
REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.—- GUAR-
ANTY OF REPUBLIOAN GOVERNMENT AND INTERNAL TRANQUIL-
LITY. - OATH TO SUPPORT THE CONSTITUTION. ——-MODE 0F
AMENDMENT. —RATIFIOATION AND EsTAELIsIIMENT OF THE
CoNsTITUTIoN. -_ SIGNING BY THE MEMBERS OF THE CON-
vENTIoN.
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 de-
scribed. It should be said here, however, that the
Objects of such a provision were two; ﬁrst, to pre-
vent the establishment in any State of any form of
government not essentially republican in its char-
acter, 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.1 When the com-
mittee 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 repub-
lican form of government, and to protect each State
against invasion, without any application from its
1 Elliot, V. 332, 333.
CH. XVL] GUARANTY or REPUBLICANISM. 469
authorities; and to protect the State against do-
mestic violence, on the application of its legisla-
ture.1 N 0 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.2
It now remains for me to state what appears to
have been the meaning of the framers of. the Con-
stitution, embraced in these provisions. It is ap-
parent, 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 con-
trol 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 exist-
ence of some organic law, establishing the depart-
ments 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 estab
lished organs or representatives! Is it competent to
a State to abolish altogether that body of its funda-
1 First draft of the Constitution, 9 Constitution, Art. IV. §~4,
Art. XVIII. Elliot, v. 381.
470 FORMATION OF THE CONSTITUTION. [BOOK 1v.
mental law which we call its Constitution, and to
proceed as a mere democracy, enacting, expounding,
and executing laws by the direct action of ‘the peo-
ple, and without the intervention of any repre-
sentative system constituting what is known as a
government’! “ l
The Constitution of the United States assumes, in
so many of its provisions, that the States will possess
organized governments, in which legislative, execu-
tive, 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 legisla-
ture 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
CH. XVL] GUARANTY or REPUBLICANISM. 471
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 dis-
tinct 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 neces-
sary to take into view the previous history of Ameri-
can political institutions, because that history shows
what is meant, in the American sense, by a “ repub-
lican ” government.
History, then, establishes the fact, that, in the
American system of government, the people are re-
garded 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 par-
ticular 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,
I
472 FORMATION OF THE CONSTITUTION. [BOOK Iv.
according to the public will. " It may be said, there-
fore, 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 rep-
resentative character; and these organs constitute
the government. How much or how little power
shall be imparted to this government, what restric-
tions 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 ex-
' ercise of the'authority of the State, and will so con-
tinue 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 gov-
ernment. 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
on. XVL] AMENDMENT. 47 3
of the people operating to change it through the
forms of constitutional action.
The next topic on which the Convention was re-
quired to act was the question whether the Consti-
tution 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, in-
deﬁnitely; and that it might, as far as possible, be
placed beyond the danger of destruction, it was ne-
cessary to make it subject to such peaceful changes .
as experience might render proper, and which, by be-
ing 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 ren-
der a resort to the latter, for the purpose of meliora-
tion or reform, save in extreme cases of oppression,
‘ unnecessary. According to our American theory of
government, revolution and amendment both rest
voL. II. 60
474 FORMATION OF THE coNsTITUTION. [BOOK Iv.
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 gov-
ernment, 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 dis-
ruption of the obligations resting on the authority
of the former government, and terminates its exist-
ence often, without saving any of the rights which
may have grown up under it. The question, there-
fore, whether the Constitution should be made capa-
ble of amendment, was identical with the question
whether some mode of amending it should be pre-
scribed 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 Consti-
tution, without requiring the assent of the national
legislature.1 But this was justly regarded as a very
important question, and the Convention came to no‘
1 Elliot, V. 157.
CH. XVL] . AMENDMENT. 475
other decision, when the committee of detail were in-
structed, than to declare that provision ought to be
made for amending the Constitution whenever it
should seem necessary.‘ 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 amend-
ments 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 amend-
ments, 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,
1 Elliot, V. 376.
47 6 FORMATION OF THE CONSTITUTION. [BOOK Iv.
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 pecu-
liar 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 confed-
eracy, 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,
on. XVL] AMENDMENT. . 477
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 con-
vention 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 Con-
gress, 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 pro-
posed are to become valid as part of the Consti-
tution, 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.1
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 towhich, as we
1 Elliot, V. 530-532.
4'78 FORMATION OF THE ooNsTITUTIoN. [BOOK Iv.
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?‘ The other was the
equality of ' representation in the Senate, so long and
at length so successfully contended for by the small-
er States.2 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.3 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 Sen-
ate, without its consent.“
The oath or affirmation to support the Constitu-
tion 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
1 Constitution, Art. I. § 9. 4 Ibid. 551, 552. Constitution,
2 Ibid. Art. I. § '3. Art. I § 3.
3 Elliot, V. 532.
on. XVL] RATIFICATION. 47 9
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 opin-
ions, 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.” ‘
We are next to ascertain in what mode the Con-
stitution, which had thus been framed, was to pro-
vide 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 suc-
ceeding generation. To us it is chieﬂy interesting
because it displays the basis of a government which
has been established for seventy years over the thir-
teen original States of the confederacy, and is now
acknowledged by more than twice the number of
those original States. To those who made the Con-
stitution, 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 practica-
ble; of the initiation of the new government without
force; of its establishment on a ﬁrm, just, and legit-
imate authority; and of its right to supersede the ‘
Confederation, without a breach of faith toward the
1 Constitution, Art. VI.
480- FORMATION OF THE coNsTITUTIoN. [BOOK Iv.
members of that body by whose inhabitants the new
system might be rejected.
The Convention had already decided that the Con?
stitution 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 re-
garded 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 sub-
mitted to the approbation of the existing Congress,
and then to assemblies of representatives to be recom-
mended 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 ques-
tion, 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 major-t
ity of the States might establish it, and so ‘bind the
on. XVL] RATIFICATION. 481
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. i
The truth with regard to these questions, which
perplexed the minds of men in that assembly some-
what in proportion to their acuteness and their prone-
ness to metaphysical speculations, was in reality not
very far off. The Articles of Confederation had cer-
tainly 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 gov-
ernment 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 gov-
emments existed, from whom those governments de-
rived their authority to enter into the compact of the
Confederation, and whose sovereign right to amelio-
rate their own political condition could not be dis-
puted. 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
voL. II. 61 '
482 FORMATION OF THE CONSTITUTION. [BOOK Iv.
legislatures to be defective and inadequate to the ex-
igencies of the Union. At the same time, the inde-
pendent 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 Constitu-
tion. If the people of a State should ratify it, they
would be bound by it. If they should refuse to rat-
ify 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.1L
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 States2 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 evenr State. This was equally true
of the constitutions of those States which had pro-
vided no mode for making such changes, and in
which the State officers were all bound by Oath to
support the existing constitution. These difficul-
ties, 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
a EmOt, v4.99. 2 Maryland.
ea. xvL] RATIFIOATION. ‘ 483
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 lib-
erty, 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 legisla-
tion.1
Whatever changes, therefore, in the State consti-
tutions 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 Consti-
tution 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 governnikent in the different States;
and if the Convention amgthe 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 as-
semblies of representatives of the people in each
State, chosen for the express purpose of deciding on
its adoption.2 I '
1 Works of Daniel Webster, VI. 9 The vote, however, was only
2'2 7. six States to four. Elliot, V. 500..
484 FORMATION OF THE coNsTITUTION. [BOOK ,Iv.
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 Con-
vention, 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.1 Maryland
continued to be present in the Convention, and a
majority of her delegates still supported the Con-
stitution; 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 unan-
imous 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 num-
ber as would form both a majority of the States and
a majority of the people of the United States. But
1 Two of the New York dele-
gates, Messrs. Yates and Lansing,
left the Convention on the 5th of
July. Hamilton had previously re-
turned to the city of New York, on
private business. He left June 29
and returned August 13. It ap-
pears 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.
CH. XVL] SIGNING. 485
there was an idea familiar to the people, in the num-
ber 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 ratiﬁ-
cations of the conventions of nine States should be
sufficient to establish the Constitution between the
States that might so ratify it.1
The Constitution, as thus ﬁnally prepared, re-
ceived the formal assent of the States in the C011-
vention, on the last day of the session.2 The great
majority of the members desired that the instrument
should go‘ forth to the public, not only with an of-
ﬁcial attestation that it had been agreed upon bythe
States represented, but also with the individual sanc-
tion and signatures of their delegates. Three of the
members present, however, Randolph and Mason of
Virginia, and Gerry of Massachusetts, notwithstand-
ing 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?‘ The objections which these gen-
tlemen 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
1 Elliot, V. 499-501. The ar- 9 September 17.
ticle embodying this decision was 3 This form of attestation had
the 21st in the report of the 00m- been adopted in the hope of gain-
mittee of detail. 'It became, on the ing the signatures of all the mem~
revision, Article VIII. of the Con- bers, but without success. '
stitution. ' ,
486 FORMATION OF THE CONSTITUTION. [BOOK Iv.
had been thought expedient.
State conventions should be at liberty to propose
amendments, and that those amendments Should'be
ﬁnally acted upon by another general convention.1
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 ne-
cessity 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, Connecti-
cut, New Jersey, Pennsylvania, Delaware, Maryland,
Virginia, North Carolina, South Carolina, and Geor-
gia. New York was not regarded as officially pres-
ent; but in order that the proceedings might have
They ‘desired that the
1 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.)
CH. xvL] THE IssUE. 487
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 Washing-
ton 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 proba-
bility is that an opportunity will never again offer -
to cancel another in peace, -- the next will be drawn
in blood.” ‘
1 My authority for this anecdote stated by a writer who dates his
is the Pennsylvania Journal of No- communication from Elizabeth-
vember 14, 1787, where it was town, November 7.
BOOK V.
ADOPTION OF THE CONSTITUTION.
VOL. II. 62
CHAPTER I.
GENERAL RECEPTION OF THE CONSTITUTION.-—HOPES OF A RE-
UNION WITH GREAT BRITAIN.--AOTION OF THE CONGRESS.—
STATE OF FEELING IN MASSACHUSETTS, NEW YORK, VIRGINIA,
SOUTH CAROLINA, MARYLAND, AND NEw HAMPSHIRE—AP—
POINTMENT OF THEIR CONVENTIONS.
THE national Convention was dissolved on the
14th of September. The state of expectation and
anxiety throughout the country during its delibera-
tions, 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 inﬂu-
ence of its principal members, had combined to create
the deepest solicitude in the public mind in all the
chief centres of population and intelligence through-
out 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
492 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
had acquired no deﬁnite knowledge of their trans-
actions, 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 an-
nounced. 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 occa-
sioned 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 “ Loyal-
ists.” 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 ma-
terials fora safe and efficient republican government
were not to be found in these States, and that the
public disorders could be corrected only by a gov-
ernment ‘of a very different character. Their feel-
ings and opinions carried them towards a reconcil-
iation, with England, and their grand scheme for this
Ca. 1.]
493
THE BISHOP OF OSNABURG.
purpose was to invite hither the titular ‘Bishop of
Osnaburg.1
Their numbers were not large in any of the States;
but the feeling of insecurity and the dread of im-
pending anarchy were shared by others who had no
particular inclination towards England; and itis not
1 It may be amusing to Ameri-
cans 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 apprehen-
sion in the popular mind for a good
while, and ﬁnally came to be im-
puted 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 command-
er-in-chief of the army, in conse-
quence of the sale of commissions
by his mistress, one Mrs. Clarke,
became in 1809 a subject of in-
quiry, leading to the most scandal-
ous revelations, before the House
of Commons. The Duke was born
in 17 63,‘ and was consequently, at
the period spoken of in the text, at
the ripe age of twenty-four. when
about a year old (1754), he was
chosen Bishop of Osnaburg. This
A was a German province (Osna-
-briick), formerly a bishopric of
great antiquity, founded by Char-
lemagne. At the Reformation most
of the inhabitants became Luther-
ans, and by the Treaty of Westpha—
lia it was agreed that it should be
governed alternately by a Roman
Catholic and a Protestant Bishop.
In 1802 it was secularized, and as,-
signed as an vhereditary principal-
ity to George III., in his capacity
of King of Hanover. Prince Fred-
erick 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. \Vhether such knowl-
edge 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, un-
der date of September 16, 1787,
says: ,“ The quondam Tories have
undoubtedly conceived hopes of a
future union with Great Britain,
from the ineﬁicacy of our govern-
ment, and the tumults which pre-
vailed during the last winter. saw
494
[BOOK V.
ADOPTION OF THE CONSTITUTION.
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
a. letter, written at that period, by a
clergyman of considerable reputa-
tion 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 con-
sequences), that the efforts of the
moderate, the wirtuous, 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 for-
merly termed Loyalists. Ever since
the peace it has been Occasionally
talked of and wished for. Yester-
day, 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 pro-
ject that can be suggested, especial-
ly when, in addition to this view,
we take into consideration how
thoroughly the patriotic part of the
community, the friends of an ef-
ﬁcient government, are discour-
aged with the present system, and
irritated at the popular demagogues
who are determined to keep them-
selves in office, at the risk of every-
thing. 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 assem-
blies. 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, 1. 443.) In a grave
and comprehensive private memo-
randum, drawn up by Hamilton
soon after the Constitution ap-
peared, in which he summed up
the probabilities for and against
its adoption, and the consequences
of its rejection, the following Oc-
eurs, as among the events likely to
follow such rejection: “ A re-
union with Great Britain, from
universal disgust at a state of com-
motion, 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 su--
preme government of this country,
with a family compact.” (Works,
II. 419, 421.)
CH. 1.] FRIENDS OF THE CONSTITUTION.
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 mem-
bers 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.” ‘
All doubt and uncertainty were dispelled, however,
by the publication of the Constitution in the news-
papers 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 differ-
ent 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
1 Pennsylvania Journal, August 22, 1787.
496 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
mercantile and manufacturing classes, who regarded
its commercial and revenue powers with great fa-
for. 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 con-
scientiously believed its provisions and powers dan-
gerous 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 plun- .
der in the form of paper money, and to bring about
the discharge of public and private debts. The dif-
ferent opponents of the Constitution being animated.
by these various motives, great care should be taken
by posterity, in estimating the conduct of individ-
uals, 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 ederal Union, its advocates be-
came known as the “ Federalists,” and its adversa-
ries as the “ Anti-Federalists.” This celebrated des-
ignation of Federalist, which afterwards became so
renowned in our political history as the name of a
partyysigniﬁed at ﬁrst nothing more than was im-
plied in the title of the essays which passed under
CH. 1.]
497
ORIGIN OF THE FEDERALISTS.
that name, namely, an advocacy of the Constitu-
tion of the United States.1
Midway between the active friends and opponents
1 The history of the term “ Fed-
eral,” or“ Federalist,” offers a eu-
rious 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 Con-
vention which framed the Constitu-
tion of the United States, the term
federal was employed in its truly
philosophic sense, to designate the
nature of the government estab-
lished by the Articles of Confeder-
‘ation, 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 enlarge-
ment of the Federal government
at the expense of some part of the
State sovereignties, and its oppo-
nents were called the Anti-Feder-
alists. In this use, the former term
in no way characterized the nature
of the system advocated, but merely
designated a supporter of the Con-
stitution. A few years later, when
the ﬁrst parties were formed, in the
ﬁrst term of Washington’s Admin-
istration, it so happened that the
leading men who gave a distinct
vo L. II. 63
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 al-
so been the case with some of those
who separated themselves from this
body of persons and formed what
was termed the Republican, after-
wards the Democratic party. But
the prominent supporters of the
policy which originated in Wash-
ington’s administration continued
to be called Federalists, and the
term thus came to denote a partic-
ular school of politics under the
Constitution, although it previously
signiﬁed merely an advocacy of
its adoption. Thus, for example,
Hamilton, in 17 8 7, was’ no Feder-
alist, because he was opposed to the
continuance of a federal, and de-
sired the establishment of a nation-
al 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 administra-
tion of the government, under the
Constitution. It was in this latter
sense that the term became so cel-
ebrated 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.
498 ADOPTION OF THE CONSTITUTION. [BOOK v.
of the Constitution lay that great and somewhat in-
ert mass of the people, which, in all free countries,
ﬁnally decides by its preponderance every seemingly
doubtful question of political changes. It was com-
posed of those who had no settled convictions or
favorite theories respecting the best form of a gen-
eral government, and who were under the inﬂuence
of no other motive than a desire for some system
that would relieve their industry from the oppres-
sions 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 re-
spective States were the safest depositaries of those.
principles and maxims, this portion of the people
of the United States were likely to be much inﬂu-
enced 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 Amend-
ments. But they had great conﬁdence in the
principal framers of the instrument, an unbounded
reverence for Washington and Franklin, and a will-
ingness to try any experiment sanctioned by men so
illustrious and so entirely incapable of any selﬁsh or
unworthy purpose.1 There were, however, consider-
1 A striking proof of the impor— newspapers of Philadelphia and
itance attached by the people to the New York, after the Constitution
opinions of Washington and Frank- appeared, whether those distin-
lin may be found in a controversy guished persons really approved
carried on for a. short time in the what they had signed.
CE. I] ACTION OF THE CONGRESS. 499
able numbers of the people, in the more remote dis-
tricts of several of the States, who had a very imper-
fect acquaintance, if they had any, with the details
of’ the proposed System, at the time when their leg-
islatures were called upon to provide for the assem-
bling of conventions; for we are not to Suppose that
what would now be the general and almost instan-
taneous 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 rat-
iﬁcation in the States where its ad’option‘was post-
poned 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.‘ 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
1 All but Maryland and Rhode Island.
500 ADOPTION OF THE CONSTITUTION. [BOOK v.'
should transmit it to their constituent legislatures
for their action. The old obj ection, that the Con-
gress could with propriety participate in no measure
designed to change the form of a government which
they were appointed to administer, having been an-
swered, 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 nnmber 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 add-
ing 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 Con-
gress, 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 dis-
similar instruments. This consideration induced
the Congress, by a unanimous vote of the States
present, to adopt a resolution which, while it con-
tained no approval of the Constitution, abstained
from interfering with it as it came from the Conven-
CE. I.] RECEPTION IN MASSACHUSETTS.
tion, and transmitted it to the State legislatures,
“in order to be submitted to a convention of dele-
gates chosen in each State by the‘ people thereof, in
conformity to the resolves of the Convention made
and provided in that case.” 1
In Massachusetts, the Constitution was well re-
ceived, 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 com-
mercial classes, the men of property, the clergy, the
members of the legal profession, including the judg-
es, the oﬂicers 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 inhabi-
tants of the district of Maine, who were then look-
ing forward to the formation of a new State, would
be likely to vote for the new Constitution, or to op-
pose 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 believ-
ing that the proposed Constitution would strengthen
1 Passed September 28, 1787. Journals, XII. 149-166.
'502 ADOPTION on THE CONSTITUTION. [BOOK v.
all the rights of property. Their numbers were es-
timated at two sevenths of the people.1t 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, con-
ciliation, and good temper were, therefore, required,
on the part of its friends. The inﬂuence of Massa-
chusetts 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 oﬂicial inﬂuence of the executive govern-
ment 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 par-
ty, 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 Lan-
sing, had retired from that body before the Consti-
tution was completed, and had announced their
1 This is the substance of a care- to General Washington. (Works
ful account given by General Knox of Washington, IX. 310, 311.)
CH. I.] RECEPTION IN NEw YORK 503
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 mer-
its, —— such a discussion as would cause it to be un-
derstood 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 oﬂicial
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 im-
proper for him to have any other agency in the busi-
ness than that of laying the papers before them for
their information. Neither he nor his party, how-
ever, contentedx themselves with this abstinence.
After a severe struggle, resolutions ordering a State
convention to be elected were passed by the bare ma-
jorities of three in the Senate and two in the House,
on the ﬁrst day of February, 17 88. 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 Con-
504 ADOPTION OF THE ooNsTITUTIoN. [BOOK v.
stitution. Backed by this large majority, the leaders
of the Anti-Federal party intended to meet in con-
vention at the appointed time, in June, and then to
adjourn until the spring or summer of 17 89. Their
argument for this course was, that, if the Constitu-
tion had been adopted in the course of a twelve-
month 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
F ederalists 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,1 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 ﬁ'eedom, although its
1 A town on the Hudson River, seventy-ﬁve miles north of the city of
New York.
