REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--GUARANTY OF
REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO
SUPPORT THE CONSTITUTION.--MODE OF AMENDMENT.--RATIFICATION
AND ESTABLISHMENT OF THE CONSTITUTION.--SIGNING BY THE MEMBERS
OF THE CONVENTION.
Purpose of the Guaranty of Republican Government 468
Meaning of the Guaranty 469
American Sense of a "Republican" Government 471
Amendment a Conservative Element 473
Distinction between Amendment and Revolution 473-474
Settlement of the Mode of Amending the Constitution 474-477
Restrictions on the Power of Amendment 477, 478
Oath to support the Constitution 478
Establishment of the Constitution provided for 479-485
Signatures of the Delegates 485-487
The Issue presented 487
BOOK V.
ADOPTION OF THE CONSTITUTION.
CHAPTER I.
GENERAL RECEPTION OF THE CONSTITUTION.--HOPES OF A REUNION
WITH GREAT BRITAIN.--ACTION OF THE CONGRESS.--STATE OF FEELING
IN MASSACHUSETTS, NEW YORK, VIRGINIA, SOUTH CAROLINA,
MARYLAND, AND NEW HAMPSHIRE.--APPOINTMENT OF THEIR
CONVENTIONS.
Public Anxiety 491
Rumors about the Bishop of Osnaburg 492
Scheme of the Tories 493, 494
Publication of the Constitution 495
Its Friends and Opponents 495, 496
Position of the People 497, 498
Reception of the Instrument in Congress 499
Action upon it 500
Reception in Massachusetts 501
Reception in New York 502-504
Reception in Virginia 505, 506
Jefferson's Opinion 506, 507
Course recommended by Jefferson 508
Washington's Exertions 509
Patrick Henry's Course in the Legislature 510
Debate in the Legislature of South Carolina 511
Action of the Legislature of Maryland 512
Luther Martin's Address 512-514
State of Opinion in New Hampshire 514
The real Crisis anticipated 515
Chances for the Constitution 516
Uncertainty of the Result 517
CHAPTER II.
RATIFICATIONS OF DELAWARE, PENNSYLVANIA, NEW JERSEY, GEORGIA,
AND CONNECTICUT, WITHOUT OBJECTION.--CLOSE OF THE YEAR
1787.--BEGINNING OF THE YEAR 1788.--RATIFICATION OF
MASSACHUSETTS, THE SIXTH STATE, WITH PROPOSITIONS OF
AMENDMENT.--RATIFICATION OF MARYLAND WITHOUT OBJECTION.--SOUTH
CAROLINA, THE EIGHTH STATE, ADOPTS, AND ADOPTS, AND PROPOSES
AMENDMENTS.
Delaware ratifies unanimously 518
_Prestige_ of Philadelphia 519
James Wilson in the Convention of Pennsylvania 520
His Defence of the Constitution 521-524
Ratification of Pennsylvania 524
Position of New Jersey 524, 525
Ratifies the Constitution 526
Position of Georgia 526
Ratifies the Constitution 527
Convention of Connecticut 527, 528
Her Adoption 529
New Aspect of the Subject 529, 530
Convention of Massachusetts assembles 530
Nature of her Opposition 531
Value of her State Constitution 532
Parties in her Convention 532, 533
Samuel Adams and the Opposition 533, 534
The Federal Leaders 534
They recognize the Necessity for Amendments 535
Dangers of this Admission 535, 536
Hancock proposes the Amendments 537
Ratification procured by them 538
Conduct of the Minority 539
Nature of the Amendments 539, 540
The People of Boston rejoice 540
Influence of Massachusetts on New Hampshire 541
Critical Position of Maryland 542
Her Ratification 543
Rejoicings in Baltimore 543
Good News from South Carolina 544
Liberal Conduct of her People 544, 545
Defence of the Constitution by her Delegates 546
The Convention admits the Justice of the Commercial Power 547
Efforts of the Opposition 548
Charleston celebrates the Constitution 548
CHAPTER III.