(3H. -1.] RECEPTION IN VIRGINIA. 505
polity and manners were marked by several aristo-
cratic 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 licen-
tious 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 Con-
stitution 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 practi-
cally 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 Rev-
olution, Whose inﬂuence over popular assemblies was
enormous, and who added acuteness, subtilty, and
logic to the ﬁerce sincerity of his unstudied ha-
rangues, 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 op-
posed to the Constitution, while he was inferior in
voL. II. 64
506 ADOPTION OF THE CONSTITUTION. [BOOK v.
general powers and resources to not more than two
or three of those who framed or advocated it. Rich-
ard Henry Lee, William Grayson, Benjamin Harri-
son, John Tyler, and others of less note, were united
with Henry and Mason in opposing the Constitu-
tion. Its leading advocates were to be Madison,
Marshall, the future Chief Justice of the United
States, George Nicholas, and the Chancellor Pendle-
ton. 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 emi-
nently honorable and patriotic.
One of the most distinguished of the public men
of Virginia had been absent in the diplomatic ser-
vice 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. J eﬂ'erson’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,l 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.
1 He went abroad in the summer of 1784.
CH. 1.] JEFFERSON’S OPINIONS. 507
He was by far the most democratic, in the tendency
of his opinions, of all the principal American states-
men of that age. He was, according to his own
avowal, no friend to an energetic government any-
where. 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 Massa-
chusetts were necessary to public liberty, and that
the national Convention had been too much in-
ﬂuenced 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 with-
out those express and positive restraints which will
jealously guard the liberties of the people, even if
those liberties should periodically break into licen-
tiousness. .One of his favorite maxims of govern- '
ment was “ rotation in office ”; and he thought the
government of the Union should have cognizance
only of matters involved in the relations of the peo-
ple of each State to foreign countries, or to the peo-
ple 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.
508 ADOPTION OF THE cONsTITUTION. [BOOK v.
Hence it is not surprising that, when Mr. Jeffer-
son 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, free-
dom 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 mis-
take, 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, uncondition-
ally, and that the four remaining States should ac-
cept it‘ only on the previous condition that certain
amendments should be made. This plan of his be-
came known in Virginia in the course of the winter
of 17 87-88, 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 pur-
sued by Massachusetts, he changed his Opinion, and
authorized his friends to say that he regarded an‘ un-
conditional acceptance by each State, and subsequent
amendments, in the mode provided by the Constitu-
tion, as the only rational plan.1 He also abandoned
the opinion that the general government ought not
1 Compare Mr. J eﬁ‘erson’s auto- umes of his collected works (edi-
biography, and his correspondence, tion of 1853), and the letters of
in the ﬁrst, second, and third vol— Mr. Madison.
CH. 1.]
MASON AND HENRY.
to have the power of direct taxation; but he never
recededlfrom 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 oppo-
sition he anticipated, with a temperate but ﬁrm ex-
pression 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 legis-
lature. The former was expressly instructed by his
constituents of Alexandria countyll to vote for a sub-
mission of the Constitution to the people of the
State in convention; — a vote which he would prob-
ably. have given without instruction, as he declared
to General Washington that he should use all his
inﬂuence for this purpose. Mr. Henry was not in-
. Constitution.
‘ 1 In the newspapers of the time
there. is‘to be found a story that
Mr. ,Mason was very roughly re-
ceived on his arrival at the city of
Alexandria, after the adjournment
of the national Convention, on ac-
count of his refusal to sign the
The occurrence is
not alluded to in Washington’s
correspondence, although he close-
ly obsei‘ve‘d Mr. Mason’s move-
ments, and regarded them with ev-
ident anxiety. The story is told
in the Pennsylvania Journal of
October 17, 178 7',-—a strong Fed-
eral paper. I know of no other
conﬁrmation of it than the fact
that the people of Alexandria. em-
braced the Constitution from the
ﬁrst with “ enthusiastic warmth,”
according to the account given
by General Washington to one of
his correspondents. (Works, IX.
272.)
510 ADOPTION on THE CONSTITUTION. [BOOK v.
structed, and the friends of the Constitution expected
his resistance. The legislature assembled in Octo-
ber, and on the ﬁrst day of the session, in a very
full House, Henry declared, to the surprise of every-
body, 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 post-
poned their action was employed by the Anti-Fed-
eralists, 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 constitu-
ents. 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.1 The convention was to assemble on the
2d of June, 1788.
In the legislature of South Carolina the Constitu-
tion 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 Pinck-
neys, Pierce Butler, John and Edward Rutledge,
John Julius Pringle, Robert Barnwell, Dr. David
1 Washington’s Works, IX. 266, 267, 273, 340-342, 345, 346.
CH. 1.]
RECEPTION IN SOUTH CAROLINA.
Ramsay, and many other gentlemen. At length, On
the 19th of January, a resolution was passed, direct-
ing 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 minor-
ity was returned to the Convention having a strong
hostility to the proposed system.‘
The legislature of Maryland assembled in Decem-
ber, 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.
1 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 be resisted with great spirit, and
ﬁnally closed with the declaration
that he saw dangers in the pro-
.posed government so great, that he
could wish, when dead, for no
other epitaph than this: “ Here
lies the man that opposed the Con-
stitution, 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.
512 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
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 exceed-.
ingly able argument against the fundamental prin-
ciple 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 rep-
utation well justified — that his chance of obtain-
ing 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 appoint-
ment 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 my—
self to indigence and poverty; and those who are
dearer to me than my own existence, I would in-
on. 1.] LUTHER MARTIN. 513
trust 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 pro-
ducev an effect. , No document that appeared any-
where, 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 ques-
tion 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.1
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 represent-
1 Mr. Martin’s objections ex- its system of representation, which
tended to many of the details of he predicted would destroy the
the Constitution, but his great ar- State governments.
gument was that directed against
voL. II. 65
514 ADOPTION on THE CONSTITUTION. [BOOK v.
ative system proposed in the Constitution was the
only one that could be agreed upon as the alterna-
tive. 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 assem-
ble in February. A large portion of the State lay
remote from the channels of intelligence, and a con-
siderable 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 coun-
try, 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 assem-
bled, 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
Cu. 1.] GENERAL ASPECTS. 515
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 Mas-
sachusetts commenced, in January, 1788, the peo-
ple of the ﬁve States of Delaware, Pennsylvania,
New Jersey, Georgia, and Connecticut had succes-
sively ratiﬁed the Constitution without proposing
any amendments, and because the action of the oth-
ers, 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 sub-
sequent amendments, it is certain that some of the
same topics were the causes of anxiety and objection
in those States, which occasioned so much diﬁiculty,
and became the grounds of special action, in the re-
maining States.
In coming, however, to the more particular descrip-
tion of the resistance which the Constitution encoun-
tered, 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 posi-
tive objections to the Constitution, it may be said,
516 ADOPTION OF THE CONSTITUTION. [BOOK v.
in general, that, however fruitful of debate, or decla-
mation, 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 inter-
ested 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 insuﬂicien-
cy 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.”1 But while the
Constitution came before the people with this con-
viction 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 estab-
lish a government of great power, without providing
for rights of primary importance, and without any
declaration of the cardinal maxirns of liberty which
the people had from the ﬁrst been accustomed to in-
corporate with their State constitutions; and while
the local interests, the sectional feelings, and the sep-
arate policy, real or supposed, of different States, fur-
nished such a variety of means for defeating its adop-
tion by the necessary number of nine States; —we
1 Hamilton, Works, II. 419, 420.
CH. 1.] UNCERTAINTY OF THE RESULT.
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 incalcula-
ble ﬂuctuations of the human passions, to attempt
even a conjecture about the result.” 1
1 Hamilton, \Vorks, II. 421.
CHAPTER II.
RATIFIcATIoNs OF DELAWARE, PENNSYLVANIA, NEW JERSEY,
GEORGIA, AND CoNNEcTIcUT, WITHOUT OBJEcTIoN. — (how on
THE YEAR 1787.——BEGINNING OF THE YEAR 1788.-RATIFI-
cATIoN OF MAssAoHUsETTs, THE sIxTH STATE, wITH PROPOSI-
TIoNs 0F AMENDMENT. -RATIEIcATIoN 0F MARYLAND, WITH-
OUT OBJECTION—SOUTH CAROLINA, THE EIGHTH STATE, ADOPTS,
AND PROPOSES AMENDMENTs.
THE ﬁrst State that ratiﬁed the Constitution, al-
though 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 Con-
vention 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
on. 11.] ,- PENNSYLVANIA. 519
fail to regard. Their delegates unanimously rati-
ﬁed and adopted the Constitution 011 the 7th of De-
cember.
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 coun-
try. There had sat, eleven years before, that illus-
trious Congress of deputies from the thirteen Colo-
nies, 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 Revolution-
ary Congress had continued, with a short interrup-
tion, to directrthe 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 proces-
sion to one of the churches of the city, to return
thanks to God for a victory which in effect ter-
minated 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 oc-
casional intervals, the people of Philadelphia had
520 ADOPTION OF THE CONSTITUTION. [BOOK v.
been accustomed to the presence of the most emi-
nent 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 ca-
reer,1 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 ex-
pect 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 ben-
efactors. 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 adopt-
ed, 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 constitu-
tion‘al analysis; but in the comprehensiveness of his
1 See an account of him, ante, Vol. 1. Book III. Chap. XIV.
on. 11.] JAMES wILsoN. 521
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 in-
formed 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 oppo-
sition. 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 impor-
tant 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 his-
torical knowledge was extensive and accurate. N 0
man succeeded better than he did, in his arguments
on that occasion, in combating the theory that a
State government possessed the whole political sov-
ereignty of the people of the,‘ State. " However true
it might ‘be, he ‘said, in England, that the Parlia-
ment po’ssesses supreme and absolute power, and
‘can make the constitution what it pleases, in Amer-
ica it has been incontrovertible since the Revolu-
vor.. 11. 66
5 . ADOPTION OF THE CONSTITUTION. [BOOK V.
tion, that the supreme, absolute, and uncontrollable
power is in the people, before they make a consti-
tution, 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 Con-
stitution 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 re-
served by the people, must either be a perfect or an
imperfect statement of the powers and privileges re-
served. To undertake a perfect enumeration of the
civil rights of mankind, is to undertake a very diﬂi-
cultand hazardous, and perhaps an impossible task;
yet if the enumeration is imperfect, all implied power
seems to be thrown into the hands of the govern-
ment, 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
on. 11.] THOMAS MoKEAN. 523
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, accord-
ing to his recollection, for the insertion of a bill‘of
rights.1 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 contend-
ing, 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 ex-
amination 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 inter-
ests 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
1 This was a mistake. On the to prepare a bill of rights, but the
12th of September, Messrs. Gerry motion was lost by an equal divis-
and Mason moved for a committee ion of the States. Elliot, V. 538.
524 ADOPTION OF THE CONSTITUTION. [BOOK v.
the United States.1 “ 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 de-
clare, that, from a full examination and due consid-
eration 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 Constitu-
tion. The official ratiﬁcation sent to Congress was
signed by a very large majority of the delegates, and
contains no notice of any dissent.2 But the repre-
sentatives 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.3
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 au-
1 Mr. McKean, although his res-
idence was at Philadelphia, repre-
gress and President of the State of
Delaware.
sented the lower counties of Dela-
ware in Congress from 1774 to
1783. In 1777 he was made Chief
Justice of Pennsylvania, being at
the same time a member of Con—
9 The Constitution was ratiﬁed
by a vote of 46 to 23.
3 This was at a meeting held at
Harrisburg, September 3d, 1 788.
on. 11.] NEW JERSEY.
525
tumn, on his way to the Congress, then sitting in
the city of New York, and could discover no evi-
dence of serious opposition to the Constitution.
Lying between the States of New York and Penn-
sylvania, 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.1 But the people of
New Jersey had, in truth, fairly considered the
whole matter, and had found what their own inter-
ests required. They alone, of all the States, when
the national Convention was instituted, had express-
ly declared that the regulation of commerce ought
to be vested in the general government. They had
learned that to submit longer to the diverse commer-
cial 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
1 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 “ Feder-
alists,” 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 Newv Jersey
was regarded in the neighboring
States, and it is certain that the
opposition in New York made
great efforts to inﬂuence it.
526 ADOPTION or THE coNsTITUTIoN. [BOOK v.
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 unani-
mously ratiﬁed the Constitution on the 12th of
December, ﬁve days after the ratiﬁcation of Penn-
sylvania. '
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 Yorkand Philadelphia, and through-
out 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 west-
ern settlements; and having her southern frontier "
bordering upon the unfriendly territory of a Span-
C11. 11.] cormncrrcur.
557
ish colony, —the State of Georgia had strong mo-
tives to lead her to embrace the Constitution of
the United States, and found little in that instru-
ment calculated to draw her in the opposite direc-
tion. Her delegates had resisted the surrender of
control over the slave-trade, but they had acqui-
esced 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 dissat-
isfaction 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.1 Their assent was unanimous-
ly given to the Constitution on the 2d of January,
1788.
The legislature of Connecticut had ordered a con-
vention 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;
1 The situation of Georgia was
brought to the notice of Washing-
ton immediately after his ﬁrst in-
auguration as President of the
United States, in an Address pre-
sented 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 admin-
istration.
528 ADOPTION OF THE CoNsTITUTIoN. [BOOK v.
but there was to be some opposition, proceeding
principally from that portion of the people who re-
sisted whatever tended to the vigor and stability of
government, —a spirit that existed to some extent
in all the New England States. When the conven-
tion 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 qual-
iﬁed to explain and defend the proposed revenue sys-
tem. -While he contended for the necessity of giv-
ing 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 demonstrat-
ed 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 taxa-
tion 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.1 Under
1 He stated the annual expen- debt, at £ 260,000 (currency), and
diture of the government, includ- then showed that, in the three
ing the interest on the foreign States of Massachusetts, New York,
on. 11.] CLOSE OF THE YEAR 1787. 529
his inﬂuence and that of Oliver Wolcott, Richard
Law, and Governor Huntington, the Constitution
was ratiﬁed by a large majority, on the 9th of Jan-
uary.1
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 overconie 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 formida-
ble 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 Hamp- -
shire, Maryland, and North and South Carolina. The
inﬂuence of each accession to the Constitution on
the remaining States might be expected to be con-
siderable; 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 Constitu-
and Pennsylvania, £ 160,000 or in the convention of Connecticut
.6 180,000 per annum had been are known tobe preserved. They
raised by impost. may be found in the second vol-
1 Fragments only of the debates ume of Elliot’s collection.
voL. II. 67
530 ADOPTION on THE coNsTITUTIoN. [Boox v.
tion. 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 in-
ﬂuence of such an example, which would probably
operate with a constantly accelerating force through-
out 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 exam-
ples 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 un-
~steadiness and vacillation of which her former rep-
utation 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 Con-
»gress had [granted half-pay for life to the officers of
the Revolutionary army. In May, 1785, the legisla-
ture ‘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 oc-
C11. 11.] MASSACHUSETTS. 531
currences, 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 diffi-
cult, 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, —- dis-
cussions in which the natural rights of mankind
and the civil rights of British subjects were exam-
ined 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 lib-
erty has ever been invested. Not content to trust ob-
vious 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
532 ADOPTION OF THE CONSTITUTION. [BOOK v.
Westminster. It may be that an anxious student
of politics, examining the early constitution of Mas-
sachusetts, —— happily in its most important features
yet unchanged, -— would pronounce it unnecessa-
rily 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 level-
ling tendencies of a levelling age, and has withstood
them because, while it carefully guarded the liber-
ties of the people, it secured those liberties by insti-
tutions which stand as bulwarks between the power
of the many and the rights of the few.
It may hereafter become necessary for me to con-
sider 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 es-
sential 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
on. 11.] MASSACHUSETTS. 583
was a majority originally opposed to the Constitu-
tion; and if a vote had been taken at any time be-
fore 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 object-
ed to it from principle. The anticipated leader of
this miscellaneous host was that celebrated and ar-
dent patriot of the Revolution, Samuel Adams. With
all his energy and his iron determination of charac-
ter, 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 meet-
ing of the convention he had maintained a good deal
of reserve. But it was known that he disapproved
ofit
534 ADOPTION OF THE CONSTITUTION. [BOOK v.
This remarkable man -— often called the Ameri-
can 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 strug-
gle 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 ex-
treme devotion to the maxims and principles of pop-
ular 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 commen-
surate 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 oﬂicers 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.l But some
1 Three of them, Widgery, Thompson, and Nason, were from Maine;
CH, 11.] MASSACHUSETTS.
of the elements of which that opposition was com-
posed 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 he
answered, and many of them could be, and were,
convinced. But with respect to what they consid-
ered the defects of the Constitution, theoretical rea-
soning, 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 disturb-
ances 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
there was a Dr. Taylor from the These gentlemen carried on the
county of Worcester, and a Mr. greater part of the discussion
Bishop from the county of Bristol. against the Constitution.
536 ADOPTION OF THE CoNsTITUTIoN. [BOOK v.
been, for her intelligence, —- still she wore a name
of more than ordinary consideration among her sis-
ters of the Confederacy. If it should go forth to
New York, to Virginia, to the Carolinas, that Mas-
sachusetts 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 conven-
tion of Massachusetts, was much divided on the
question of submitting the Constitution to a conven-
tion, and it was the opinion of careful observers that
the result in either way in the latter State would in-
volve 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 Massachu-
setts.
Its proceedings commenced with a desultory de-
bate 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.
on. 11.] MASSACHUSETTS. 537
The discussion of the various objections having been
exhausted, Parsons 1 moved that the instrument be
assented to and ratiﬁed. One or two general speech-
es 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 be-
tween 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 oﬂicial station and his personal eminence, and
partly because he held a rather neutral position
with respect to the Constitution. These circum-
stances, as well as his Revolutionary distinction, led
the friends of the Constitution to seek his inter-
vention; and his love of popularity and deference
made the ofﬁce of arbitrator exceedingly agreeable
to him. The selection was a wise one, for Han-
cock had great inﬂuence with the classes of men
composing the opposition, and he could not be sus-
pected 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 re-
marks with which he presented his amendments,
whether he intended they should become a condition
1 Theophilus Parsons, afterwards the celebrated Chief Justice of
Massachusetts.
von. 11. 68
538 ADOPTION 0E THE CONSTITUTION. [BOOK v.
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 ap-
prehensions 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 Constitu-
tion, and the amendments followed it, with a rec-
ommendation that they “ be introduced into the said
Constitution.” Samuel Adams, with much commen-
dation of the Governor’s proposition, immediately
affected to understand it as recommending con-
ditional 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 amend-
ments, and that there could be no probability that,
if recommended to the attention of the ﬁrst Con-
gress 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,1
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
1 Yeas, 187; nays, 168.
CH. 11.] MASSACHUSETTS. 539
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, ex-
pressed 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 por-
tions of the people whose sentiments they had rep-
resented 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 char-
acter; but they were at the same time highly char-
acteristic 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,
540 ADOPTION OF THE CoNsTITUTIoN. [BOOK v.
With respect to elections, direct taxes, the commer-
cial 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 present-
ment by a grand jury, for crimes by which an infa-
mous 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 strong-
ly 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
Fancuil Hall an imposing procession of ﬁve thou-
sand citizens, embracing all the trades of the town
and its neighborhood, each with its appropriate dec-
orations, 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 home the ship Fed-
eral Constitution, with full colors ﬂying, and attend-
ed by the merchants, captains, and seamen of the
port.1 On the following day, the rejoicings were
terminated by a public banquet, at which each of
the States that had then adopted the Constitution
1 This was the ﬁrst of a series of the Union, in honor of the rati-
of similar pageants, which took ﬁcation of the Constitution.
place in the other principal cities
on. 11.] NEW HAMPSHIRE.