RATIFICATIONS OF NEW HAMPSHIRE, VIRGINIA, AND NEW YORK, WITH
PROPOSED AMENDMENTS.
New Hampshire, Virginia, and New York are to act in the
same Month 549
Hamilton's Expresses arranged 550
Virginia Convention meets 551
Patrick Henry leads the Opposition 552
His peculiar Tendencies 553
Character of his Politics 554
Edmund Randolph's Position 555
Unexpectedly supports the Constitution 556
George Mason on the Power of Direct Taxation 557
Henry denounces the Constitution 558
Madison defends it 559
He denies the Dangers imputed to it 560
Henry vouches the Advice of Jefferson 561
Jefferson's Advice misconstrued 562
Henry persists in pressing his View of it 563
It strengthens the Opposition 564
They employ the Mississippi Question 565
True Aspect of that Question 566
Madison's Answer to the Opposition 567
Negotiations opened with the Anti-Federalists of New York and
Pennsylvania 568
The Convention of New York assembles 568
Hamilton at the Intersection of his Expresses 569
His Critical and Responsible Position 569, 570
Nature of his Ambition 570, 571
His Opinion of the Purposes of the Opposition 571
His Answer to their Plans 572
He receives News of the Ratification by New Hampshire 573
Chancellor Livingston announces the Ratification of the Ninth
State 574
The Opposition not subdued 574
Hamilton's Conduct at this Crisis 575-578
He despatches a Courier to Richmond 578
But the Constitution is ratified before the Courier arrives 578
How its Ratification was obtained 579-581
Henry's magnanimous Submission 581
The News from Virginia received at Philadelphia 582
Elaborate Procession in Honor of the Constitution 583
Hamilton receives the News from Virginia 584
He consults his Friends 585
They force the Opposition to an Issue 586
Hamilton advises with Madison 587
An Unconditional Ratification carried 588
The Federalists unite in a Call for a Second General Convention 588
Their Justification for so doing 589-592
The City of New York celebrates the Adoption of the
Constitution 592
Honors paid to Hamilton by the People 592-595
CHAPTER IV.
ACTION OF NORTH CAROLINA AND RHODE ISLAND.--CONCLUSION.
Convention of North Carolina assembles 596
Refuses to ratify the Constitution 597
Elements of the Opposition in Rhode Island 598
Local Parties in the State 599
Town and Country divided 600
Spirit of a Majority of the People 600, 601
They reject the Constitution 602
Embarrassing Position of the Union 603
Conclusion 604
APPENDIX.
Constitution of the United States of America 607
Articles in Addition to, and Amendment of, the Constitution of
the United States of America 619
INDEX 633
BOOK IV.
FORMATION OF THE CONSTITUTION.
CHAPTER I.
PRELIMINARY CONSIDERATIONS.--ORGANIZATION OF THE CONVENTION.--POSITION
OF THE STATES.--RULE OF INVESTIGATION.
After long wanderings through the struggles, the errors, and the
disappointments of the earlier years of our constitutional history, I
now come to consider that memorable assembly to which they ultimately
led, in order to describe the character of an era that offered the
promise of a more vigorous nationality, and presented the alternative
of final dissolution. How the people of the United States were enabled
to seize the happy choice of one of these results, and to escape the
disasters of the other, is to be learned by examining the mode in
which the Constitution of the United States was framed.
In approaching this interesting topic, I am naturally anxious to place
myself at once on a right understanding with the reader,--to apprise
him of the purpose of the discussions to which he is invited, and to
guard against expectations which might be entertained, but which will
not be fulfilled.
In a work designed for general and--as I venture to hope it may
prove--for popular use, it would be out of place, as it certainly
would be impracticable within the limits of a single volume, to
undertake the explanation and discussion of all those particular
questions of construction that must constantly arise under almost
every clause and feature of such an instrument as the Constitution of
the United States, and which, as our whole experience has taught us,
are fruitful both of extensive debate and of wide as well as honest
diversities of opinion. I shall consider questions of construction
only so far as may be necessary to elucidate my subject; for I
propose, in writing the history of the formation of the Constitution,
to describe rather those great modifications in the principles and
structure of the Union that took place in the period at which we have
now arrived in the course of this work; to state the essential
features of the new government; and to trace the process by which they
were evolved from the elements to which the framers of that government
resorted.
Happily for us, the materials for such a description are ample. The
whole civil change which transformed the character of our Union, and
established for it a national government, took place peacefully and
quietly, within a single twelvemonth. It was attended with
circumstances which enable us to ascertain its character with a high
degree of certainty. The leading purposes that were entertained and
carried out were not left to the conjecture of posterity, but were
recorded by deliberative assemblies, whose acts of themselves
expressed and ascertained the objects and intentions of the national
will. First framed by an assembly in which the States participating in
the change were fully represented, and subsequently debated and
ratified in conventions of the people in the separate States, the
general nature and design of the Constitution may be traced and
understood without serious difficulty.
But to the right understanding of its nature and objects, a careful
examination of the proceedings of the national Convention is, in the
first place, essential. Before we enter, however, upon this
examination, there are certain preliminary facts that explain the
circumstances in which the Convention was assembled, and which will
enable us to appreciate the results at which it arrived. To these,
therefore, the reader is now desired to turn.
First of all, then, it is to be remembered that the national
Convention of 1787 was assembled with the great object of framing a
system of government for the united interests of the thirteen States,
by which the forms and spirit of republican liberty could be
preserved. The warnings and teachings of the ten preceding years,
which I have attempted to describe in a previous volume, had presented
to the people of these States the serious question, whether their
system of conducting their common affairs then rested upon principles
that could secure their permanent prosperity and happiness. That the
States had national interests; that each of them stood in relations to
the others, and to the rest of the world, which its separate and
unaided power was unable to manage with success; and that even its
own internal peace and prosperity required some external
protection,--had been brought home to the convictions of the people by
an experience that commenced with the day on which they declared
themselves independent, and had now forced upon them its last stern
and sorrowful lesson in the general despondency of the national heart.
As they turned anxiously and fearfully to the near and dear interests
involved in their separate and internal concerns, they saw that
self-government was a necessity of their existence. They saw that
equality before the law for the whole people; the right and the power
to appoint their own rulers; the right and the power to mould and form
and modify every law and institution at their own sovereign will,--to
lay restraints upon their own power, or not to lay them,--to limit
themselves by public compact to a particular mode of action, or to
remain free to choose other modes,--were the essential conditions of
American society. In a word, they beheld that republican and
constitutional liberty, which, with all that it comprehends and all
that it bestows, was not only altogether lovely in their eyes, but
without which there could be no peace, no social order, no
tranquillity, and no safety for them and their posterity.
This liberty they knew must be preserved. They loved it with
passionate devotion. They had been trained for it by the whole course
of their political and social history. They had fought for it through
a long and exhausting war. Their habits of thought and action, their
cherished principles, their hopes, their life as a people, were all
bound up in it; and they knew that, if they suffered it to be lost,
there would remain for them nothing but a heritage of shame, and ages
of confusion, strife, and sorrow.
Great as was their devotion to this republican liberty, and ardent as
was their love of it, they did not value it too highly. The doctrine
that all power resides originally in the people; that they are the
source of all law; that their will is to be pronounced by a majority of
their numbers, and can know no interruption,--was not first discovered
in America. But to this principle of a democracy the people of the
American States had added two real and important discoveries of their
own. They had ascertained that their own power might be limited by
compacts which would regulate and define the modes in which it shall be
exercised. Their written constitutions had taken the place of the royal
charters which formerly embraced the fundamental conditions of their
political existence, but with this essential difference,--that whereas
the charter emanated from a foreign sovereign to those who claimed no
original authority for themselves, the constitution proceeded from the
people, who claimed all authority to be resident in themselves alone.