541
was separately toasted, the minorities of Connecti-
cut 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 coun-
try, 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 Massa-
chusetts was adjourned, although there was a ma-
jority who, either bound by instructions or led by
their own opinions, would have rejected the Consti-
tution 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 Massa-
chusetts. 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.ll The discussions
1 The form of ratiﬁcation and the
amendments introduced by Han-
cock into the convention of Massa-
chusetts were drawn by Theophilus
Parsons. They were probably com-
municated to General Sullivan, the
President of the New Hampshire
convention, by his brother, James
Sullivan, an eminent lawyer of Bos-
ton, afterwards Governor of Massa-
chusetts. The reader should com-
pare the Massachusetts amendments
with those of the other States whose
action followed that of Massachu-
setts, for the purpose of seeing the
inﬂuence which they exerted. (All
542 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
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 oppor-
tunity to lay before their constituents the informa-
tion 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 occur-
rence of a general election in New Hampshire made
it necessary to adjourn the convention until the mid-
dle of June. We have seen what was the effect of
this proceeding in Virginia, where it was both mis-
understood and misrepresented. But it saved the
Constitution in New Hampshire.
Six States only, therefore, had adopted the Con-
stitution at the opening of the spring of 1788. The
convention of Maryland assembled at Annapolis on
the 21st of April. The convention of South Caro-
lina 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 Mary-
land 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,
the amendments may be found in post, Chap. 111., as to the effect of
the Journals of the Old Congress, the course of Massachusetts on the 1
Vol. XIIL, Appendix.) See also mind of Jefferson.
Ca. 11.] MARYLAND. 543
its fate would turn on the determination of Vir-
ginia.
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 misinter-
preted, or its inﬂuence lost, gave great dissatisfaction
to the minority. Their efforts to introduce amend-
ments were disposed of quite summarily. The ma-
jority 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, iﬁ 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.1 The next day a packet sailed from
the port of Baltimore for Charleston, carrying ‘the
news of the ratiﬁcation by Maryland.2 In how many
1 This little vessel sailed from ﬁne specimen of the then state of
Baltimore on the 1st of June, and the mechanic arts. See an ac—
arrived at Mount Vernon, “ com- count of it in Vvashington’s Works,
pletely rigged and highly orna- IX. 375, 376.
mented,” on the 8th. It was a 2 There was then no land com-
544 ADOPTION OF THE CONSTITUTION.
[BOOK V.
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 @arolina 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
Carolina, was more than four weeks
on its way to Mount Vernon.
(Washington’s Works, IX. 389.)
munication between the two places,
that could have carried intelligence
in less than a month. A letter writ_
ten by General Pinckney to Gener-
al Washington on the 24th of May,
announcing the result in South
General Washington had received
the same news by way of Baltimore
soon after its arrival there.
on. 11.] SOUTH CAROLINA. 545
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 Caro-
lina consider the provisions made for their peculiar
demands as equivalents for what had been surren-
deredl 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 Caro-
lina, at the time of their adoption of the Constitu-
tion, 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 legisla-
ture 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 with-
in the several States, and that it had secured a right
which did not previously exist, of recovering those
VOL. II. 69
546 ADOPTION OF THE CONSTITUTION. [BOOK v.
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 repre-
sentation 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 mani-
festly considered.
But there was one part of the arrangements in-
cluded 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 com-
merce 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 pro-
ducts 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 fur-
CH. 11.] SOUTH CAROLINA. 547
nish 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 ap-
pear 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 inﬂu-
ence in the subsequent convention, that the attention
of the people of South Carolina was not conﬁned to
the particular terms and arrangements of the com-
promises which took place in the formation of the
Constitution. They looked to the propriety, expe-
diency, and justice of a general power to regulate
commerce, apart from the compromise in which it
was involved. ‘ They admitted the commercial dis-
tresses 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 sac-
riﬁce, be it more or less, as was involved in the sur-
548 ADOPTION OF THE CoNsTITUTIoN. [BOOK v.
render to a majority in Congress of the power to
regulate commerce.1
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 Consti-
tution by Virginia. This motion probably stimulat-
ed 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 consid-
eration, three of which were substantially the same
with three of those proposed by Massachusetts.2
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 0
had been in the processions of other cities.
1 See the course of argument of 2 See the Amendments, Journals
Edward Rutledge, General Pinck- of the Old Congress, Vol. XIIL,
ney, Robert Barnwell, Commodore Appendix.
Gillon, and others, as given in El-
liot, IV. 253 -316.
CHAPTER III.
RAT1F1cA'r1oNs on NEW HAMPSHIRE, VIRGINIA, AND NEW YORK,
WITH PRoPosED AMENDMENTs.
SoUTH CARoLrNA was the eighth State that had
ratiﬁed the Constitution, and one other only was re-
quired for its inauguration. In this posture of af-
fairs 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 questiol
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 ad-
journed to the 18th of the same month. The latter
assembly was to meet at Concord, from which
place intelligence would reach the Middle and South-
ern 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 Phil-
adelphia. The distance from Concord to Pough-
550 ADOPTION OF THE CONSTITUTION. [BOOK v.
keep/sie, through Boston, Springﬁeld, and Hudson,
was about two hundred and ﬁfty miles. The dis-
tance from Poughkeepsie to Richmond, through the
cities of New York, Philadelphia, and Baltimore,
was about four hundred and ﬁfty miles. The pub-
lic 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
Hruggle in both of them, and it was extremely im-
portant 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 un-
der other circumstances, if, before the conventions of
New York and Virginia had decided, it should ap- .
pear that nine States had ratiﬁed the Constitution,
the course of those bodies might be materially inﬂu-
enced by a fact of so much consequence to the fu-
ture 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
on. 111.] VIRGINIA. 551
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 ar-
rangement 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 condi-
tions precedent to the adoption. So far, therefore,
as the voice of any State had pronounced the Con-
stitution defective, or dangerous to any general or
particular interest, the mode of amendment provided
by it, to be employed after it had gone into opera-
tion, had been relied upon as sufﬁcient and safe.
The opposition in Virginia were consequently re-
duced to this dilemma; — they must either take the
responsibility of rejecting the Constitution entirely,
or they must assume the equally hazardous respon-
sibility of insisting that the ratiﬁcation of the State
should be given only upon the condition of previous
552 ADOPTION OF THE CONSTITUTION. [BOOK v.
amendments. They were prepared to do both, or
either, according to the prospects of success ; for
their convictions were ﬁxed against the system pro-
posed; their abilities, patriotism, courage, and per-
sonal inﬂuence were of a high Order; and their devo-
tion 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 suf-
fered no abatement since the period when he blazed
into the darkened skies of the Revolution, —- when
his untutored eloquence electriﬁed the heart of Vir-
ginia, and became, as has been well said, even “ a
cause of the national independence.” 1 He had held
the highest honors of the State, but had retired, poor,
arll worn down by twenty years of public service, to
rescue his private affairs by the practice of a profes-
sion 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
1 Notice of Henry, in the Na- ater than that of any man he
tional Portrait Gallery of Distin- h (1 ever heard, and that Henry
guished Americans, Vol. 11. Mr. “ appeared to speak as Homer
Jefferson has said that Henry’s wrote.” (J efferson’s Works, I.
power as a popular orator was 4,)
on. 111.] VIRGINIA. 553
which Nature, and Nature alone, had bestowed up-
,on 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 audi-
tory might lead the sober reﬂections of men astray.
He was at this time ﬁfty-two years of age. Al-
though 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 conven-
tion 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 be 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
von. 11. 70
554 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
any powerful system of general government, —— ca-
pable of accomplishing in peace all that it had un-
questionably effected for the country in war. As
he passed out of the troubles and triumphs of the
Revolution into the calmer atmosphere of the Con-
federation, 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 gov-
ernment, 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 depart-
ure 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
’CH. n1] VIRGINIA. 555
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 dif-
ferent parts of the country. He denied altogether
the existence of any necessity for exposing the pub-
lic peace to such a hazard.
As soon as Henry had sat down, the Governor,
Edmund Randolph, rose, to place himself in a posi-
tion 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, ex-
culpatory letter to the Speaker of the House of Del-
egates, giving his reasons for this refusal; which
were, in substance, that he considered the Constitu-
tion required important amendments, and that, as it
would go to the conventions of the States to be ac-
cepted or rejected as a whole, without power to
556 ADOPTION OF THE CONSTITUTION. [BOOK v..
amend, he thought that his signature would pre-
clude him from proposing the changes and additions
which he deemed essential. This letter had attract-
ed much attention both in and out of Virginia, and
Randolph was consequently, up to this moment, re-
garded as a ﬁrm opponent of the Constitution. He
.chose, however, to incur the charge of that kind of
inconsistency which a statesman should never hesi-
tate to commit, when he ﬁnds that the public good
is no longer consistent with his adherence to a for-
mer 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 Constitu-
tion 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 un-
conditional adoption of the Constitution, looking
to future amendments, although he had little expec-
tation that they would be made.
This announcement took the opposition by sur-
prise. 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.
on. 111.] VIRGINIA. 557
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 char-
acter of the proposed government Mr. Mason de-
duced from the power of direct taxation, which, he
contended, entirely changed the confederacy into one
consolidated government. This power, being at dis-
cretion and unrestrained, must carry everything be-
fore 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 gen-
eral 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
558 ADOPTION or THE coNsTITUTIoN. [BOOK v.
that the Constitution presented a consolidated gov-
ernment, 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 retain-
ing 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 radi-
cal 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 inse-
cure, 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 be-
come 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 recol-
lection of what he had done and suffered for the lib-
erties of his country, he broke forth in one of his
most indignant and impassioned moods.l
Madison, always cool, clear, and sensible, answered
1 It is said in the newspapers of from which I have made the ab-
that period that Henry was on his stract in the text. But he made a
legs in one speech for seven hours. great many speeches, quite as ear-
I think it must have been the one nest.
on. 111.] VIRGINIA. 559
these objections. He described the new government
as having a mixed character. It would be in some
respects federal, in others consolidated. The man-
ner 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 sover-
eignties. If it were a purely consolidated govern-
ment, the assent of a majority of the people would
be suﬂicient to establish it. But it was to be bind-
ing on the’ people of a State only by their own sepa-
rate 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 ma-
jority of the States could not introduce amendments,
nor yet were all the States required; three fourths
of them must concur in alterations; and this consti-
tuted 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 ea-
pacities. Had the government been completely con-
solidated, 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
560 ADOPTION OF THE CoNsTITUTIoN. [BOOK V.
same way as the Senate' Thus it was of a complex
nature; and this complexity would be found to” ex-
clude 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 pow-
ers 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 con-
ferred 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 inde-
pendent 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.
CH. 111.]
561
VIRGINIA.
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.1
At length, ﬁnding him-
self 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.
coincide entirely with ours.
services done for, this country are well known.
His sentiments
His attachment to, and
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 mawims.
Let us follow
1 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 parlia-
v01.. 11. 71
mentary tactician. The manner
in which he carried on the opposi-
tion to the Constitution in the con-
vention of Virginia, for nearly a
whole month, shows that he pos-
sessed other powers besides those
of great natural eloquence.
562 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
the sage advice of this common friend of our hap-
piness.” 1
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 Constitu-
tion, and the remaining four might refuse it, until a
Declaration of Rights had been annexed to it.2 Mr.
Henry chose to construe this into an advice to WT-
ginia to reject the Constitution. But this use of
Mr. J efferson’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 Vir-
ginia, in which Mr. Henry was then speaking. The
1 Elliot, III. 152, Debates in the
Virginia Convention.
2 Under date of February 7,
1788, Mr. Jefferson wrote ﬁ'om
Paris, in a private letter to a gen-
tleman 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, free-
dom of the press, freedom of com-
merce against monopolies, trial by
juries in all cases, no suspensions of
the habeas corpus, no standing ar-
mies. These are fetters against
doing evil, which no honest gov-
ernment 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
on. 111.] VIRGINIA.
563
friends of the Constitution, therefore, became some-
what restive under this attempt to employ the inﬂu-
ence 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 intro-
ducing 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 ;1 and they then
contended that Mr. J eﬂ'erson’s letter did not admit
of the application that had been given to it.” But
the truth was, that the assertions of his opponents
respecting New Hampshire, and the ambiguous form
of Mr. J eﬂ'erson’s opinion, gave Henry all the oppor-
tunity he wanted to employ that opinion for the
purpose for which he introduced it. “You say,”
said he, “that you are
absolutely certain New
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 govern-
ment 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.” (J eﬂ‘erson’s Works, II.
355.) That Mr. Jefferson intend-
ed 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 intend-
ed his suggestions should be known.
His subsequent opinion will be
found in a note below.
1 Alluding, evidently, to Wash-
ington.
2 See the speeches of Pendleton
and Madison, in reply to Henry.
Elliot, H1. 304, 329.
564 ADOPTION OF THE CoNsTITUTIoN.
[BOOK V.
Hampshire will adopt this government. Then she
will be the ninth State; and if Mr. J efferson’s advice
is of any value, and this system requires amend-
ments, we, who are to be one of the four remaining
States, ought to reject it until amendments are ob-
tained.” 1
Notwithstanding the efforts of Madison to coun-
teract this artiﬁce, it gave the opposition great
strength, because it enabled them to throw the whole
weight of their arguments against the alleged de-
fects and dangers of the Constitution into the scale
of an absolute rejection. Mr. J efferson’s subse-
quent opinion, formed after he had received intelli-
gence 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.2
The opposition went on, therefore, with renewed
vigor, to attack the Constitution in every part which
they considered vulnerable.
1 Elliot, III. 314.
9 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 con-
fess it has on my own. At ﬁrst,
though I saw that the great mass
and groundwork was good, I dis-
liked 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 prefer-
able, 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.)
on. 111.] VIRGINIA. 555
Among the topics on which they expended a great
deal of force was that of the navigation of the Mis-
sissippi. They employed this subject for the pur-
pose of inﬂuencing the votes of members who rep-
resented 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.1 They then
made use of the following argument. It had ap-
peared, they said, from those transactions, that the
Northern and Middle States, seven in number,2 were
in favor of bartering away this great interest for
commercial privileges and advantages; that those
States, particularly the Eastern ones, would be in-
ﬂuenced further by a desire to supress the growth
of new States in the Western country, and to pre-
vent 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,3
whereas, under the Confederation, it never could
be done without the votes of nine States in Con-
gress.
1 See an account of this matter,
ante, Vol. I. Book III. Chap. V.
pp. 309—327.
2 They meant the four New
England States and New York,
Pennsylvania, and Maryland. New
Jersey and Delaware were sup-
posed to be with the four Southern
States on this question.
3 Ten would be two thirds of
the constitutional quorum of four-
teen; so that the argument sup-
posed only a quorum to be pres-
ent.
566 ADOPTION on THE coNsTITUTIoN. [BOOK v.
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 Mid-
dle 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.1
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.2 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 Constitu-
tion for protecting the national right to the Missis-
sippi, with those afforded by the Confederation, —-
1 See Mr. Madison’s explanation 9 Ante, Book III. Chap. V.,
in the convention of Virginia. El- Vol. I. pp. 324- 327.
liot, III. 346.
on. 111.] VIRGINIA. 567
assuming that any State or States might wish to sur-
render 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 es-
timated 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 South-
ern States; for if the carrying trade were their nat-
ural province, it must depend mainly on agriculture
for its support, and agriculture was to be the great
employment of the Western country. But in addi-
tion to this security of local interest, the Constitu-
tion 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 con-
cur. In the House of Representatives, the landed,
rather than the commercial interest, would predom-
inate; and the House of Representatives, although
not to be directly concerned in the making of trea-
ties, would have an important inﬂuence in the gov-
ernment. A weak system had produced the project
of surrendering the Mississippi; a strong one would
remove the inducement.1
1 Debates in the Virginia Convention, Elliot, III. 344 - 347.
568 ADOPTION OF THE CONSTITUTION. [BOOK v.
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-
F ederalists 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 de-
cision of Virginia until after the meeting of the con-
vention 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 Rich-
mond that the chances of obtaining a vote for pre-
vious 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]l
But we must now leave the convention of Vir-
ginia, 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
1 He thought at this moment Kentucky were then generally hos-
that, if the Constitution should be tile. (See a letter from Madison
lost, the Mississippi question would to Hamilton, of June 16th, Ham-
be the cause. The members from ilton’s Works, I. 45 7.)
on. 111.] NEW YORK. ‘ 569
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, — some-
times turning to the South and listening for the
footfall of his couriers from Virginia; —-but always
preparing to meet difficulties, always ready to con-
test 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 in-
tersection he stood to collect the momentous intelli-
gence 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 hav-
ing 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,
von. 11. 72
570 ADOPTION OF THE coNsTITUTIoN. [BOOK v.
involved in what‘might happen’within any hour of
those few eventful days. The rejection of the Con-
stitution 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, al-
ready conceived the hope that its early administra-
tion might be undertaken by Washington; and with
the government in the hands of Washington, Ham-
ilton 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 in-
capable, 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 im-
portance to all America, through all time, of Hamil-
on. In] NEW__YORK. 571
ton’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 aﬂ'ord 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 op-
ponents of the Constitution in that State; he had
encountered obloquy and misrepresentation and ran-
cor, — 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 them-
selves to measures that retarded the growth of a na-
tional spirit and an efficient general government.
The correctness of his judgment was now, therefore,
openly and palpably in the issue. His public pol-
icy, 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 de-
termined that New York should not become a mem-
ber of the new Union, whatever might be done by
the other States.‘ He had also received information,
1 See his correspondence with Madison, Works, I. pp. 450 -469.
572 ADOPTION OF THE CONSTITUTION. [BOOK v.
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 ten-
dency of the arguments made use of by the opposi-
tion, 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 Confedera-
tion, if amended, would be suﬂicient 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 com-
ply with a requisition.
Hamilton answered this suggestion with great
energy. It is inseparable, he said, from the dispo-
sition 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 requi-
sitions. 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 uni-
formly weighed the requisitions by their own local
interests, and had only executed them so far as an-
CH. 111.] NEW YORK. 5'73
swered 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 pro-
jects 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 sup-
port. There could be no cure for this great evil,
but to enable the national laws to operate on indi-
viduals, 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 assem-
bly organized upon principles so defective,—— giv-
ing 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 ani-
mated discussion on the system of representation
proposed in the Constitution, and while an amend-
me‘nt 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 ear-
nestly all wish to bring about a dissolution of the
Union, or to prevent the establishment of some ﬁrm
5'74 ADOPTION on THE CONSTITUTION. [BOOK v.
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 dis-
solution of the Union only by a deduction from the
tendency of their reasoning. But now that the Con-
stitution 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 determi-
nation to institute a new government. Accordingly,
on the next day, Chancellor Livingston formally an-
nounced 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,
C11. 111.] new YORK. 575
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 lib-
erty, under a fear of the situation in which it might
be placed.
Here, then, the reader should pause for a mo-
ment, 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 other-
wise.” 1 At the same time, we know that his latest
news from Virginia was not encouraging.2
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 trans-
ferred himself to what was then the larger communi-
ty, the great State of Pennsylvania, or to any of the
other States which had adopted the Constitution!
1 Works, I. 46 2. had then received from Madison.
2 See the latest letter which he Ibid. 461.
57 6 ADOPTION on THE coNsTITUTIoN. [BOOK v.