While the charter embraced a compact between the foreign sovereign and
his subjects who lived under it, the constitution, framed by the people
for their own guidance in exercising their sovereign power, became a
compact between themselves and every one of their number. In this
substitution of one supreme authority for another, some limitation of
the mode in which the sovereign power was to act became the necessary
consequence of the change; for as soon as the people had declared and
established their own sovereignty, some declaration of the nature of
that sovereignty, and some prescribed rules for its exercise, became
immediately necessary, and that declaration and those rules became at
once a limitation of power, extending to every citizen the protection
of every principle involved in them, until the same authority which had
established should change them.
Against the evils, too, that might arise from the unrestricted control
of a majority of the people over the fundamental law,--against the
abuse of their power by frequent and passionate changes of the rules
which limit its exercise for the time being,--they had discovered the
possibility of limiting the mode in which the organic law itself was
to be changed. By prescribing certain forms in which the change was to
be made, and especially by requiring the fact, that a change had been
decreed by those having a right to make it, to be clearly and
carefully ascertained by a particular evidence, they guarded the
fundamental law itself against usurpation and fraud, and greatly
diminished the influences of haste, prejudice, and passion.
Such was the nature of American republican liberty; not then fully
understood, not then fully developed in all the States, but yet
discovered,--a liberty more difficult of attainment, more elaborate in
its structure, and therefore more needful of defence, than any of the
other forms of constitutional freedom under which civilized man had
hitherto been found.
Now, the fate of republican liberty in America, at that day, depended
directly upon the preservation of some union of the States, and not
simply upon the existing State institutions, or upon the desires of
the people of each separate State. It is true, that their previous
training and history, and their own intelligent choice, had made the
States, in all their forms and principles, republican governments; and
almost all of them had, at this period, written constitutions, in
which the American ideal of such governments was aimed at, and more or
less nearly reached. But how long were these constitutions, these
republican forms, to exist? What was to secure them? Who was to stand
as their guarantor and protector, and to vindicate the right of the
majority to govern and alter and modify? Who was to enforce the rules
which the people of a State had prescribed for their own action, when
threatened by an insurgent and powerful minority? Who was to protect
them against foreign invasion or domestic violence? There was no
common sovereign, or supreme arbiter, to whom they could all alike
appeal. There was no power upon this broad continent to whom the
States could intrust the duty of preserving their institutions
inviolate, except the people of the United States in some united and
sovereign capacity. No single State, however great its territory or
its population, could have discharged these duties for itself by its
unaided power; for no one of them could have repelled a foreign
invasion alone, and the government of one of the most respectable and
oldest of them, whose people had exhibited as much energy as any other
community in America, had almost succumbed to the first internal
disorder which it had been forced to encounter.
The preservation of the Union of the States was, therefore, essential
to the continuance of their independence, and to the continuance of
republican constitutional liberty,--of that liberty which resides in
law duly ascertained to be the authentic will of a majority. With this
vastly important object before them, the people of the States of
course could give to the Union no form that would not reflect the same
spirit, and harmonize with the nature of their existing institutions.
To have left their State governments resting upon the broad basis of
popular freedom acting through republican forms, and to have framed,
or to have attempted to frame, national institutions on any other
model, would have been an act of political suicide. To enable the
Union to preserve and uphold the authority of the people within the
respective States, it must itself be founded on the same authority,
must embody the same principles, spring from the same source, and act
through similar institutions.
Accordingly, the student of this portion of our history will find
everywhere the clearest evidence that, so far as the purpose of
forming a national government of a new character was entertained at
the period when the Convention was assembled, a republican form for
that government was a foregone conclusion. Not only did no State
entertain any purpose but this, but no member of the Convention
entered that body with any expectation of a different result. There is
but one of the statesmen composing that assembly to whom a purpose of
creating what has been called a monarchical government has ever been
distinctly imputed; and with regard to him, as much as to every other
person in the Convention, I shall show that the imputation is unjust.