He must have been received anywhere with the con-
sideration 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 oﬁice 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 ca-
reer 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 confedera-
cies would have presented fresh ﬁelds for exertion
and personal energy, new excitements and new ad-
ventures. It is, too, a mournfully interesting reﬂec-
tion, 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 destruc-
tion, and who gained by it the execrable distinction
on. 111.] NEW YORK. 577
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 tempta-
tion. From his ﬁrst entrance, in boyhood, into pub-
lic 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 theo-
ries involved in the Constitution, no peculiar experi-
ments that he wished to try. He embraced it, be-
cause 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, with-
out 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 per-
petual 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 as-
von. 11. 73
578 ADOPTION on THE CONSTITUTION. [BOOK v.
sociated 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 fol-
low 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 im-
mediately 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 con-
vention of Virginia had, in fact, ratiﬁed the Consti-
tution 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 con-
vention 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.1
1 It has been supposed that this messenger arrived at Richmond
was not so, but that Hamilton’s before the ﬁnal action of the Vir-
Ca. 111.] .VIRGIMA- 579
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 de-
feating 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 sub-
ject had been exhausted, the friends of the Constitu-
tion presented the propositions on which they were
willing to rest the action of the State, and which
declared, in substance, that the powers granted un-
der the proposed Constitution are 'the gift of the
people, and that every power not granted thereby re-
mains with them, and at their will, - consequently
ginia convention, and so that the Hampshire until the 31st. (Ham-
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
ilton’s Works, I. 463.) The ratiﬁ-
cation passed the Virginia conven-
tion 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 speak-
ers, Mr. Innes, on the day of their
ratiﬁcation, that the Constitution
then stood adopted by eight States.
(Elliot, HI. 636.)
580 ADOPTION on THE coNsTITUTIoN. [BOOK v.
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 consider-
ation of the ﬁrst Congress that should assemble un-
der 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 relig-
ious 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 pre-
vious 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 consequen-
ces of suspending the inauguration of the new gov-
ernment until the other States could consider the
amendments desired by Virginia, that they procured
on. 111.] VIRGINIA 581
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.1
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 mi-
nority,” he said, “ I shall have those painful sensa-
tions which arise from a' conviction of being over-
powered 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 Revolu-
tion is not yet gone, nor the cause of those who are
attached to the Revolution yet lost. I shall, there-
fore, patiently wait in expectation of seeing this gov-
ernment so changed as to be compatible with the
safety, liberty, and happiness of the people.”2 This
1 The form of ratiﬁcation em-
braced the recitals given in the
text respecting the powers of Con-
gress. It was adopted by a vote
of 89 to 79, on the 25th of June,
1 7 88. I do not go into the partic-
ular consideration f‘tlre amend-
ments proposed by everal of the
State conventions, b ause the pres-
ent work is conﬁned to the origin,
the formation, and t e adoption of
the Constitution, and} no State that
ratiﬁed the instrument proposed
by the national Convention made
amendments a condition. The ex-
amination of the amendments pro-
posed, therefore, belongs to the his-
tory 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.
2 Debates in Virginia Conven—
tion, Elliot, III. 652.
582 ADOPTION on THE coNsTITUTIoN [BOOK v.
noble and disinterested patriot lived to ﬁnd the Con-
stitution all that he wished it to be, and to enroll
himself, in the day of its ﬁrst serious tri'al, 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.1
The ratiﬁcation of Virginia took place on the 25th
of June; the news of this event was received and pub-
lished in Philadelphia on the 2d of July. The press
of the city was at once ﬁlled with rej oicings 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 en-
thusiasm. 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 num-
1 Madison's letters to Hamilton, Works of Hamilton, I. 46 2, 463.
011.111.] PHILADELPHIA PROCESSION. 583
her, 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 proces-
sion 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 na-
tions. Then followed the udges in their robes, and
all the public bodies, preceding a grand federal edi-
ﬁce, 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 ratiﬁca-
tion. When it arrived at “ Union Green,” they gave
up their seats to ten others representing the ten
States which had ratiﬁed the instrument. The fed-
eral 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
584 ADOPTION on THE ooNsTITUTIoN. [Boox v.
of one of the ten States in gold letters; and, as if to
combine the ideas both of the absence and the pres-
ence 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 them-
selves in quaint devices and exhibitions, to portray, to
personify, and to celebrate the vast social consequen-
ces of an event which had then no parallel in the
history of any other country, —- the free and volun-
tary adoption by the people of a written constitution
of government framed by the agents and representa-
tives 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 difficul-
ties 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 some-
what divided respecting the method to be pursued
for its defeat. Some of them were in favor of con-
ditions precedent, or previous amendments‘; some,
of conditions subsequent, or the proposal of amend-
ments 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
on. 111.] NEW YORK. 585
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 be-
come 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 Chan-
cellor 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
oﬂicial acts and documents, showing that the State
had been compelled to sustain a very large share of
the burden of the Revolutionary war; that requisi-
tions had been unable to call forth the resources of
the country; and that, in the judgment of the State,
oﬂicially and solemnly declared in 1782, and con-
curred in by those who now resisted the establish-
ment of the Constitution, it was necessary that the
Union should possess other sources of revenue. The
VOL. II. 74
586 ADOPTION or THE CONSTITUTION. [BOOK v.
D
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. elab- '
orate 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 am-
ple manner, the purposes of government, may be
bestowed with entire safety. He proceeded to argue,
not only that a general power of taxation was essen-
tial, but that, under a system so complex as that of
the Constitution, — so skilfully endowed with the
requisite forms of representation and division of ex-
ecutive and legislative power, — it was next to im-
possible 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 be-
tween the leading gentlemen on the opposite sides
C11. 111.] NEW’ YORK. 587
of the house. But while it threw a. grave responsi-
bility upon the opposition, it did not conquer them;
and by the day on which the intelligence from Vir-
ginia 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 de-
cided 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 rejec-
tion 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 amend-
ments, would make the reservation unimportant, be-
cause such amendments would satisfy the more rea-
sonable 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
588 ADOPTION OF THE coNsTITIITIoN. [BOOK v.
attending in Congress at the city of New York, ask-
ing his opinion upon the possibility of receiving the
State into the Union in this form.1
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.2
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 rat-
iﬁcation, with a Bill of Rights preﬁxed, and with
amendments subjoined. After a long debate, the
Federalists succeeded, on the 23d of July, in procur-
ing 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 pro-
posing amendments, Congress would not exercise
certain powers which the Constitution conferred up-
on 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
1 Letter to Madison, Works of Hamilton, 1. 464. 2 Ibid. 465.
CH. 11L] SECOND GENERAL CONVENTION.
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 affirma-
tive against twenty-seven negative votes.1
' of the new government.
By this slender majority of her delegates, and un-
der circumstances of extreme peril of an opposite
decision, did the State of New York accept the Con-
stitution of the United States, and become a member
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 cir-
cular letter demanding a general convention for the
amendment of the Constitution.
That there was danger lest another general con-
vention might result in serious injury to the Consti-
tution, 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
’ 1 It was reported in the newspa-
pers of that period that the Consti-
tution was adopted in this conven-
tionl by 30 'yeasiagainst ‘25 ‘nays.
But the oﬁicial record gives the
several votes as they are stated in
the text; ﬁ'om which it appears
that, on the critical question ’of a
conditional or unconditional ratiﬁ-
cation, the majority was only 2“. In
truth, time ratiﬁcation of New York
barely escapes the objection of be-
ing a qualiﬁed one, if it does in fact
escape it. ‘
590 ADOPTION on THE coNsTITUTIoN. [BOOK v.
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 mem-
bers 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 Con-
stitution itself recognized. This was true every-
where, 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 F ed-
eral leaders in that convention assented to the pro-
posal of a course of amending the Constitution for
which the instrument itself provided, however ineli-
gible 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 fol-
lows: —- “Although I could scarcely conceive it pos-
sible, 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.” 1
1 Works of Washington, IX. 408.
CH. SECOND GENERAL CONVENTION.
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 cir-
cular letter, for the purpose of procuring a ratiﬁca-
tion at any price, in order to secure the establish-
ment 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.1
With respect to these complaints and the accom-
panying charge, it is only necessary to say, in the
ﬁrst place, that Hamilton and Jay and their asso-
ciates 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 de-
sire the new government to be more than tempora-
rily placed at the city of New York. He himself
saw the impolicy of establishing it permanently
either at that place or at Philadelphia. He re-
garded its temporary establishment at the city of
1 Madison's letter to Washington, August 24, 1788, Works of Wash-
ington, IX. 549.
592 ADOPTION on THE coNsTITUTIoN. [B‘OOK‘ v.
New York as the certain means of carrying it far-
ther 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.1
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 celebra-
tion 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 ex-
hibit, —-love of country. It were a vain and invid-
ious task to attempt to determine, from the contem-
porary 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 cred-
itable to the people of the city of New York, .that
it should not be 1 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
I See his letter to Governor Livingston of New ‘Jersey, August 29,
1788, Works, I. 471.
ca. 111.] HoNoRs To HAMILTON. 593
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 man-
kind are neither deliberately heartless nor systemat-
ically unthankful; and it has sometimes happened,
in popular governments, that statesmen of the ﬁrst
order of mind and character have, while living, re-
ceived 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 con-
stant 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 compari-
son with all the other public men in the United
States, to be regarded as the chief author of the bless-
ings which they now anticipated from the Constitu-
tion. 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 elo-
quence and the more than youthful power with
which he encountered the pestilent and slavish doc-
trines of their Tories. They thought of his career
in the army, when the extraordinary maturity, depth,
voL. II. 75
594 ADOPTION OF THE CONSTITUTION. [BOOK v.
and vigor of his genius, and his great accomplish-
ments, supplied to Washington, in some of the most
trying periods of his vast and prolonged responsibil-
ity, 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 pre-
dicted 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 construc-
tion 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
on. 111.] HONORS TO HAMILTON. 595
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 acknowl-
edged from the very hearts of those who ‘best knew
his motives and best understood his character.
The people themselves, divided into their respec-
tive 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.1
All that ingenuity, all that affection, that popular
pride and gratitude could do, to honor a public ben-
efactor, 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 Consti-
tution of the United States.
1 Some of the most elaborate of “ Block and Pump Makers ” and
these devices were home by the the “ Tallow-Chandlers.”
CHAPTER IV.
AcTIoN on NoRTH CAROLINA AND RHonE 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 con-
vention 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,
17 87 , had ordered a State convention, which assem-
bled 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 un-
til the 2d of August; still it had been manifest from
the ﬁrst that they would not allow of an uncondi-
tional 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
on. W] NORTH OAROLINA. 597
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 uncon-
ditional assent to the Constitution as it then stood.
The Federalists contended strenuously for the
course pursued by the other States which had pro-
posed 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.1 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
1 This resolution was adopted nays. North Carolina Debates,
August 2, 1788, by 184 yeas to 84 Elliot, IV. 250, 251.
598 ADOPTION on THE CONSTITUTION. [BOOK v.
lay an impost on goods imported into the States
which had adopted it, they recommended the legis-
lature 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.‘
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 scat-
tered sources. Constitutional government was ex-
posed 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
1 North Carolina Debates, Elliot, IV. 250, 251.
on. IV.] RHODE ISLAND. 599
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 in-
ﬂuence of the confederacy, because the early and
local effect of the Revolution in fact coincided with
it. But when the Revolution was fairly accom-
plished, and the State had assumed its position of
absolute sovereignty, what may be called the extreme
individualism of the people, and their old unfortu-
nate 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 estab-
lishment 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 consid-
erable period, a despotic and well-organized party,
. known as the paper-money party. This faction had
long controlled the legislation of the State, by fur-
nishing the agricultural classes, in the shape of pa-
per 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.
600 ADOPTION on THE coNsTITUTIoN. [BOOK v.
Secondly, there existed, to a great and ludicrous
extent, a constant antagonism between town and
country,—between the agricultural and the mercan-
tile or trading classes; and this hostility was espe-
cially 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.1
The paper-money question divided the inhabitants
of the State in the same way. The loss of this cir-
culation 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 advan-
tages of the State ought in some way to be made use
of, for obtaining better terms with the general gov-
ernment than could be had under the Constitution,
and that by some such means funds could be ob-
tained 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
1 The march of the country peo-
ple upon Providence, on the 4th
of July, 1788, and the manner in
which they compelled the inhabi-
tants 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.)
CH. Iv.] RHODE ISLAND. 601
censure can be too strong to be applied to them.
They were regarded and spoken of everywhere,
among the Federalists, with contempt and abhor-
rence. Even the opposition in other States, in all
their arguments against the Constitution, never ven-
tured 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 H01-
land, namely, to send his men with shovels and pick-
axes, and throw them all into the sea. Such an un-
dertaking, 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 hon-
esty. 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,
von. 11. 76
602 ADOPTION on THE CONSTITUTION. [BOOK v.
in the conventions of the other States, to some of the
most important debates that the subjects of govern-
ment and free institutions have ever produced. In-
deed, 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,
1'7 88, instead of calling a convention, they referred
the adoption of the Constituion to the freemen in
their several town meetings, for the purpose of hav-
ing 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 meet-
ings and refused to vote. The result was, that the
people of the State appeared to be nearly unanimous
in rejecting the Constitution.‘
The freemen of the towns of Providence and New-
port, thereupon presented petitions to the General
Assembly, complaining of the inconvenience of act-
ing upon the proposed Constitution in meetings in
which the people of the seaport towns and the peo-
ple 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 re-
1 There were 2,708 votes thrown against it, and 232 in its favor. This
occurred in March, 1788.
CH. IV.] POSITION OF THE UNION.
fused, and Rhode Island remained in this position,
at the time when the question of organizing the new
government came before the Congress of the Confed-
eration, 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 over-
come 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 ourney 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, hap-
py, and prosperous people, her noble waters where
she sits enthroned upon her lovely isles, —and re-
members her ancient and her recent history, he can-
not 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 light to vote on all questions coming before the
Congress of that confederacy; and it was to this
604. ADOPTION on THE coNsTITUTIoN. [BOOK v.
body that the national Convention itself had looked
for the initiatory measures necessary to organize the
new government under the Constitution. The ques-
tion 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 estab-
lished 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 peo-
ple, 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 circum-
stances the two remaining States accepted its bene-
ﬁts, —- what development and what direction it re-
ceived from the generation of statesmen who made
and established it,—belongs to the next epoch in
our political history, the Administration of Wash-
ington.
APPENDIX.
APPENDIX.
CONSTITUTION
OF
THE UNITED STATES OF AMERICA."6

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 Bless-
ings of Liberty to ourselves and our Posterity, do ordain and establish
this CONSTITUTION for the United States of America.
A 1)
mtTICLE. 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. 1The 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.
2No 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.
3Representatives 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

it This copy of the Constitution has been compared with the Rolls in the
Department of State, and is punctuated and otherwise printed in exact con-
formity therewith.
608 APPENDIX.
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 Repre-
sentative; 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, Vir-
ginia 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.
5The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.
SEcTIoN. 3. 1The 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.
2Immediately 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 Legisla-
ture of any State, the Executive thereof may make temporary Appoint-
ments until the next Meeting of the Legislature, which shall then ﬁll
such Vacancies.
3N0 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.
4The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.
5The Senate shall chﬁge their other Oﬁicers, 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.
6The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
CONSTITUTION OF THE UNITED STATES. 609
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.
7Judgment 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 con-
victed shall nevertheless be liable and subject to Indictment, Trial, J udg-
ment and Punishment, according to Law.
SECTION. 4. 1The 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.
2The 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. 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 Attend-
ance of absent Members, in such Manner, and under such Penalties as
each House may provide.
2Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.
3Each 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.
4N either 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. 1The 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.
2No Senator or Representative shall, during the Time for which he
was elected, be appointed to any civil Office under the Authority of the
VOL. II. 77
610 I APPENDIX.
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. 1All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
2Every 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 origi-
nated, who shall enter the Objections at large on their Journal, and pro-
ceed 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 Ob-
jections, 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.
3Every Order, Resolution, or Vote to which the Concurrence of the
I 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 1To 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;
2To borrow Money on the credit of the United States;
3To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;
4To establish an uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;
CONSTITUTION OF THE UNITED STATES.
5T0 coin Money, regulate the Value thereof, and of foreign Coin, and
ﬁx the Standard of Weights and Measures;
6To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
7To establish Post Ofiices and post Roads;
8To 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;
9T0 constitute Tribunals inferior to the supreme Court;
10To deﬁne and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;
11T0 declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
12To raise and support Armies, but no Appropriation of Money to
that Use shall be for a longer Term than two Years;
13To provide and maintain a Navy; -
1‘1T0 make Rules for the Government and Regulation of the land and
naval Forces;
15To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
16To 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 Oﬁicers, and the Authority of training the Militia according to the
discipline prescribed by Congress; _
17To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession of particu-
lar States, and the Acceptance of Congress, become the Seat of the Gov-
ernment 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
18To 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 Depart-
ment or Oﬁicer thereof.
SECTION. 9. 1The Migration or Importation of such Persons as any
of the States now existing shall think proper to admit, shall not be pro—
hibited 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.
612 APPENDIX.
9The Privilege of the W'rit of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.
3N 0 Bill of Attainder or ex post facto Law shall be passed.
4N0 Capitation, or other direct, Tax shall be laid, unless in Proportion
to the Census or Enumeration herein before directed to be taken.
5No Tax or Duty shall be laid on Articles exported from any State.
6No 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.
7No 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.
8No Title of Nobility shall be granted by the United States: And no
Person holding any Otﬁce 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. 1No 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.
2No State shall, without the Consent of the Congress, lay any Imposts
or Duties on Imports or Exports, except what may be absolutely neces-
sary 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 Controul of the Congress.
3No 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. 1The 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
CONSTITUTION OF THE UNITED STATES.
2Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Sen-
ators and Representatives to which the State may be entitled in the Con-
gress: 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 Per-
sons 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 Elec-
tors 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 twothirds 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.at
3The 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.
4No 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 Oﬁice of President; neither shall any Person be eligible to that
Oﬁice who shall not have attained to the Age of thirty ﬁve Years, and
been fourteen Years a Resident within the United States.
5In Case of the Removal of the President from Oﬁice, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the said
Oﬁice, the same shall devolve on the Vice President, and the Congress

* Altered by the 12th Amendment.
614 APPENDIX.
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 accord-
ingly, until the Disability be removed, or a President shall be elected.
6The President shall, at stated Times, receive for his Services, a Com-
pensation, 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. .
7Before he enter on the Execution of his Office, he shall take the fol-
lowing Oath or Affirmation : —
“ I do solemnly swear (or aﬂirm) 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. J‘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 togrant Reprieves and Par-
dons for Offences against the United States, except in Cases of Impeach-
ment.
2He 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 Con-
sent 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 :v 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 Depart-
ments. '
3The President shall have Power to ﬁll up all Vacancies that may hap-
pen 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 Infor-
mation 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 Ad-
CONSTITUTION OF THE UNITED STATES. 615
journment, 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 Oﬁ’icers of
the United States, shall be removed from Oﬁice on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and Misde-
meanors.
, 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 Oflices during good Behavior, and
shall, at stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Oflice.
SECTION. 2. 1The 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 Author-
ity ;--to all Cases aﬂ'ecting 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 1; —— to Contro-
versies between two or more States; -— between a State and Citizens of
another State;-—between Citizens of different States,-—-between Citi-
zens 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.
2In all Cases affecting Ambassadors, other public Ministers and Con-
suls, 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.
3The 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. 1Treason~ against the United States, shall consist only
in levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort. N 0 Person shall be convicted of Treason unless
616 APPENDIX.
on'the Testimony of two Witnesses to the same overt Act, or on Confes-
sion in open Court.
2The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or Forfeit»-
ure 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 1The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
2A Person charged in any State with Treason, Felony, or other Crime,
who shall ﬂee from Justice, and be found in another State, shall on De-
mand of the executive Authority of the State from which he ﬂed, be de-
livered up, to be removed to the State having Jurisdiction of the Crime. 1
3N0 Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or Reg-
nlation 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. 1New 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 J unc-
tion 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.
2The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property be-
longing 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 canridtngg convened) against domestic
Violence. '
ARTICLE. V.
The Congress, whenever two thirds of both Houses shall deem it
CONSTITUTION or THE UNITED STATES. 617
necessary, shall propose Amendments to this Constitution, or, on the Ap-
plication 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 rati-
ﬁed by the Legislatures of three fourths of the several States, or by Con-
ventions in three fourths thereof, as the one or the other Mode of Ratiﬁ-
cation 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.
1All 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.
2This 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. ,
3The Senators and Representatives before mentioned, and the Mem-
bers of the several State Legislatures, and all executive and judicial Oﬂi-
cers, 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 Oﬁice or public
Trust under the United States.