Hamilton,--for it is to him of course that I now allude,--together
with many others, believed that a failure, at that crisis, to
establish a government of sufficient energy to pervade the whole Union
with the necessary control, would bring on at once a state of things
that must end in military despotism. Hence his efforts to give to the
republican form, which he acknowledged to be the only one suited to
the circumstances and condition of the country, the highest degree of
vigor, stability, and power that could be attained.
Another very important fact, which the reader is to carry along with
him into the examination of the proceedings of the Convention, is,
that by the judgment of the old Congress, and of every State in the
Union save one,[1] the Confederation had been declared defective and
inadequate to the exigencies of government, and the preservation of
the Union. That this declaration was expressly intended to embrace the
principle of the Union, or looked to the substitution of a system of
representative government, to which the people of the States should be
the immediate parties, in the place of their State governments, does
not appear from the proceedings which authorized and constituted the
Convention. In substance, those proceedings ascertained that there
were great defects in the existing Confederation; that there were
important purposes of the federal Union which it had failed to secure;
and that a Convention of all the States, for the purpose of revising
and amending the Articles of Confederation, was the most probable
means of establishing a firm general government, and was therefore to
be held. But what were the original purposes of the Union, or what
purposes had come to be regarded as essential to the public welfare,
was not indicated in most of the acts constituting the Convention.
Virginia, whose declaration preceded that of Congress and of the other
States, and on whose recommendation they all acted, had made the
commercial interests of the United States the leading object of the
proposed assembly; but she had also declared the necessity of
extending the revision of the federal system to all its defects, and
had advised further concessions and provisions, in order to secure the
great objects for which that system was originally instituted. These
general and somewhat indefinite purposes were declared by the other
States, without any material variation from the terms employed by
Virginia.[2]
Hence it is that the previous history of the Union becomes important
to be examined before we can appreciate the great general purposes of
its original formation, as they were understood at the time of these
proceedings, or can appreciate the further purposes that were intended
to be engrafted upon it. The declarations made by the Congress and the
States seem obviously to embrace two classes of objects; the one is
what, in the language of Virginia, they conceived to have been "the
great objects for which the federal government was instituted"; the
other is the "exigencies of the Union," for peace as well as for war,
as they had been displayed and developed by the defects of the
Confederation, and by its failures to secure the general welfare. The
first of these classes of objects could be ascertained by reference to
the terms and provisions of the Articles of Confederation; the second
could only be ascertained by resorting to the history of the
confederacy, and by regarding its recorded failures to promote the
general prosperity as proofs of what the exigencies of the Union
demanded in a general government.[3]
In the first volume of this work we have examined the nature and
operation of the previous Union, in both of its aspects, and we must
carry the results of that examination along with us in studying the
formation of the new system. We have seen the character of the Union
which was formed by the assembling of the Revolutionary Congress, to
enable the States to secure their independence of the crown of Great
Britain. We have seen that, from the jealousies of the States, even
this Congress never assumed the whole revolutionary authority which
its situation and office would have entitled it to exercise. We have
seen also, that, from the want of a properly defined system, and from
the absence of all proper machinery of government, it was unable to
keep an adequate army in the field, until, in a moment of extreme
emergency, it conferred upon the Commander-in-chief the powers of a
dictator. We have witnessed the establishment of the Confederation,--a
government which bore within itself the seeds of its own destruction;
for it relied entirely, for all the sinews of war, upon requisitions
on the States, with which the States perpetually refused or neglected
to comply. We have thus seen the war lingering and languishing until
foreign aid could be procured, and until loans of foreign money
supplied the means of keeping it alive long enough for the admirable
courage, perseverance, and energy of Washington to bring it to a
close, against all obstacles and all defects of the civil power. When
the war was at length ended, and the duty of paying the debts thus
incurred to the meritorious and generous foreign creditor, and the
more than meritorious and generous domestic creditor, pressed upon the
conscience of the country, we have seen that there was no power in the
Union to command the means of paying even the interest on its
obligations. We have seen that the treaty of peace could not be
executed; that the Confederation could do nothing to secure the
republican governments of the States; that the commerce of the country
could not be protected against the policy of foreign governments,
constantly watching for advantages which the clashing interests of the
different States at all times held out to them; and that, with the
rule which required the assent of nine States to every important
measure, it was possible for the Congress to refuse or neglect to do
what it was of the last importance to the people of the United States
they should do. Finally, we have seen that what now kept the existing
Union from dissolution, as it had been one immediate inducement to its
formation, was the cession of the vast Northwestern territory to the
United States; and that over this territory new States were forming,
to take their places in the band of American republics, while the
Confederation possessed no sufficient power to legislate for their
condition, or to secure their progress toward the great ends of civil
liberty and prosperity.