ARTICLE. VII.
The Ratiﬁcation of the Conventions of nine States, shall be suﬁicient
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 where-
of We have hereunto subscribed our Names,
G‘? WASHINGTON --
Presidt and Deputy from Virginia
von. 11. 78 ,
618
APPENDIX.
NEW HAMPSHIRE.
JOHN LANGDON, NICHOLAS GILMAN. '
MASSACHUSETTS.
NATHANIEL GORHAM, RUFUS KING.
CONNECTICUT.
WM. SAML. JOHNsON, ROGER SHERMAN.
NEW YORK.
ALEXANDER HAMILTON.
NEW JERSEY.
DAVID BREARLEY,
JONA. DAYTON.
WIL : LIVINGSTON,
WM. PATERsON,
PENNSYLVANIA.
THOMAs MIFELIN,
GEO: CLYMER,
JARED INGERsoLL,
GOUv: MORRIs.
DELAWARE.
GUNNING BEDFOBD, jun.
RICHARD BAssETT.
B. FRANKLIN,
RORT. MORRIS,
THO$ FITz SIMONs,
JAMES WILSON,
GEO: READ,
JOHN DICKINSON,
JACO: BROOM.
MARYLAND.
JAMES M’HENRI', DAN: OF ST. THOS.JENIFER,
DANL. CARROLL.
VIRGINIA. ‘
JAMES MADISON, JR.
NORTH CAROLINA.
RICH’D DORRs SPAIGHT.
JOHN BLAIR,
WM. BLOUNT,
HU. WILLIAMSON.
SOUTH CAROLINA.
CHARLEs COTEswORTH PINCKNEY,
PIERCE BUTLER.
J. RUTLEDGE,
CHARLEs PINCKNEY,
GEORGIA.
WILLIAM FEW, ARR. BALDWIN.
Attest 2
WILLIAM JACKSON, Secretary.
CONSTITUTION OF THE UNITED STATES. 619
A R T I G L E S
IN ADDITION TO, AND AMENDMENT OF,
THE CONSTITUTION OF THE UNITED STATES OF
AMERICA,
PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLA-
TUREs OF THE SEVERAL STATES, PURSUANT TO THE FIFTH
ARTICLE OF THE ORIGINAL CONSTITUTION?“
(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 in-
fringed.
(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, sup-
ported 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 beheld to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
it 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.
620 ‘ APPENDIX.
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 W.)
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 ex-
tend 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 Sub-
jects 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
CONSTITUTION OF THE UNITED STATES.
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the per-
son 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-Pres-
ident, 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 hav-
ing the greatest number of votes for President, shall be the President, if
such number he 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 Pres-
ident 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 Presider . -~~ 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 oﬂice of President shall be eligible to that of Vice-Pres-
ident of the United States. - '
INDEX.
A.
Acquisition, national spirit of, reﬂec-
tions on, H. 312.
ADAMS, JOHN, delegate to ﬁrst Conti-
nental Congress, I. 13. On Wash-
ington’s appointment as commander-
in-chief, 42. One of the committee
to prepare Declaration of Indepen-
dence, 50. His account of the Dec-
laration, 82. First minister to Great
Britain, 257. Answer to his com-
plaints about the treaty, 257. In-
structed to negotiate treaty with the
Netherlands, 280. One of the com-
missioners 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. Re-
serve Of, respecting Constitution, II.
533. Disapproves of Constitution,
533. Character of, 534. Position
of, in convention of Massachusetts,
534. In favor of Hancock’s amend-
ments to Constitution, 538.
ADAMS, captain in the Revolutionary
naval force, I. 74.
Address of the Colonies to the people
of Great Britain, 1. 23.
Admiralt Jurisdiction, criminal, II.
330. f 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 Gen-
eral Washington, I. 425. Report
of, received in Virginia legislature,
426.
Aliens, rights to be conceded to, in
certain treaties, I. 280. See For-
ei ners.
A ega'ance of people of the Colonies,
transferred, 1. 52,,
Alliance. See Trelzty of Alliance.
Ambassadors, proposed appointment
of, by Senate, II. 223, 410; by Pres-
ident, 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,
17 7 . And revolution, distinction be-
tween, 473.
Amendments of Constitution, when to
be prQpnqPrl 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 Han-
cock, 537; by Massachusetts, classi-
ﬁed, 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 Confedera-
tion, how made, II. 84, 473, 481.
America, natural advantages of, for
commercial pursuits, II. 309. Vari~
ety of climate and products of, 309.
American Constitutions, character of, I.
261.
American Feeling, Washington’ 8 efforts
to create, I. 110.
American People perceive the insuﬁi-
ciency of State governments, I. 114.
Early familiarity of, with the princi—
ples of government, 117. Perceive
the necessity of a union, 121. See
People of America.
American Revolution, commencement
624
INDEX.
ed to the States, 53, 104, 113. Adop‘
tion of, by the States, 124. Amend-
ments to, proposed by the States,
128; by New Jersey, for regula-
tion of commerce, 129. Chief obsta-
cle to the completion of, 131. States
urged to accede to, 134. Ratiﬁcd by
New Jersey, 135 ; by Delaware, 135;
by Maryland, 136. Completion of,
announced, 137. Established by pa-
tatriotic sacriﬁces, 139. Outline of,
142. Construction of third article of,
265. Circular letter of Congress, rec-
ommending adoption of, 491. Rep-
resentation of New Jersey respecting,
493. * Act of New Jersey accepting,
497. Resolves of Delaware respect-
ing, 498. Action of Maryland on,
501 ; of New York on, 505. Amend-
ment of, at ﬁrst contemplated, II. 16.
How altered, 84, 180, 481. Citizen-
ship under, 206. Effort to include
in, power over Western Territory,
341. Admission of new States under,
345. On what terms ratiﬁed by small-
er States, 346. Restraints imposed
on States by, 363. Inter-state privi-
leges 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.
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 ef-
fects of, II. 196. Policy which led
to, real cause of, 238. Effect of, on
views of people of United States,
relatin to government, 238.
Annapo is, general commercial con-
vention at, I. 326, 340, 350. Recom—
mends general convention to revise
the federal system, 349. Recom-
mendation, 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 Fedgrdiists.
Appropriation Bills, provision concern-
ing, objected to, II. 147 . See Money
Bills and Revenue Bills.
Arms ofthe United States, when adopt-
ed, 1. 151.
ARMSTRONG, Joan, wrote the New-
burgh 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. Presi-
dent commander-in-ehief 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 ac-
counted for, 60. Committee of Con-
gress sent to examine, 60. Discon—
tents in, 79, 158, 186. History of,
after the evacuation of Boston, 91.
Reorganized, 91, 92. Defects in or-
ganization of, 93. Oﬂicers of, how
appointed, 93; how treated in 1776,
94. Bad construction of, 94, 96.
Third effort of Washington to reor-
ganize, 109. Embarrassments and
diﬂiculties 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. Re-
ported in Congress, and recommend-
BALDWIN, ABRAHAM, model of Sen-
ate suggested by, II. 139. Vote and
views of, respecting representation in
Senate, 142.
Baltimore, public rejoicings in, in hon-
or 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 Massa-
chusetts, II. 454.
Bill Qf Rights, want of, a strong argu-
ment with some against Constitution,“
II. 498. James Wilson’s views re-
INDEX.
625
specting, 522. States equally divid-
ed on question of, in Convention,
523. Considered essential by Patrick
Henry, 554. Proposed by Virginia,
581. '
Bills of Credit, power to emit, prohib-
ited to States, II. 328, 364. Mean—
ing of, 329.
Boston, occupied by royal troops in
1774-75, 1. 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 respect-
ing, 235. Determination of, a judi-
cial question, 232. See Western Ter-
ritory, Lands, and Northwestern Ter-
rztory.
Bounties offered for enlistment in 17 76,
I. 93. Additional, otfered by States,
95 ; effect of, 110. '
BOWDOIN, JAMES, delegate to ﬁrst
Continental Congress, I. 13. Gov-
ernor of Massachusetts, 270. Sup-
presses Shays’s rebellion, 270. Mes-
sage of, suggesting a general conven-
tion, 336.
Brandi/wine, battle of the, force en-
gaged 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. 7 4.
BUTLER, PIERCE, in favor of the
Constitution, II. 510.
C.
Cabinet, functions of, II. 407 . Views
respecting, in Convention, 408. Presi-
dent may require opinions of, 408.
Constitutional character of, 409.
Practice of ﬁrst three Presidents re-
specting, 409.
Captures, power of Congress to regu-
late, 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.
vor.. 11. 79
Cases arising under Constitution, &c.,
meaning of, II. 430'.
Census, periodical, proposed by Wil-
liamson 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 North-
western Territory.
Charleston, rejoicings in, on adoption
of Constitution, II. 548.
Charter, of William and Mary to Mas-
sachusetts, I. 5; attempt to alter, 6.
Inviolability of, 23. How distin-
guished from constitution, II. 7.
Charter Governments, form and charac-
ter 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
oﬁicers, II. 186, 188, 204; of sena-
tors, 223. State rules respecting,
unlike, 199. General privileges of,
under Confederation, 206, 448 ; un-
der Constitution, 448. See Naturali-
zation.
CLARKE, GEORGE RoeERs, 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 Con-
stitution, II. 502. '
Coinage of the United States, origin
of, I. 443. .
Corr, 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, be-
fore 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 regu-
late in Parliament, 20. Reduction
of, to submission, great preparations
for, 38. Trade with, prohibited by
Parliament, December, 17 7 5, 38.
Change of, into States, 116. Consti-
tutional power of, II. 17 9.
Commerce, of the United States, I.
276; capacity of, at the close of the
war, 284. Regulation of, a leading
626
INDEX.
Commission.
Commutation.
Compromises between national and fed-
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 gov-
ernment 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 diﬂ‘erent States, not identical,
291, 299. Powers of government
over, inﬂuence of, 311. Necessities
of, basis of Constitution, 312. See
Regulation of Commerce.
Commercial Convention.
Zis and Virginia.
Commercial Power asked for by Con-
gress, I. 285. Action of the States
respecting, 286.
Commercial Treaties, want of, dis-
played, I. 277. Existing at the peace,
279. How far the Confederation com-
petent to make, 279. Why not made
with England, 282. Congress endeav-
ors to get power to make, 285. At-
tempt to negotiate without power,
286. States refuse the power to make,
‘287.
sioners to negotiate, 289.
See Commercial Treaties
and JOHN ADAMS.
Committee of Congress sent to confer
with Washington, I. 60, 93.
Committee of the States under the Con-
federation, I. 146.
See Annapo-
Committees of Correspondence recom-
mended by Virginia, I. 11. Agency
of, 12.
Common Law, one of the rights of the
Colonies, I. 23. And equity, distinc-
tion between, preserved by Constitu-
tion, II. 425. Basis of State jurispru-
dence, 425.
See Half-Pay.
eral systems, II. 102, 104. Lie at
‘the basis of the Constitution, 129. -
Respecting formation of Congress,
141, 167,195 ; representation in Con-
gress, 14,6. Respecting slavery, 161;
how to be effected, 163; reﬂections
on, 309. Committee of, proposed by
Gouverneur Morris, 201'. Respecting
Fruitless efforts of the commis- ‘
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, oﬁicc 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. Op-
eration 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, ad-
bored to, 225. Summary of its oper-
ations, 228. Incapacity of, to protect
the State governments, 260. Had
no strict power to hold or manage
public lands, 291. Decayv and fail~
ure of, 328; II. 13. Fatal defect in
the principle of the, I. 371. Nature
of’, II. 16. Had no power of compul-
sion, 16, 376. Powers of, 27. Prin-
ciple 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 Con-
vention in session, 178. Relation of,
to States, 179. States opposed to
entering, except on full federal equal-
ity, 227. Had no seat of govern-
ment, 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 fail-
ure of, 573. See Articles of Confeder-
ation 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; restric-
tions on powers of, 146 ; attendance
diminished after the peace, 189 ; d_r1v-
en from Philadelphia by a mutiny,
INDEX.
627
220; decline of, 226; meeting of, in
1783, 235; thinly attended, 235;
appointment and attendance of dele-
gates, 237, 239; perpetually in ses-
sion, 238; public objects to be ac-
complished by, 239 ; condition of, in
1785, 339; unﬁtted to revise the fed-
eral system, 364 ; had but one cham-
ber, II. 132; resolution for continu-
ance of, 176; method of voting in,
226; members of, chosen annual-
ly, and liable to recall, 241; ap-
pointment 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 North-
west 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 sug-
gested, 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 con-
cerning, 340, 358; limited, 340; over
soil of national domain, 351 ; pro-
posed, 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 oﬂice, 250 ;
time, &c. of electing, left to States,
258 ; pay of, proceedings in Conven-
tion respecting, 258; objections to
States paying, 259 ; privileged from
arrest, 263; punishment and expul-
sion 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. Ad-
mission of members of Cabinet, &e.
to, question respecting, 253. Each
house of‘, to be judge of elections,
&c. of its own members, 262 ;. to de-
termine its own rules of proceeding,
263 ; to keep journal, 263. Adjourn-
ment of, 275, 419. Exclusive sover-
eign of District of Columbia, 277.
Time of meeting of, 27 7 . To make
all necessary and proper laws for ex-
ecution 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 rec-
ords, &c., 449. To propose amend-
ments to Constitution, 47 7. To call
Convention‘ to amend Constitution,
when, 47 7.
Connecticut, a charter government, I. 5.
Governor, council, and representa-
tives always chosen by the people,
6. Had ﬁve representatives in ﬁrst
House, 149. Cedes claims to West-
ern territory, 300, 344. Appoints
and instructs delegates to the Con-
vention, 369. Opposed to Conven-
tion, II. 23 ; to executive holding of-
ﬁce during “good behavior,” 173;
to property qualiﬁcation for office,
189; to nine years’ citizenship as
qualiﬁcation of Senator, 224 ; to tax-
ing exports, 296 ; to restricting Pres-
ident to stated salary, 407. In favor
of equality of suffrage in both branch-
es of Congress, 122, 138 ; of equal
representation of States in Senate,
141, 148, 165 ; of census of free in-
habitants, 153 ; of referring Consti-
tution to State legislatures, 184 ; of
each State having one vote in Sen-
ate, 227. Vote of, respecting citizen-
ship as qualiﬁcation for ofﬁce, 209;
respecting money bills, 216, 218 ; re-
specting eligibility of members of
Congress to‘oﬂice, 251 ; respecting
slave-trade, 305. Ratiﬁcation of Con-
stitution by, 515. Convention of,
527; debates in, mostly lost, 529.
Connecticur Reservation, note on, I. 300.
Constitution, how framed, II. 3. Means
of peaceful coercion a leading object
of, 62. An abridgment of State pow-
ers in some respects, 73. Republican
government guaranteed to States by,
80, 458, 468. Capacity of, of amend-
ment, 84. Why submitted to peo-
ple for ratiﬁcation, 84. ' As reported
to Convention, 86. Different plans
of, proposed in Convention, 89.
Compared with Confederation, 90.
Compromise of, between national
628
INDEX.
and federal system, 102. Based on
compromises, 129. Possibility of fail-
ure to create, reﬂections on, 142. Fra-
mers of, problem before, 155; posi-
tion and purposes of, 178 ; had been
observers of Parliamentary corrup-
tion, 242. State and national officers
sworn to support, 177, 372. Ratiﬁca-
tion 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. Di-
vided into twenty-three articles by
committee’s report, 194. Interest in
Europe respecting, 196. Should de-
ﬁne eligibility to national ofﬁces, 199.
Purposes of, respecting immigrants,
209. Analogy of, to British Consti-
tution, 214. Provisions of, as origi-
nally 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, su-
perﬁcial, 313. Proper mode of judg-
ing, 313. Rights guaranteed to
States by, 314. Beneﬁcent opera-
tion of, on condition of slaves, 315.
Provision of, respecting power of Con-
gress over Territories, 355; purpose
of, 355 ; explanation of, 357. Adop-
tionof,~372. Preamble to, 372. Su-
preme law, 374. Binding on all ju-
dicial ofﬁcers, 374. Complex char-
acter 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 gen-
eral government, 432. Restrictions
laid on States by, 432. Powers of
national and State governments de-
termined 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 re-
quired under, 47 8. 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. Presen-
tation of, to Congress, 486. Proba-
ble consequences of rejection of, 487.
Issue presented by, to people of Unit-
ed States, 487. Attempt to intro-
duce monarchy averted by, 494. Pub-
lished September 19th, 1787, 495.
Reception of, among the people, 495.
Friends and opponents of, classiﬁed,
495. Advocates of, why styled Fed-
eralists, 496. Adopted by intelligent
majority in each State, 499. Recep-
tion of, by Congress, 499. Attempt
in“ Congress to arrest or alter, 499.
Real crisis of, 515. General and spe-
cial opposition to, 515. People pre-
disposed to adopt, 516. First rati-
ﬁed by Delaware, 518. Right of
people to change at pleasure, 522.
Bestows only a part of power of peo-
ple, 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, con-
cessions to, justiﬁed, 590.
Constitutions, Written, how far exist-
ed before the Revolution, I. 4. Of
the States, origin and character of,
261.
Constitutional Convention, ﬁrst sugges-
tion of, I. 206. First suggested by
Massachusetts, 336. Suggestion of
Massachusetts respecting, not adopt-
ed, 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 re-
specting, 373. Assembles at Phila-
delphia, 374. Novelty and peculiari-
ty of its task, 37 4. List of members
of, 516. Great object of, II. 5. Mem-
bers of, character of, 17 ; different
views of, 17 ; greatness of, 144. Au-
thority and powers of, uncertain, 18.
All States but Rhode Island repre-
sented 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 ;_ singu~
INDEX.
629
larrumors respecting, 492. Supposed
want of authority in, to propose fun-
damental changes, 91. Report of
committee of the whole made to, June
19th, 129. Struggle in, respecting
form of Constitution, 129. Disrup-
tion 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, origi—
nates in The Federalist, I. 417.
Questions of, how detemiined, II.
375.
Constitutionality of laws, questions of,
how settled, II. 433.
Construction, questions of, how far con-
sidered, 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. Recom-
mended 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 re-
dress, 1 8, 1 9 ; ' revolutionary tendency
of, 19 ; assumed guardianship of
rights and liberties, 19; proceedings
of, in stating rights, 20; duration of,
24 ; adjournment of, 25 ; recom-
mends another Congress, 25 ; where
held from 1774 to 1783, 226; each
Colony had one vote in, II. 227. Sec-
ond, election of dele ates to, by Mas-
sachusetts Provincia? Congress, I. 27 ;
assembles at Philadelphia, 28; dele-
gates to, how appointed, 29 ; instruc-
tions to delegates to, 29 ; rule of'vot—
ing in, 29; powers assumed by, 31.
Becomes a permanent body, 30. Pe-
tition of, to the King, 38. Dissolves
the allegiance of the Colonies to the
King, 38. Becomes'a revolutionary
government, 39. Nature of the gov-
ernment by, 54. , Situation of, at the
end of 1776, 100. Change in the
members of, in 1777, 104. Creden-
tials of members of, in 1776, 105.
Constitution of, II. 42.
Continental Currency ﬁrst issued, I.
34.
Contracts, restraint on legislative vio-
lation of, origin of, II. 361, 365 ; ob-
ligation of, impaired by State law, re-
dress 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 Con-
stitutional Convention.
Copyrights, State legislation concern-
ing, II. 339. Power over, surren-
dered to Congress, 339.
CORNWALLIS, enters Newark, I. 98.
Effect of capture of, 157.
Council, vacancies in, how ﬁlled in
provincial governments, I. 4. Sus-
pension of, from oiﬁce in provincial
governments, 4. Part of the provin-
‘cial governments, 4 ; charter govern-
ments, 5. How chosen, 5.
Council of Revision, proposed, dangers
of, II. 435; much favored in Con-
vention, 438 ; purpose of, 438.
Counterfeiting, power of Congress to
deﬁne and punish, II. 332.