A retrospection, therefore, of the previous history of the
Confederacy, while it reveals to us the public appreciation of the
national wants and the national failures, displays the general
purposes contemplated by the States when they undertook effectually to
provide for "the exigencies of the Union." But what the nature of the
proposed changes was to be, and in what mode they were to be reached,
was, as we have seen, left undetermined by the constituent States when
they assembled the Convention; and we are now, therefore, brought to
the third preliminary fact, necessary to be regarded in our future
inquiries, namely, the condition of the actual powers of that
assembly.
The Confederation has already been described as a league, or federal
alliance between independent and sovereign States, for certain
purposes of mutual aid. So far as it could properly be called a
government, it was a government for the States in their corporate
capacities, with no power to reach individuals; so that, if its
requirements were disregarded, compulsion could only be directed--if
against anybody--against the delinquent member of the association, the
State itself.
At the time when the Convention was assembled, the general purpose
entertained throughout the Union appears to have been, by a revision
and amendment of the Articles of Confederation, to give to the
Congress power over certain subjects, of which that instrument did not
admit of its taking cognizance, and to add such provisions as would
render its power efficient. But it was not at all understood by the
country at large, that, while the nominal powers of the Confederation
might be increased at the pleasure of the States, those powers could
not be made effectual without a change in the principle of the
government. Hence, the idea of abolishing the Confederation, and of
erecting in its place a government of a totally different character,
was not entertained by the States, or, if entertained at all, was not
expressed in the public acts of the States by which the Convention was
called. This idea, however, was perhaps not necessarily excluded by
the terms employed by the States in the instruction of their
delegates: and we may therefore expect to find the members of that
assembly, in construing or defining the powers conferred upon it,
taking a broader or narrower view of those powers, according to the
character of their own minds, the nature of their previous public
experience, and the real or supposed interests of their particular
States.
Many of the persons who had been clothed with this somewhat vague and
indeterminate authority to "revise" the existing federal system, and
to agree upon and propose such amendments and further provisions as
might effectually provide for the "exigencies of the Union," were
statesmen who had passed the active period of their previous lives in
vain endeavors to secure efficient action for the powers possessed by
the Congress, both under the revolutionary government and under the
Confederation. They were selected by their States on account of this
very experience, and in order that their counsels might be made
available to the country.[4] They saw that the mere grant of further
powers, or the mere consent that the Congress should have jurisdiction
over certain new subjects, would be of no avail while the government
continued to rest upon the vicious principle of a naked federal
league, leaving the question constantly to recur, whether the compact
was not virtually dissolved by the refusal of individual States to
discharge their federal obligations. These persons, consequently, came
to the Convention feeling strongly the necessity for a radical change
in the principles and structure of the national Union; but feeling
also great embarrassment as to the mode in which that change was to be
effected.
On the other hand, there were other members of the Convention who came
with a disposition to adhere to the more literal meaning of their
instructions, and who did not concur in the alleged necessity for a
radical change of the principle of the government. Fearing that the
power and consequence of their own States would be diminished by the
introduction of numbers as a basis of representation, they adhered to
the system of representation by States, and insisted that nothing was
needed to cure the evils that pressed upon the country, but to enlarge
the jurisdiction of the Congress under that system. They were
naturally, therefore, the first to suggest and the last to surrender
the objection, that the Convention had received no authority, either
from the States or from the Congress, to do anything more than revise
the Articles of Confederation, and recommend such further powers as
might be engrafted upon the present system of the Union.
That the construction of their powers by the latter class of the
members of the Convention comported with the mere terms of the acts of
the States, and with the general expectation, I have more than once
intimated; but we shall see, as the experiment of framing the new
system proceeded, that the views of the other class were equally
correct; that the addition of further powers to the existing system of
the Union would have left it as weak and inefficient as it had been
before; and that what were universally regarded as the "exigencies of
the Union"--which was but another name for the wants of the
States--could only be provided for by the creation of a different
basis for the government.
Another fact which we are to remember is the presence, in five of the
States represented in the Convention, of large numbers of a distinct
race, held in the condition of slaves. Whatever mode of constituting a
national system might be adopted, if it was to be a representative
government, the existence of these persons must be recognized and
provided for in some way. Whatever ratio of representation might be
established,--whether the States were to be represented according to
the numbers of their inhabitants, or according to their wealth,--this
part of the population of the slave-holding States presented one of
the great difficulties to be encountered. A change of their condition
was not now, and never had been, one of the powers which those States
proposed to confide to the Union. In no previous form of the
confederacy had any State proposed to surrender its own control over
the condition of persons within its limits, or its power to determine
what persons should share in the political rights of that community;
and no State that now took part in the new effort to amend the present
system of the Union proposed to surrender this control over its own
inhabitants, or sought to acquire any control over the condition of
persons within any of the other States.
The deliberations of the Convention were therefore begun with the
necessary concession of the fact, that slavery existed in some of the
States, and that the existence and continuance of that condition of
large masses of its population was a matter exclusively belonging to
the authority of each State in which they were found. Not only was
this concession implied in the terms upon which the States had met for
the revision of the national system, but the further concession of the
right to have the slave populations included in the ratio of
representation became equally unavoidable. They must be regarded
either as persons or as chattels. If they were persons, and the basis
of the new government was to be a representation of the inhabitants of
the States according to their numbers,--the only mode of
representation consistent with republican government,--their precise
condition, their possession or want of political rights, could not
affect the propriety of including them in some form in the census,
unless the basis of the government should be composed exclusively of
those inhabitants of the States who were acknowledged by the laws of
the States as free. The large numbers of the slaves in some of the
States would have made a government so constructed entirely unequal in
its operation, and would have placed those States, if they had been
willing to enter it,--as they never could have been,--in a position of
inferiority which their wealth and importance would have rendered
unjustifiable. On the other hand, if the wealth of the States was to
be the measure of their representation in the new government, the
slaves must be included in that wealth, or they must be treated simply
as persons. The slaves might or might not be persons, in the view of
the law, where they were found; but they were certainly in one sense
property under that law, and as such they were a very important part
of the wealth of the State. The Confederation had already been obliged
to regard them, in considering a rule by which the States should
contribute to the national expenses. They had found it to be just,
that a State should be required to include its slaves among its
population, in a certain ratio, when it was called upon to sustain the
national burdens in proportion to its numbers; and they had
recommended the adoption of this fundamental rule as an amendment of
the federal Articles.[5] Either in one capacity, therefore, or in the
other, or in both,--either as persons or as property, or as both,--the
Union had already found it to be necessary to consider the slaves. In
framing the new Union, it was equally necessary, as soon as the
equality of representation by States should give place to a
proportional and unequal representation, to regard these inhabitants
in one or the other capacity, or in both capacities, or to leave the
States in which they were found, and to which their position was a
matter of grave importance, out of the Union.
This difficulty should be rightly appreciated and fairly stated by the
historian who attempts to describe its adjustment, and it should be
carefully regarded by the reader. What reflections may arise upon the
facts that we have to consider,--what should be the judgment of an
enlightened benevolence upon the whole matter of slavery, as it was
dealt with or affected by the Constitution of the United States,--may
perhaps find an appropriate place in some future discussion.