Courts, inferior, Congress may estab-
lish, II. 330, 423.
Courts of United States, jurisdiction of,
over persons of certain character, II.
441. Admiralty and maritime juris-
diction of, 445.
Creditors, rights of, secured by the
Treaty of Peace, 1. 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
Cprovincial governments, 4.
urrency under Revolutionary govern-
ment, I. 78.
Cnsnme, THOMAS, sug ests Conti-
nental Congress, I. 11. elegate to
ﬁrst Continental Congress, 13.‘
~D.
DANE, NATHAN, author of Ordinance
of 1787, II. 365.
Debts due to English merchants at
the peace, I. 250. Action of Con-
630
INDEX.
gress 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 dis-
charge, 183. Amount of, at the close
of the war, 184.
Declaration of Independence, authorship
of, I. 81. Etfect of, upon the coun-
try, 89; upon Congress, 90. See In-
dependence.
Declaration of Rights, by ﬁrst Conti-
nental Congress, I. 22.
Delaware, a proprietary government, I.
5. Constitution of, formed,122. Re-
sists the claim of great States to
Western lands, 131. Ratiﬁes the
Confederation, 135. Action of, com-
mended, 138. Resolves of, respect-
ing the Articles of Confederation,
498. Opposed to change in rule‘of
suffrage, II. 36 ; to division of legis-
lature, 133 ; to census of free inhabit-
ants, 153 ; to striking out wealth from
rule of representation, 164 ; to refer-
ring Constitution to people, 185 ; to
property qualiﬁcation for oﬂice, 189;
to restricting President to stated sal-
ary, 407. Vote of, respecting citi-
zenship as qualiﬁcation for office, 209 ;
respecting moneybills, 216,218; re-
specting 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 oﬂice during “good behav-
ior,” 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 Am eri-
ca, 11. 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 178l,‘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,
not 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 con-
ﬁned to native citizens, II. 198.
Electors, of .President, advantages of,
H. 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 ap-
pointment of, when, 403. Property
as a qualiﬁcation of, 187. Of repre-
sentatives 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, 1. 391.
English Language spoken by the colo-
nists, I. 3, 9.
English Laws inherited by the colo-
nists, I. 9. _
Enlistments. See Army and Bounties.
Equity and common law, distinction
between, preserved by Constitution,
INDEX.
631
II. 425. Jurisdiction under Consti-
tion important, 425.
Europe, politics of, as affecting Amer-
ica, 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
oﬁice of, under Hamilton’s plan, 100.
Duration of oﬁice of, 171 ; proposed
to be during “good behavior,” 173.
Re-eligibility of, different views re-
spectin g, 17 2, 17 5. Choice of, directly
by people, difficulties attending, 174.
Whether should be subject to im-
peachment, 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 Rep-
resentatives, 222 ; by concurrent vote
of Senate and House of Representa-
tives, 223, 230; proposed negative
of Senate in, 232. Jealousy of,
232. See President and Vice-Presi-
dent.
Errecutz've Department, proposed consti-
tution and powers of, II. 56, 170.
Relation of, to legislature, 57, 247.
Unknown to Confederation, 60. Pow-
ers of, deﬁned by constitutions in
America, 72. Inﬂuence to be al-
lowed to, over legislative, 244. Ac-
tion of, requires discretion, 246.
“Executive Power” vested in Presi-
dent, meaning of, 412. 7
Exports, taxation of, Pinckney’s prop-
osition concerning, II. 189; refusal
of South Carolina to submit to, 281,
285 ; an undoubted function of gov-
ernment, 282 ; consequences of denial
of, 282 ; when only beneﬁcial, 282;
question of, as affected by variety,
283; members of Convention in fa-
vor of, 284; report of committee of
detail respecting, 290 ; great embar-
rassments 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 rea-
sons 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.
Igalmouth (now Portland), burnt, I. 38,
4.
Funeral 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.
ederalist, original meaning of, II. 496.
Changes in meaning of term, 497.
Miniature ship so called, 543.
Federalists of Massachusetts, enthusi-
asm kindled by, H. 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. His-
tory of the editions of, 418. Remark
of, respecting Confederation, II. 61.
Purpose of publication of, 503.
When ﬁrst issued, 503. Authors
A: Kn‘)
U1, IJUUQ
Felony, various meanings of, II. 331.
Power of Congress to deﬁne and pun-
ish, 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 aﬁ'ecting, jurisdiction
in, II. 443. Cannot demand sanc-
tuary as matter of right, 457.
Foreign Inﬂuence, jealousy of, II. 196,
204, 223. Necessity of counteract-
ing, 211.
Forts, authority of Congress over, II.
340.
Framers of the Constitution, difﬁeulties
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,
17 7. Relations of the United States
to, 178.
FRANKLIN, BENJAMIN, his plan of
union in 1754, I. 8. ‘Advises a Con‘
632
INDEX.
gress in 1773, 10. Appointed Post-
master-General by Continental Con-
gress, 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 Con-
vention, 437. Witnesses the success
of Washington’s administration, 439.
Proposition of, respecting represen-
tation in Congress, II. 146. Views
of, respecting money bills, 218. Op-
posed to paying President, 405. In
favor of plural executive, 405. Views
of, respecting executive, quite unlike
Hamilton’s, 405; respecting, conse-
quences of rejection of Constitution,
487 . Unbounded conﬁdence of peo-
ple 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 Confedera-
tion, 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. Ap-
points and instructs delegates to the
Convention, 369. Had but one cham-
ber 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 repre-
sentatives in ﬁrst House, 149. Op-
posed to census of free inhabitants,
153; to equality of States in Senate,
165 ; to executive holding ofﬁce dur-
ing “ good behavior,” 173. In favor
of property qualiﬁcation for national
ofﬁcers, 204. Vote of, respecting citi-
zenship as qualiﬁcation for ofﬁce 209 ;
respecting money bills, 216, 218. Di-
vided on question of each State hav-
ing one vote in Senate, 227. Op-
posed to taxing exports, 296. P0-
sition of‘, in Convention, respecting
slave-trade, 297, 301. Vote of, re-
specting slave-trade, 305. Cession
by, in 1802, 357. Vote of, on sus-
pension of habeas corpus, 360; re-
specting citizenship clause in Consti-
tution, 453. Ratiﬁcation of Consti-
tution by, 515, 526. Remoteness of,
526. Situation of, at close of Revo-
lution, 526. Motives of‘, to embrace
Constitution, 526. Address by legis-
lature of, to President Washington,
527. Exposure of, to ravages of In-
dians, 527. Escape of slaves from,
to Florida, 527 .
GERRY, ELBRIDGE, opposed to nu-
merical representation in Congress,
H. 49 ; to tax on exports, 294. Re-
fused to sign Constitution, why, 485.
Censured for refusing to sign Con-
stitution, 501.
GILLoN, Commodore, arguments of,
in convention of South Carolina, II.
548.
GORHAM, NATHANIEL, views of, re-
specting rule of suffrage for House
of Representatives, II. 135. Amem-
ber of committee to apportion repre-
sentatives, 148.
Government, disobedience to, how pun-
ished, II. 61. Essentials to suprema-
cy of, 62. Different departments in,
advantages of‘, 245. Approximation
to perfect theory of, only attainable,
247 . Distribution of powers of, when
easy, 421 ; when diﬂicult, 421.
Governor, part of the provincial gov-
ernments, I. 4.
GRAYSON, WILLIAM, opposed to Gen-
stitution, II. 506.
Great Britain, re-union with, desired
by some, II. 493; letter of Colonel
Humphreys respecting, 493 ; Hamil-
ton’s views respecting, 494.
Green Dragon Tavern, meeting at, re-
specting a national regulation of
commerce, I. 336.
Grievances. See Colonies and Revolu-
tion.
Guardoqui, Spanish minister, arrival
of, I. 313. Negotiations with, re—
specting the Mississippi, 313.
INDEX.
633
H.
Habeas Corpus, privilege of, when sus-
pended, II. 359 ; under common law
of England, 359.
Halfpay, resisted by Connecticut and
Massachusetts, I. 190. History of,
194. Commutation of, 194. See
Oﬁi'cers of the Revolution.
HALLAM, HENRY, Constitutional His-
tory of England by, great value of,
II. 244.
HAMILTON, ALEXANDER, laments the
changes in Congress in 17 78, I. 127.
Exertions of, respecting revenue sys-
tem, 176. Reasons of, for voting
against revenue system, 177. An-
swers 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 17 80, 205. Enters Con-
gress, 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 oﬁieers, 208. Extent of
views of, 209. On the rule of con-
tribution, 210. On the necessity for
power of taxation, 211. Seeks to
introduce new principles, 211. On
a peace establishment, 214. Opin—
ions on the powers that should be
given to Congress, 219. Exertions
of, to suppress the mutiny at Phila-
delphia, 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 Con-
federation, 263. Views of, respect-
ing the regulation of commerce, 277 ;
the statesmanship of America, 278.
Induces New York to send delegates
to Annapolis, 345. Reports at An-
napolis in favor of a general Con-
vention 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,
voL. 11. 80 y
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. Re-
lation of, to the Constitution, 412.
Compared with the younger Pitt,
413, 416. Eminent ﬁtness of, for the
times, 414. Advocates the Constitu-
tion in the Federalist, 417. Com—
pared with Webster, 418. Anxiety
of, about the Constitution, 419. Un-
justly charged with monarchieal ten-
dencies, II. 11, 94, 110. Views of,
respecting Constitution, 94. Princi-
ples of civil obedience, as propound-
ed by, 96. Views of, respecting rule
of suffrage for House of Representa-
tives, 135; dissolution of Union, 136;
choice of President, 174, 240, 392;
naturalization, 205; larger House
of Representatives, 213. Measures
of, respecting summoning of Consti-
tutional Convention, 273. Views of,
respecting executive, quite unlike
Franklin’s, 405; President’s power
to adjourn Congress, 420. Explana-
tion of, respecting appellate power
of Supreme Court, 428. Views of,
respecting amendment of Constitu-
tion, 477. Objections of, to Consti-
tution, 487. Views of, respecting
consequences of rejection of Consti-
tution, 487, 570; possible reunion
with Great Britain, 494. Essays of,
in Federalist, 503. Believed people
predisposed in favor of Constitution,
516. Arrangements of, for transmis-
sion of news of action of States on
Constitution, 551. Leading spirit in
convention of New York, 568. Anx-
iety 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
634
INDEX.
Hampshire, 573. Letter of, to Madi-
son, respecting chances of ratiﬁcation
by New York, 575. Would have
been led by personal ambition to
remove from New York, 57 5. Policy
of, national, 577. Reason of, for em-
bracing Constitution, 57 7 . Efforts
of, to procure adoption of Constitu-
tion by New York, 577, 584. Sends
news of ratiﬁcation by New Hamp-
shire to Madison, 578. Great speech
of, in New York convention, in favor
of Constitution, 586. Writes to Madi-
son, asking advice respecting New
York, 587. Honors paid to, by city
of New York, 592.
HANCOCK, JOHN, retires from Con-
gross, I. 125. Returns to Congress,
126. President of Massachusetts
convention, II. 537. Proposes a-
mendments to Constitution, 537.
Great influence Of, 537.
HARRIsON, BENJAMIN, opposed to
Constitution, 11. 506.
Hartford Convention, met in 1779, I.
205.
Heights of Haerlem,occupied by Wash-
ington, I. 92.
HENRY, PATRICK, Governor of Vir-
ginia, 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 Con-
stitution in Virginia, 552. Jeffer-
son’s estimate of, 552. Great popu-
larity of, 552. Wisdom of, lacked
comprehensiveness, 553. Great pow-
ers of, employed against Constitu-
tion, 553. Views of, respecting
American spirit of liberty, 553. Con-
sidered Bill of Rights essential, 554.
Arguments of, against Constitution,
555, 557. Modern scepticism con-
cerning abilities of, 561. Quotes Jef-
ferson’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. Be-
came earnest defender of Constitu-
tion, 582.
House of Burgesses, of Virginia, dis-
solved, I. 11.
House of Commons, ministerial majori-
Hty of, during Revolution, II. 237.
ouse of Representatives, Constitution
of, discussion respecting, II. 36. Mem-
bers of, chosen for two years, 134;
qualiﬁcations of, 134. Rule of suf.
frage for, great debate on, 135. Ex-
clusive power of, over money bills,
146, 214. Power of, to ﬁx salaries
of government otﬁcers, 146. Ratio
of representation in, 147, 212. First,
apportionment of members for, 148,
151. Basisof, agreed to, 165. Mem-
bers 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 WVilson, 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 Philadel-
phia, 113. Estimate of, concerning
the American force at the Brandy-
wine, 113.
HUMPHREYS, Colonel, one of Wash
ington’s aids, II. 493. Letter of, re-
specting hopes of loyalists, 493.
HUNTINGTON, Governor, inﬂuence of,
in convention of Connecticut, II.
529.
I.
Impeachment, executive proposed to be
removable on, II. 17]. Whether
executive should be subject to, 176.
How to be decided, 232. To be pre
sented by House of Representatives,
262. Of President, causes of, 397.
King’s pardon cannot be pleaded in
bar of, 414. President cannot par-
don, 414. King may pardon, 414.
Impeachments, proposed plan respect-
ing, II. 235. Nature of, and consti-
tutional 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 maybe
laid by States, 368. Laid by States,
not produce of, how applied, 368;
subject to the revision of Congress,
368. Revenue from, easiest mode of
paying expenses of government, 528.
INDEX.
635
Indian Afairs, superintendence of,
assumed by Continental Congress,
I. 35.
Indians, position of, II. 325. Com-
merce with, 325; regulated by feder-
al authority, 326; provision of Con-
federation respecting, 326. Not re-
garded as foreign nations, 326.
Independence, resolution of, adopted in
Congress, I. 49. Declaration of, or-
dered to be prepared, 50; brought in,
51 ; adopted, 51 ; effect of, 51. ‘
Inspection Laws, subject to what abuse,
II. 368.
Insurrection. See .Zllassachusetts and
Shays’s Rebellion.
J.
JAY, JoHN, report of, on the infrac-
tions of the Treaty of Peace, 1.254,
257. Projected mission of, to Spain,
313. Proceedings of, as Secretary
for Foreign Affairs, respecting the
Mississippi, 313. Essays of, in Fed-
eralist, II. 503. Efforts of, to pro-
cure adoption of Constitution by
New York, 585.
JnrrERsoN, THOMAS, one of’ the com-
mittee to prepare Declaration of In-
dependence, I. 50. Account by, con-
cerning the Congress of 1776,, 64.
Account by, of Declaration of Inde-
pendence, 82. In the legislature of
Virginia, 126. One of the commis-
sioners to procure commercial trea-
ties, 287. On the surrender of the
Mississippi, 321. Suggests the deci-
mal coinage, 443. Views of, respect~
ing admission of States, II. 76. Re-
solve of, for organization of States
from Northwestern Territory, 343.
Practice of, respecting cabinet, 409.
Views of, respect-ing government,
506; modiﬁcations of Constitution,
506. At Paris when Constitution
was adopted, 506. Did not counsel
rejection of Constitution, 508. Per-
severed in certain objections to Con-
stitution, 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. Pow-
er of removal of, in England, 69; in
Massachusetts, 70. “ Good behavior ”
of, 70.
Judicial Power of United States, to set-
tle disputes between State and nation,
II. 54. Unknown to Confederation,
60. Necessity and oﬂice of, 61. In-
tent 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. Ju-
risdiction of, cases embraced by, 423.
Great importance of clearly deﬁning,
425. Embraces cases under Constitu-
tion, 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 opera-
tion of government, 437.
Judiciary, functions of, II. 63, 432.
Question concerning number of tri-
bunals in, 65. Proposed powers of,
66. Restriction respecting salary of,
17 6. Jurisdiction of, respecting im-
peachment of national oﬁicers, 176 ;
over cases arising under national
l we, 17 6 ; over questions involving
national peace, 176. Action of, not
to be inﬂuenced by other depart-
ments, 246.
Judiciary of Massachusetts, attempt to
alter the charter in respect to, I. 6.
K.
Kentucky, inhabitants of, resist the sur—
render 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. Min-
ister to England, 453. 1A member
of committee to apportion represent-
atives, II. 148. Views of, respecting
Senate, 225 ; seat of government, 27 5.
Remarks of‘, respecting slave-trade,
281 . Views of, respecting represen-
tation of slaves, 292. Effort of‘, to
exclude slavery from Northwestern
Territory, 343.
636
INDEX.
L.
Land as the basis of a rule for contri-
bution, I. 210. Adopted as measure
of wealth by Congress of 1776, II.
160. Of United States unappropri-
ated, Madison’s motion respecting,
351.
Lands, right of aliens to hold, pro-
osed in certain treaties, I. 280. See
estern Lands and Territory.
Law 0]“ Nations, offences against, II.
330; power of Congress to deﬁne
and punish, 331. Respecting extra—
dition 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 de-
termined, 434.
LAW, RICHARD, inﬂuence of, in con-
vention of Connecticut, II. 529.
LEE, CHARLEs, General, expedition
of, against the Tories of New York,
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 Constitu-
tion, II. 500. Opposed to Constitu-
tion, 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.
Logalists, 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 Revolu-
tionary Congress, I. 126. Exertions
of, respecting revenue system, 176.
Writes the address in favor of rev-
enue system, 177. Answers Mas-
sachusetts on the half-pay, 193.
Birth of, 420. Public services of,
to the close of the war, 420. Ini-
tiates the Virginia measures leading
to a general Convention, 423. At-
tends the convention at Annapolis,
427. Attends the general Conven~
tion, 427. Labors of, in the Conven-
tion, 427. Opinions and character
of‘, 428. Described by Jefferson, 430.
Letter of, to Philip Mazzei, 431. Ac-
tion of, respecting change in rule of
suffrage, II. 36. Views of, respecting
national government, 40; Senate, 41 ;
revision by Congress of State legis-
lation, 54; revisionary check on leg-
islation by executive, 58; use of force
against States, 62; Constitution, 106;
rule of suffrage for House of Repre-
sentatives, 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 Representa-
tives, 213. Views of, respecting eligi-
bility of members of Congress to of-
ﬁce, 250; seat of government, 275. In
favor of tax on exports, 284. Views
of, respecting slave-trade, 304. Prop-
osition of, respecting Indian affairs,
327. Views of, respecting legislation
of Congress of Confederation over
Northwestern Territory, 345, 348,
351. Views and votes of, concern-
ing 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 Constitu-
tion, 477 ; consequences of rejec-
tion of Constitution, 487. Proposed
INDEX.
637
Maritime Jurisdiction,
amendment of Constitution by Con-
gress, defeated by, 500. Essays of,
in Federalist, 503. A leading advo-
cate of Constitution in Virginia, 506.
Reply of, to opponents of Constitu-
tion in Virginia convention, 558.
Description of new government by,
559. Efforts of, in Virginia conven-
tion, 564. Opinion of, respecting
conditional ratiﬁcation of Constitu-
tion, 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, J OHN, commander of the
Lee, I. 74. Captures a prize,‘ 75.
of courts of
United States, II. 445. Under Con-
federation, 445.
MARSHALL, Joan, a leading advo-
cate of Constitution in Virginia, II.
506.
Mxn'rm, LUTHER, views of, respect-
ing Constitution, II. 92, 121 ; rule of
suffrage for House of Representatives,
135; manner of voting in Senate,
186. Motion of, respecting admis-
sion 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 Revolu-
tionary 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. Ap oints and
instructs delegates to t e Conven-
tion, 369. Action of, upon the
Articles of Confederation, 501. Del-
egates from, divided in opinion,
II. 121. Divided on question of
national legislature, 133; equality
of suffrage in House of Representw
tives, 138. In favor of equal repre-
sentation of States in Senate, 141,
165. Had six representatives in ﬁrst
House, 149. Opposed to census of
free inhabitants, 153; executive hold-
ing office during “good behavior,”
173. In favor of referring Constitu-
tion to State legislatures, 184 ; each
State having one vote in Senate, 186,
227. Vote of, respecting citizenship,
as qualiﬁcation for oﬂice, 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 Constitu-
tion, 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 ex-
ports, 294. Proposition of, to re-
strain 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, ap-
pointed by the crown, 5. Council of,
chosen by Assembly, 5. ‘Represen-
tatives of, chosen by the people, 5.
Appoints delegates to ﬁrst Continen-
tal Congress, 12. Colonial govern-
ment of, how ended, 25. Provincial
Congress of, how formed, 26. Au-
thority assumed by Provincial Con-
gress, 26. Applies to the Continen-
tal Congress, for direction and assist-
ance, 31 ; about government, 32.
Army raised by, in 17 7 5, 31. Issues
letters of marque and reprisal, 7 5.
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. Con-
stitution of, dangers to which it was
exposed, 263. Insurrection in, 266,
II. 83. Disaﬁ'ection in, extensive, I.
273. Cedes claims to Western Ter-
ritory, 300. Proceedings of, respect-
ing a general Convention, 334. Con-
dition of the trade of, in 1785-86,
335. Legislature of, proposes a
general Convention, 336; resolutions
638
INDEX.
of, not presented to Congress, 337.
Resolution of, for a general Conven-
tion, 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 Sen-
ate, 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 mem-
bers 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 Con-
stitution in convention of, 529. High
rank of, 530. Vaci'llation of, 530.
Revolutionary history of, 530. Anx-
iety respecting action of, on Consti-
tution, 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 recom-
mended by, 532, 538, 539; Oppo-
nents of Constitution in, 533, 534;
eminent men in, 534. Probable dis-
astrous effects of rejection of Con-
stitution by, 535. Convention of,
proceedings in, 536; discussion in,
respecting Hancock’s amendments to
Constitution, 538; patriotic conduct
of, 539. Enthusiasm kindled by ac-
tion of, 541.
MAzzEI, PHILIP, letter to, by Madi-
son, I. 431.
MCKEAN, THOMAS, views of, respect-
ing Constitution, II. 523. Public
services of, 524.
MIEELIN, General, sent by Washing-
ton to the Congress, I. 98.
Illilitarg Posts, retained by the British
after the treaty, I. 256, 259.
lllilitia, relation of, to the Conti-
nental Congress, I. 35. Committee
on, II. 319. Of States, power of
general government over, 334; in-
efficient 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 com’mander-in-chief
of, 413; cannot call out without
authority of Congress, 413.
Ministers. See Ambassadors.
Mint, establishment of, I. 444.
Mississippi River, controversy and ne-
gotiations respecting navigation of,
I. 310; referred to the new govern-
ment, 327. Navigation of, a topic of
opponents of Constitution‘ in Vir-
ginia convention, II. .565; Madi-
son’s views respecting’, 567.
Mississippi Valley, people of, spirit of
the, I. 319 ; retaliate upon the Span-
ish authorities, 322; form commit-
tees, &c., 323.
llIonarc/zical Government, dangers of
attempting to establish, I. 370.
M'onarchy, detested by people of United
States, II. 237, 492. Proposed, ru-
mors of, 492. Attempt to introduce,
averted by Constitution, 494.
llloneg, power to coin, given to Con-
gress, II. 328; borrow, and emit
bills, 328.
llfoneg Bills, Originated by House of
Representatives, II. 146. Provision
concerning, objected to, 147 ; origin
of, 214. Originated by House of
Commons, 216. Hallam’s discus-
sion respecting, 216. Vote of States
respecting, 216. Different proposi-
tions in Convention repecting, 219.
May be‘ amended in Senate, 222..
MoNTEsQUIEU, political dlSCllSSlOIlS
of, alluded to, I. 377.
MoRRIs, GOUvERNEUR, Enters ‘the
Revolutionary Congress, 127. Birth
of, 440. Public services _0f, 440-
Chosen Assistant Financier, 443'
Author of the decimal notation, Prepares the text of the COUSiJtutlOn:
444. Character of, 444. First Mm-
ister to France, 447. Senator .frotn
New York, 447. Invited to write 111
The Federalist, 447. Death of, 447-
INDEX.
639
Action of’, respecting change in rule
of suffrage, II. 36. A member of
committee to apportion representa-
tives, 148. Views of, respecting At-
lantic and Western States, 152; re~
specting compound ratio of repre-
sentation, 152. Proviso of, respect-
ing taxation and representation, 158.
Views of, respecting choice of exec-
utive, 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.
Monnrs, ROBERT, on a committee to
inform Washington of extraordinary
powers, I. 101. Laments the ab-
sence of some great revolutionary
characters, 104. Appointed Super-
intendent of Finances, 174. Resig-
nation of, 198.
Mutiny, at Philadelphia, of federal
troops, I. 220.
N.
Natchez, seizure of property at, by
Spanish authorities, I. 318.
National Government, how distinguish?
ed from “federal,” II. 33. Necessi-
ties 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 previ-
ous history, 127. Supposed tenden—
cy of, to absorb State sovereignties,
128. Self-defence a principal object
of, 292.
National Legislature, how to be con-
stituted, II. 35. Divided into two
branches, 36. Representation in, di-
verse views respecting, 36 ; as affect-
ed by State interests, 43; difficulty
in ﬁxing ratio of, 43. Unanimity re-
s ecting powers of, in Convention, 50.
egative 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 con-
stitutional provision, 200. Power of,
transferred from State to national
government, 201.v Views of Hamil-
ton and Madison respecting, 205.
Embarrassments of subject, 205.
Uniform rule of, power to establish,
lgiven to Congress, 328.
aval Force, employment of, in Mas-
sachusetts Bay, I. 73. ,
Navigation Act, report of committee of
detail respecting, II. 290, 301. Posi-
tion of Southern States respecting,
297. Two-thirds vote proposed by
them to be required for, 299. In—
terest 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. Presi-
dent commander-in-chief of, 413.
l\Ilewarlc, Washingto‘n’s evacuation of,
. 98.
Newburyh 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 govern-
ment, I. 4. Ante-Revolutionary gov
ernment of, 4. Constitution of, form
ed, 119. Appoints and instructs del-
egates 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 citizen ship,as qual-
iﬁcation for oﬂice, 209; respecting
money bills, 218; respecting slave-
trade, 305. In favor of taxing ex-
ports, 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 Con-
stitution, 5'14 ; members of, instruct-
ed to reject Constitution, 529 ; amend-
ments presented to, 541 ; majority
of, at ﬁrst opposed to Constitution,
541 ; adjournment of, effect of, 541.
Action of Federalists of‘, 541. Con-
vention of, meets, on adjournment,
549; anxiety respecting action of,
549. Ratiﬁcation of Constitution by,
573. NinthpState to ratify Constitu-
tion, 57 8.
New Jersey, a provincial government,
I. 4. Washington’s retreat through,
97. Constitution of, formed, 122.
640
INDEX.
Proposal of, in 1778, for the regula-
tion of commerce, 129. Resists the
claim of great States to Western
lands, 131. Ratiﬁes the Confedera-
tion, 135. Action of, commended,
138. Attempts to pay its quotas in
paper money, 242. Recommends the
regulation of commerce, 277. Ap-
points and instructs delegates to the
Convention, 368. Representation of,
concerning the Articles of Confedera-
tion, 493. Act of,‘ accepting them,
497. Purely “federal” government
proposed by, II. 92. Hamilton’s plan
of, radical objections to, 99; con-
demned 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 representa-
tives in ﬁrst House, 149. In favor of
census of free inhabitants, 153 ; of
executive holding office durin g “ good
behavior,” 173. Vote of, respecting
citizenship as qualiﬁcation for-office,
209 ; respecting money bills, 21 6, 218.
In favor of each State having one
vote in Senate, 227. Vote of, re-
specting eligibility of members of
Congress to ofﬁce, 251 ; respecting
representation of slaves, 293 ; re-
specting 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. Al-
ways in favor of vesting regulation
of commerce in general government,
525. Action of, in Constitutional
Convention, respecting representa-
tion, 525.
New States, admission of, under the
Confederation, I. 292; under the Or-
dinance of 1787, 308. See Western
Territory and Northwestem Terri-
tory.
New York, Constitution of, formed, I.
122. Magnanimity of, commended,
137 . Action of, upon the revenue
system of 1783, 246. Act of, respect-
ing British debts, 253. Trespass act
of, 256. Proceedings of, respecting
a general commercial convention,
343, 358. Resolution of, for a gen-
eral Convention, 360 ; how received
in Congress, 360. Appoints and in-
structs delegates to the Convention,
369. Act of, respecting boundaries,
&c., 505. Rank of, vat formation of
Constitution, II. 1 18. Commerce of,
at formation of Constitution, 118.
Views of public men of, 118. Op-
posed to division of legislature, 133.
In favor of equality of suffrage in
House of Representatives, 138 ; in
Senate, 141, 148. Had six representa-
tives in ﬁrst House, 149. Withdrawal
of delegates of, from Convention, 1 65,
182,484,502. Rejection of Constitu-
tion by, probable, 182. Vote of, re-
specting money bills, 216. In favor
of each State having one vote in Sen-
ate, 227 .. Reception of Constitution‘
in, 502. Executive government of,
opposed to Constitution, 502. Jeal-
ousy of Union existing in, 502. Let-
ter of delegates of, against Constitu-
tion, 502. Proceedings of legislature
of, respecting Constitution, 503; of
parties in, respecting Constitution,
503. Convention of, to vote on Con-
stitution, 504. Formidable opposi-
tion to Constitution in convention of,
529. Legislature of‘, divided on ques-
tion of submitting Constitution to
people, 536. Convention of, impor-
tance of action of, 542 ; time of meet-
ing of, 549; anxiety respecting ac-
tion of, 549; met at Poughkeepsie,
549 ; Hamilton leading spirit in, 568 ;
discussion in, respecting system of
representation-proposed by Constitu-
tion, 573. Opponents of Constitu-
tion in, arguments and plan of, 572 ;
Hamilton’s reply to, 57 2. Effect on,
of ratiﬁcation by New Hampshire,
574. Opponents of Constitution in,
schemes of, 584. Numerous amend-
ments 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, justiﬁcd
by Washington, 590 ; complaints
against, 591.
New York City, applies to the Conti-
nental Congress respecting British
troops, I. 31. Occupied by the Brit-
ish, 91. Temporary establishment
of seat of government at, effect of,
591. Celebration in, of adoption of
Constitution, 592. Honors paid by,
to Hamilton, 592.
NIeHoLAs', GEORGE, a leading advo-
INDEX.
641 ‘
cate of Constitution in Virginia, II.
506. .
Nobility, title of, cannot be granted by
Congress, II. 362.
Non-liztercourse, when and why adopt-
ed by Colonies, I. 23. Association
for, recommended and adopted, 24.
North Carolina, a provincial govern-
ment, I. 4. Constitution of, formed,
122. Appoints and instructs dele-
gates to the Convention, 369. Op-
posed to equality of suffrage in House
of Representatives, II. 138 ; to equal-
ity 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
oﬂice during “good behavior,” 173.
Vote of, respecting citizenship as
qualiﬁcation for ofﬁce, 209 ; respect-
ing money bills, 216, 218. Divided
‘ on question of nine years’ citizenship
as qualiﬁcation of Senator, 224. Op- -
posed to each State having one vote
in Senate, 227; to taxing exports,
296. Position of, in Convention, re-
specting 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 sal-
ary, 407. Convention of, Anti-Fed
eral majority in, 596 ; debate in, 596 ;
amendments to Constitution pro-
posed 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 com-
mercial powers, H.292. Chief mo-
tive of, for forming Constitution a
commercial one, 298. Cut off from
British West India trade, 298. Sep-
arate interests of, different, 300.
Northwestern Territory ceded by Vir-
ginia, I. 137, 295. Cession modi-
ﬁed, 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.
Jeﬁ‘erson’s resolve for organization
of States in, 343. Slavery in, pro-
posals for prohibiting, 343. Ceded
on what trusts, 347, 349. Admission
of new States under, see New
States.
voL. II. 81
O.
Oath, of oﬂicc, proposed by New Jer-
sey in 1778, I. 130.
Oath of Allegiance, to the King, re-
ceived by Sir William Howe in New
Jersey, I. 106. To the United States
required by \Vashington in New J er-
sey, 107 ; dissatisfaction occasioned
by, 107. Propriety of, defended by
\Vashington, 108. Prescribed in
Congress in 1778, 109.
Obligation of Contracts, clause respect-
ing, taken from the Ordinance of
1787, I. 452.
Oﬁ‘icers of United States, appoint-
ment of, II. 417.
Oﬁicers of the Revolution, treatment of,
by Congress, and the country, I. 159.
Pay of, 159. Proceedings in Con-
gress respecting half-pay for, 160.
Pennsylvania line, 163. Proceed-
ings of, respecting their pay, 165.
See Army q" the Revolution, Half-
y, and Newburgh Addresses.
ligarchy, detested by people of Unit-
ed States, II. 237.
Orders in Council, respecting trade
with the United States, I. 283. Ef-
forts 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 ad-
mitting new States, 79. Provisions
of, 344. Slavery excluded by, 344.
Author of, 344, 365. Passed, 365.
Character of, 366. Provision in, re—
specting contracts, occasion of, 366.
Extradition of slaves under, 454.
Osnaburg, Bishop of, rumored purpose
of loyalists respecting, II. 492. Af-
terwards Duke of York, 493.
P.
PAINE, Ronna'r' TREAT, delegate to
ﬁrst Continental Congress, I. 13.
PALFBEY, Colonel, sent to New
Hampshire to arrest Tories, ‘I. 65.
Paper Money, ﬁrst issued by the Con-
tinéntal Congress, I. 7 8. Signing of,
7 8. State systems of, under Confed-
eration, H. 310. See Rhode Island.
Pardon, President’spower of, II. 413.
See Treason.
Parliament, British, authority of, over
trade, how recognized by ﬁrst Conti-
642
INDEX.
nental Congress, I. 20. Two houses
in, origin of, II. 130; mutual rela-
tions of, 130. Corruption in, origin
and extent of, 242; effect of knowl-
edge of, on framers of Constitution,
243. Necessity of officers of state,
&c. sitting in, 254. Analogy of Con-
gress to, 254.
PARSONS, THEOPHILUS, motion of, in
Massachusetts Convention, to ratify
Constitution, II. 537. Form of rati-
ﬁcation 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,
9 . ‘
Peace, effect bf, 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 govern-
ment, 1. 5. Constitution of, formed,
122. Stop-law of, 253. Appoints
and instructs delegates to the Con-
vention, 368. Had but one chamber
in legislature, II. 132. Opposed to
election of Senators by State legisla-
tures, 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 in-
habitants, 153; of executive holding
oﬁice during good behavior, 173.
Opposed to property qualiﬁcation for
office, 189. Constitution of, citizen-
ship under, 206. Vote of, respecting
citizenship as qualiﬁcation for oﬂice,
209; respecting money bills, 218.
Opposed to nine years’ citizenship as
ualiﬁcation of Senator, 224; to each
tate having one vote in Senate, 227 ;
to impeachments being tried by Sen-
ate, 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, in-
surrection in, 521 ; opposition of, to
Constitution, 524.
People of America, when not associated
as such, I. 16. Solo original source
of political power, II. 38, 471,482.
Will of, how to be exercised, 471 ;
on a new exigency, how to be ascer-
tained, 483.
Petition, right of assembling for, as-
serted, I. 23. Of Continental Con-
gress 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.
PI CKERING, TIMOTHY, suggests acad-
emy at West Point, I. 218.
PINCKNEY, CHARLES CoTEswoRTH,
Revolutionary services of, I. 454.
Views of, respecting the requisite re-
form, 455; on the slave-trade, 456,
459, 460; respecting consequences
of rejection of Constitution, 487 .
Propositionv of, respecting taxes on
exports, II. 189 ; respecting extradi-
tion of slaves, 189, 452. Notiﬁes Con-
vention of position of South Carolina
concerning tax on exports, 280. In
favor of Constitution, 510. Writes
to Washington of adoption of Consti-
tution by South Carolina, 544. Fi-
delity of, to South Carolina, 545.
Arguments of, in South Carolina
convention, 548.
PINCKNEY, CHARLES, plan of gov-
ernment submitted by, H. 32. Propo-
sition of, respecting House of Repre-
sentatives, 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 Eu-
rope, 375; in England, 376; In
France, 377 .
Popular Governments, American theory
of, I. 261.
Population of States in 1790, table of, T
II. .
INDEX.
. 643
Ports, no preference to be given to,
II. 324.
Post-Oﬁice 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 appoint-
ed by, with consent of Senate, 234.
Re-eligibility of, arguments in favor
of, 235. Choice of, proposed meth-
od of, 235; by Senate, objections
to, 236, 392 ; ultimate, by House of
Representatives, 240, 394. - Revision-
ary 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 en-
tered on journal of Congress, 264.
Choice of, direct, by people, nega-
tived, 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, objec-
tions to, 393. _ Vacancy in office
of, 397 ; when Congress to provide
for, 401. “ Inability” of, to discharge
duties, meaning of, 397 ; how ascer-
tained, 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. Qual-
iﬁcations 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 fpr, ques-
tion concerning, 407. May require
opinions of cabinet oﬂicers, 408.
Alone responsible for conduct of ex-
ecutive 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, mean-
ing of, 412. Oath of, to execute laws,
412. Commander-in-chief, 413. To
prosecute war, 413. Treaty-making
power of, 414. To receive ambassa-
dors, &c., 415. Cannot create oﬂices,
418. To inform Congress of state
of Union, 419. To recommend meas-
ures to Congress, 419. May call ex-
tra sessions of Congress, 419. When
may adjourn Congress, 419.
PRINGLE, JOHN JULIUS, in favor of
Constitution, II. 510. '
Prize- Courts, want of, under the Revolu-
tionary government, I. 7 3. Establish-
ment of, ,urged by Washington, 75.
Of Massachusetts, trials in, 7 5. Co-
lonial, appeals from, to Congress, 7 6.
Under Constitution, II. 330. ’
Property, urged as basis of representa-
tion, 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. Sur-
render of, required by Washington,
106. .
Provincial Governments, form and char-
acter of, I. 4.
Public Lands. See ‘Western Territory,
Northwestern Territory, and Ordinance
of 17 87.
Q.
Qualiﬁcations, of national oﬁ’icers, pro~
posals respecting, II. 186 ;'landed, re-
jected, 187 ; prope , an embarrass-
ing subject, 202. f‘ electors, 187,
194, 200. Of voter in Massachusetts,
188. Of members of Congress, 194.
Of citizenship, embarrassments re-
specting, 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, inhabit-
ants 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 Wash--
ington to attend. the Convention, I.
365. Revolutionary services of, 480.
644
INDEX.
Regulation of Commerce
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 'appor-
tion representatives, 148. Objections
of, to compound ratio of representa-
tion, 151. Proposition of, respecting
census, 162 ; to strike out “wealt ”
from rule of representation, 164. In
favor of conﬁning equalityof States
in Senate to certain cases, 165.
Views of, respecting money bills,
218. Resolution of, respecting ad-
mission of new States, 349. Clause
introduced by, respecting death of
President, &c., 403. Refused to sign
Constitution, why, 485, 555. Posi-
tion 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 mark-
ing character of government, H. 85.
Different theories respecting, l7 7.
Mode of, 375 ; resolutions respecting,
375; purpose of, 37 5; an embarrass-
ing question, 479. Vote of States
res ecting, 483, 515. B only part
of tates, effect of, 484. nanimous,
could not be required, 484. By nine
States sufficient, 485. Pageants in
honor of‘, 540. Public rejoicings in Bal-
timore 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 Repre-
sentatives, II. 135.
roposed by
New Jersey in 1778, . 129. Not
provided for by the Confederation,
148. Advantages of, not perceived,
179. Origin of, as a national power,
276- Washington’s views respect-
ing, 334. Popular meetings in Bos-
ton 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; diﬂicult in ﬁxing ratio of, 44. As
affected by State interests, 43. Origi-
nal division between States respect—
ing, 50. Under Virginia and New
Jersey plans, 105. Great difficulty
in adjusting, 1,08. Difficulty of ﬁx-
ing different basis of, for two houses
of Congress, 133. Committee to ad-
just whole system of, 145. Dr. Frank-
lin’s proposal in Congress concern-
ing, 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, pro~
posed by Constitution, discussion on
in New York, 573.
Representatives, part of the Provincial
government, I. 4. In the charter gov-
ernments, how chosen, 5. Appor-
tionment of, objections to, II. 1.48 ;
in ﬁrst House, how made, 148.
Representative Government familiar to
the American people, I. 117.
Reprisals authorized by the Continen-
tal 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, 1.147. 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 - 17 86, 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, gen-
erally conceded to new government,
290. Different systems of, under
Confederation, 310. Powers of gov-
INDEX.
645
ernment, inﬂuence of, 311. Power,
qualiﬁcations of, proposed, 320.
From imports, easiest mode of pay-
ing 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 re-
specting, 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 sub-
ject 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 ac-
cede, 248. Action of New York rc-
specting, 343. Final appeal of Con-
gress for, 344. Rejected by New
York, 345, 359. Address on, writ-
ten 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 Con-
stitutional 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 repre-
sentative in ﬁrst House, 149. Rati-
ﬁcation of Constitution by, improb-
able, 181. Reason of, for not attend-
ing Convention, 329. Took no part
in formation of‘ Constitution, 484.
Opposition to Constitution in, pecu-
liarly intense, 598; causes of, 598.
Jealous of other States, 598. Prin-
ciples of founders of, falsely ap-
plied, 598. Paper money party in,
great power of, 599. Great antago-
nism in, between town and country,
600. Opponents of Constitution in,
ridiculed and scorned, 600. Great
want of enlightenment in, 601. Ac-
tion of General Assembly of, on Con-
stitution, 602. People of, apparently
nearly unanimous against Constitu-
tion, 602. Final prevalence of bet-
ter counsels in, 603. Present pros-
perity of, 603. Attitude, of, placed
Union in new crisis, 603.
Rights. See Colonies.
ROBINSON, Mr., Speaker of Virginia
House of Burgesses, I. 48. Cele-
brated compliment of, to Washing-
ton, 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 com-
mittee 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 estab-
lishing at New York, or Philadel-
phia, 591, "Embarrassments attend-
ing selection of, 604.
Sectional Jealousy, causes and opera-
tion of, I. 371.
SELMAN, captain in the Revolutionary
naval force, I. 74.
Senate, reasons for present constitu-
tion 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,
646
INDEX.
134, 223. Objects of, 138; how to
be attained, 138. Diiﬁculty 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 ; rep-
resentation in, 165. Advantages of
present constitution of, 166. Mem-
bers 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 Presi-
dent 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. Va-
cancies in, how ﬁlled, 229. Primary
purpose of, 229. Disposition to ac-
cumulate power in, 230. Constitu-
tion of, great embarrassments respect-
ing, 233. Separate action of, diﬂicult
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 am-
bassadors and judges by, 410. For-
eign 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. Equal-
ity of States in, guaranteed by Con-
stitution, 478.
Slzays’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
(5)21 opposed to Constitution, II.
SHERMAN, ROGER, one of the com-
mittee to prepare Declaration of In-
dependence, I. 50. Opposed to tax
on exports, II. 294. Views of, re-
specting tax on slaves, 304. Motion
of, respecting payment of old debts,
321.
Slavery, British government responsi-
ble for the existence of, I. 87. Com-
plex 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 Constitu-
tion, 313. Facts respecting, as inﬂu-
encing 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 dura-
tion 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 repre-
sentation, 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 inhabit»
ants, 47. Three-ﬁfths rule respecting,
whence derived, 48. In ﬁxing ra-
tio of representation, how comput-
ed, 147; admission of, proper, 147.
Propriety of counting, as inhabitants,
in adjusting representation, 150.
Rule respecting, under Confedera-
tion, 150. As affecting representa-
tion, votes respecting, 153. Social
and political condition of, anomalous,
155. Number and distribution of,
155. An important element in de-
termining rank of States, 155. As
affecting representation and taxation,
157. As subjects of taxation, views
of statesmen respecting, 159. Com-
promise respecting, how to be effect-
ed, 163. Extradition of, Pinckney’s
proposition concerning, 189. Manu-
mission of, amatter of State con-
INDEX.
647
trol, 286. Representation of, a con-
cession by North, why made, 292 ;
Morris’s motion respecting, 293 ; vote
of New Jersey respecting, 293. Spe-
ciﬁc 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 concern-
ing, 316. Colonization of, in Africa,
317.‘ Representation of, an unimpor-
tant anomaly, 317. Emancipation
of, a local question, 317. Extra-
dition of, under Constitution, history
of clause respecting, 450; a neces-
sary 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 un-
der 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.
Abolishcd in England, 457, 461.
French abolition of, 457. Danish
abolition of, 459. Compromise rc-
specting, 460. Legislation against,
460. Discussions respecting, in Eng-
land,460. Probable encouragement
of, II. 153; embarrassments respect-
ing, 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 17 87,
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. Pa-
triotic course of both sections re-
specting, 306. Effect of discontinu-
ance of‘, on Southern States, 308.
State rights respecting, before Con-
stitution, 314. Tolerated by Euro-
pean nations at formation of Consti-
tution, 314. Interdicted by ten States
before Constitution, 314. Refusal of
certain States to grant power to sup~
press, immediately, 315. Indeﬁnite
continuance of, had Constitution not
been formed, 315. First extinguished
by America, 317.
South Carolina, a provincial govern-
ment, I, 4. Constitution of, formed,
120. Tender-law of, 253. Appoints
and instructs delegates to the Con-
vention, 369. Opposed to equality
of suffrage in House of Representa-
tives, 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, re-
specting 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 Con-
vention, respecting slave-trade, 297,
301. Vote of, respecting slave-trade,
305. Vote on Jeﬂ'erson’s resolve
concerning Northwestern Territory,
346. Cession by, in 1787, 356.
Vote of, on suspension of habeas cor-
pus, 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 Constitu-
tion, 511; importance of action of,
542. Ratiﬁcation of Constitution
by, 544; rejoicings at, 544 ; impor-
tance of, 544. Delegates of, respon-
sibility assumed by, 544. A great
exporting State, 546. Hesitation of,
to concede power to regulate com-
merce, 546. Amendments to Con-
stitution proposed by, 548. Eighth
State to ratify Constitution, 549.
Southern States, views of, respecting
regulation of commerce, H. 290.
Sovereignty, of the people, established
by the Revolution, I. 379; necessary
consequences of declaration of, II.
8. Besides in the people, 38. Pow-
ers of, may be exercised by different
agents, 37 7.
Spain, claims the exclusive navigation
648
INDEX.
of the Mississippi, I. 312. See Mis-
sz'ssz'ppz'.
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, 11. 5. Devotion of,
to republican liberty, 6. Union of,
essential to republican liberty, 9.
Weakness of, without union, 9.
General purposes of, in calling Con-
stitutional Convention, 16. Position
of, in Convention, 27. Powers sur-
rendered by, to Confederation, 27.
Why represented in Congress, 40.
Diverse interests of, as affecting rep-
resentation, 43. Tendency of, to en-
croach on federal authority, 51. Pro-
posed control over legislation of, by
Congress, 52. Population of, in 1790,
table of, 55. Legislation of, control
of judicial department over, 66. Ad-
mission 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 sur-
render of power under Virginia
plan, 95. Sovereignty of, preserved
under New Jersey plan, 95. Con-
ﬂicts of, with nation, probable, un-
der Virginia plan, 102, 103. Strug-
gle between large and smaller, re-
specting representation, 104. Pro-
posed equalization of, 108. Popu-
lations of, at formation of Constitu-
tion, 116. Relative rank of, at for-
mation of Constitution, 117 . Con-
ﬂict among, as to national and fed-
eral systems, 117. Danger of anni-
hilation of sovereignty of, by national
government, 128, 377. Danger of
alliances of, with foreign powers, 136.
Preservation of, in Congress, conced-
cd to be necessary, 139. Divided re-
specting 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 Conven-
tion, respecting slaves, 161, 162.
'Wealth of, for purpose of taxa-
tion‘, determined by inhabitants, 163.
Smaller, concession to, in constitu-
tion of Senate, 166. Free and slave,
populations of, compared, 168. Re-
lation of, to Confederation, 179.
Whether Constitution could be rati-
ﬁed by government of, 180. Voting
by, history of practice of, 227. Equal
representation of, in Senate, just, 233.
Union desired by, from different mo-
tives, 303. Commercial legislation
of, under Confederation, various, 310.
Revenue and paper-money systems
of, under Confederation, various, 310.
Rights guaranteed to, by Constitu-
tion, 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 Con-
federation, 347. New, temporary
governments for, Madison’s motion
respecting, 351. Admission of, num-
ber 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 im-
posts 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. Constitu-
tional restrictions on, 432. Laws of,
constitutionality of, how determined,
439. Courts of, not likely to admin-
ister justice to foreigners, &c., 442.
Different, controversies between citi-
zens of, 442; grants of lands by,
jurisdiction of cases respccting,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 govern-
ment in case of, 469. Competency
of, to abolish constitutions, 469.
Must have executive and legislature,
470. Protection of, against domestic
INDEX.
649
violence, 472. Equality of, in Senate,
for ever guaranteed by Constitution,
478. Refusal of, to comply with
requisitions of Congress, 57 2. See
New States.
State Constitutions, formation of, I. 116 .
State Governments, how formed, I. 36.
State Sovereignty, early assertion of, I.
90 1
Stop Laws. See Debts.
STORY, JOSEPH, views of, respecting
President’s power to adjourn Con-
gress, II. 420.
Suﬁ‘rage, Rule of, Governor Randolpb’s
resolution respecting, II. 35. Change
in, opposed by Delaware, 36. In
Continental Congress, 42. In Con-
federation, 42. In Senate, 48. For
House of Representatives, great de-
bate 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 Mas-
sachusetts, II. 541.
Superintendent of the Finances, ap-
pointed, I. 174. See ROBERT MOR-
RIs.
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 deter-
mine constitutional questions, 74.
Functions of, compared with those of
State courts, 74. Judges of, propos-
ed appointment of, by Senate, 223,
230, 410. Appointment of, propo-
sals concerning, 234. Sole interpre—
ters of Constitution, 380. Judges of,
to be nominated by President, 418;
tenure of office and salaries of, 423.
One, under Constitution, 423. Origi-
nal and appellate jurisdiction of, 424.
Appellate jurisdiction of, ambiguity
concerning, 428. Doubts about con-
ferring power upon, to declare law
unconstitutional, 434.
T.
TALLEYRAND, Prince, opinion of, re-
specting Hamilton, 1. 410.
vOL. II. 82
Taxation, right of, denied to Parlia-
ment, 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. Re-
port of committee of detail respect-
ing, 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, un-
der the Confederation, I. 141. An-
thority of Congress over, under Con-
stitution, II. 340 ; purpose of provis-
ion respecting, 355; diverse views
concerning, 358. See Western Ter-
ritory and Northwestern Territory.
Territorial Governments, power to
frame; in Ordinance of1787, II. 345.
Theory, danger of adhering too ﬁrmly
to, II. 129.
THOMPSON, CHARLES, Secretary of
ﬁrst Continental Congress, I. 14.
TIOKNOR, GEORGE, cited fora saying
of Jefferson concerning the Revolu-
tionary Congress, I. 64; for a saying
of Talleyrand about Hamilton, 410.
Tonnage, duty on, States prohibited to
lay, II. 370; proposed exception re-
specting, 370.
Tories, how dealt with by Continental
Congress, I. 36; in New Hampshire,
65. Washington’s opinion respecting,
65. Movements of, in the neighbor-
hood of New York, 66; how met by
Washington, 66. Steps taken by
Congress to disarm, 68. Misunder-
standing respecting, between Wash-
ington and Congress, 69. Subject
referred to local authorities, 72. Re-
lations of persons and property of, to
the Union, 251.
Trade, inter-colonial, before the Revo-
lution, I. 9. Regulation of, by Par-
liament, distinguished from taxation,
20. With Colonies prohibited by
Parliament, December, 1 7 75, 38. See
Colonies, Commerce, Continental Con-
gress, and ‘Parliament.
‘reason, deﬁnition of, in Constitution,
origin and purpose of, II. 384. Na-
ture of evidence of, 386. Punish-
650
INDEX.
ment 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 Nether-
lands, I. 27 9. Negotiation for, with
the Netherlands, 280; with Sweden,
281.
Treatyty’ Alliance with France, I. 156.
Treaty of Peace signed and ratiﬁed,
I. 155, 187, 235, 237. Objects se-
cured 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 concern-
ing, 234. Provision respecting, ori-
gin 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. Pro-
vision for, in civil cases, not in Con-
stitution originally, 427 ; supplied by
amendment, 427. Guaranty of, re-
quired by many States, 429. For
crimes, provisions respecting, 431.
Omission to secure, a strong argu-
ment with some against Constitution,
498.
TUCKER, GEORGE, cited about Madi-
son, I. 421.
TYLER, JOHN, opposed to Constitu-
tion, 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 Con-
federation, 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 indepen-
dence 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 pow-
er in, to protect and uphold govern-
ments 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 attributa-
ble, 380. Sovereignty of, and of
States, no conﬂict between, 380. Ca-
pacity of, for territorial expansion,
cause of, 381. Theory of, respecting
domestic institutions of States, 451.
“ United Colonies,” term of, ﬁrst adopt-
ed, I. 33.
United States of America, title of,
adopted, 1. 52, 142.
United States, character of, at stake, I.
179. Laws and treaties of, supreme
law of States, II. 170, 372. Guar-
anty 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. Reso-
lutions respecting supremacy of gov-
ernment of, 372, 373. Supremac of,
meaning and scope of, 376. ov-
ernment of, unlike any other, 379 ;
determines its own powers, 37 9; safe-
guard of, 379; success of, to what
attributable, 379. Constitution, no
impediment to growth of, 383. Trea-
son against, deﬁnition of, 385. Im-
portance of preserving federal char-
acter of government of, 392. Rela-
tion of government to citizens of,
432. A party to a suit, jurisdiction
of cases of, 444.
V.
Valuation. See Land and C'ontrzbutz'on.
Vermont, provision for admission of,
INDEX.
651
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 sig-
niﬁed, 265; in disuse since William
the Third, 266. History of, in Con-
stitutional Convention, 267. Mean-
ing of “ two thirds” in provisions rc-
specting, 267. Power of, proposed to
be given to Council of Revision, 438.
Vice-President, ex oﬁicio President of
Senate, II. 264. Has only casting vote
in Senate, 264, 396. . Choice of, em-
barrassments respecting, 390. Rea-
sons for having, 395. Ultimate elec-
tion 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. Op-
poses 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; Ham-
ilton’s doubts respecting, 99; incon-
sistency 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 oﬁice during “good behav-
ior,” 173. Vote of, respecting citi-
zcnship as qualiﬁcation for oﬁice,
209; money bills, 216, 218. ‘Opposed
to each State having one vote in Sen-
ate, 227 ; to impeachments being tried
by Senate, 262; to taxing exports,
296. Vote of, respecting slave-trade,
_ peace, 371 .
305. Cession by, in 1784, 342.
Strong opposition to Constitution
in, 504. Statesmen of, 504. Char-
acter of people of, 504. "Great inﬂu-
ence 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. Con-
vention of, . ﬁnal propositions of
friends of Constitution in, 57 9. Rat-
iﬁcation of Constitution by, how
ﬁnally effected, 57 9. Form of
amendments and Bill of Rights pro-
posed by, 581. Address prepared by
opponents of Constitution in, 582.
Adoption of Constitution by, rejoic-
ings 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 Con-
gress, II. 231. To be declared by
Congress, 332, 413. When States
may engage in, 371. Ships of, not
to be kept b States in time of
nd peace, power of
President to make, 411. To be
prosecuted by President, 413.
WASHINGTON, appointed and com-
missioned eommander-in-chief, I. 33.
Arrives at Cambridge, 33. Mode of
his appointment as commander-in-
chief, 41. Previous history and char-
acter of, 41. Embarrassments of, in
the early part of the war, 55. Opin-
ions aud actions of, respecting Tories,
65. Urges Congress to establish rize
court, 75. On the necessity lgdr 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 extra-
ordinary powers, 100. Dictatorial
powers conferred on, 100; apology
652
INDEX.
for, 101. Requires oath of allegiance
to United States, 106. Proclamation
by, at Morristown, in 1777, 106.
Powers conferred on, in 17 76, jeal-
ousy respecting, 106. Opinion of,
respecting an oath of allegiance, 108.
Third effort of, to raise a new ar-
my, 109. Embarrassments of, 110.
T warted by the local authorities,
112. Adheres to a plan for the cam-
paign, 112. Anxious about the fall-
ing off of Congress, 127. Letters of,
to the States, in 1782, 157 ; to the
President of Congress, 158, 162. Sit—
uation of, 158. Warns Congress re-
specting 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. Re-
signs as commander-in-chief, 235.
Address to, 235. On the insurrec-
tion in Massachusetts, 274. Plans
communications with Western settle-
ments, 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 Conven-
tion, 341. Pressed to attend the gen-
eral 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; reconsid-
ers and attends, 399. Reception of,
at Philadelphia, 401. Placed in the
chair of the Convention, 401. Opin-
ions of, 401. Character of, as astates-
man, 404. Meets the Alexandria
commissioners at Mount Vernon,
425. Failure of civil power to sus-
tain, H. 14. Diﬂiculty experienced
by, as President, in preserving neu-
trality and excluding foreign inﬂu-
ence, 82. In Convention, conﬁned
himself to duties of presiding officer,
213. Suggestion of, respecting ratio
of representation in Congress, adopt-
ed, 213. In favor of tax on exports,
284. Early nominated for President,
391. Received no pay as command-
er-in-chief, 405. Practice of, respect-
ing cabinet, 409. Leading man in
Constitutional Convention, 476. Tra-
dition 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 expres-
sion of opinion, 509. Opinion of,
respecting action of Maryland on
Constitution, 542. Not a member
of Virginia convention, 551. J usti-
ﬁes course of Federalists in New
York convention, 590. Administra-
tion of, topics appropriate to history
of, 604.
Washington, City of, an object of affec-
tion and pride, II. 27 7. See Seat of
Government.
WEBSTER, DANIEL, compared with
Hamilton, I. 419.
WEBSTER, Noan, recommends a new
government, I. 350.
WEBSTER, PELATIAH, recommends a
general Convention, I. 350.
IVez'g/zts and Zileasures, 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. Ces-
sions 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 charac-
ter of, II. 300. Vast resources of,
310.
Western Territory, controversy respect-
ing, 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 Con-
gress to deal with, 293. Cession of,
by New York, 293; by Virginia, 295.
Further legislation respecting, and
further trusts declared, 296. Admis-
INDEX.
653
sion of States from, 298. Further
cessions of, urged, 299. Proposition
by Rufus King to exclude slavery
from, 299. Cession of, by Massa-
chusetts, 299 ; by Connecticut, 300.
Ordinance for disposing of lands in,
300. Cessions of, by Virginia, mod-
iﬁed, 300; by South Carolina, 301;
by North Carolina, 301 ; by Georgia,
301. See Northwestern T erritoiy.
West Indies, trade with, II. 309.
lVhale F ishety in Massachusetts before
the Revolution, I. 135.
Williamsburg, convention at, I. 12.
WILLIAMSON, HUGH, views of, re-
specting rule of suffrage for House
of Representatives, II. 135; money
bills, 218.
WILSON, JAMES, birth and career of, I.
462. Sent to the Constitutional Con-
vention,462. Services of, 462. Made
a justice of the Supreme Court of the
THE
United States, 465. Death of, 465.
His defence of the Constitution, 465.
In favor of larger House of Repre-
sentatives, II. 213; tax on exports,
284. One of the ablest framers of
the Constitution, 520. Position and
arguments of‘, in Pennsylvania con-
vention, 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.
END.
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