Here, however, the reader must approach the threshold of the subject
with the expectation of finding it surrounded by many and complex
relations. History should undoubtedly concern itself with the
interests of man. But it is bound, as it makes up the record of events
which involve the destinies and welfare of different races, to look at
the aggregate of human happiness. It is not to rest, for its final
conclusions, in seeming or in real inconsistencies; in real or
apparent conflicts between opposite principles; or in the mere letter
of those adjustments by which such conflicts have been avoided, or
reconciled, or acknowledged. It is to arrive at results. It is to draw
the wide deduction which will show whether human nature has lost or
gained by the conditions and forms of national existence which it
undertakes to describe. As the question should always be, in such
inquiries, whether any different and better result was attainable
under all the circumstances of the case,--a question to which a calm
and dispassionate examination will generally find an answer,--the
amount of positive good that has been gained for all, or of positive
evil that has been averted from all, is the true justification of
existing institutions.
The Convention, when fully organized, embraced a representation from
all the States, with the single exception of Rhode Island.
Connecticut, which had steadily opposed the measure of a
Convention,[6] came into it at a late period, and did not send a
delegation until a fortnight after the time appointed for its
session.[7] It had always been the inclination of that State to retain
in her own hands the regulation of commerce; she had taxed imports
from some of her neighbors, and this advantage, as it was considered,
had made her reluctant to enlarge the powers of the Union. Her
delegation appeared on the 28th of May.
That of New Hampshire was not appointed until the latter part of
June,[8] and did not appear until the 23d of July.[9]
Rhode Island, small in territory and in numbers, but favorably
situated for the pursuits of commerce, had strenuously resisted every
effort to enlarge the powers of the Union. Ever since the Declaration
of Independence, the people of that State had clung to the
opportunity, afforded by their situation, of taxing the contiguous
States, through their consumption of commodities brought into its
numerous and convenient ports. For this object they had refused their
assent to the revenue system of 1783; and as the failure of that
system had prevented an exhibition of some of the benefits to be
derived from uniform fiscal regulations, the local government of Rhode
Island adhered, in 1786-7, to what they had always regarded as the
true interest of their State. They did, it is true, appoint delegates
to the commercial convention at Annapolis, but the persons appointed
did not attend; and when the resolve which sanctioned the Convention
of 1787 was adopted in Congress, Rhode Island was not represented in
that body.
When the recommendation of the Congress came before the legislature
of the State, there appears to have been a strong party in favor of
making an appointment of delegates to the Convention. The mercantile
part of the population had come to entertain more liberal and
far-seeing notions of their true interests; and the views of some of
the more intelligent of the farmers and mechanics had been much
modified. But by far the larger portion of the people--wedded to a
system of paper money, which furnished almost their sole currency, and
vaguely apprehending that a new government for the Union would destroy
it, seeking the abolition of debts, public and private, and jealous of
all influence from without--were in a condition to be ruled by their
demagogues, rather than to be enlightened and aided by their
statesmen. In May, the legislature rejected a proposition to appoint
delegates to the Federal Convention; and in June, although the upper
house, or Governor and Council, embraced the measure, it was again
negatived in the House of Assembly by a large majority. The minority
then formed an organization, which never lost sight of the national
relations of the State, and which finally succeeded in bringing her
into the Union under the new Constitution, in 1790.
Immediately after the first rejection of the proposal to unite with
the other States in reforming the Confederation, a body of commercial
persons in Providence addressed a letter to the Convention, expressing
the opinion that full power for the regulation of the commerce of the
United States, both foreign and domestic, ought to be vested in the
national council, and that effectual arrangements should also be made
for giving operation to the existing powers of Congress in their
requisitions for national purposes. Their object in this communication
was to prevent an impression among the other States, unfavorable to
the commercial interests of Rhode Island, from growing out of the
circumstance of their being unrepresented in the Convention.
Expressing the hope that the result of its deliberations would be to
"strengthen the Union, promote the commerce, increase the power, and
establish the credit of the United States," they pledged their
influence and best exertions to secure the adoption of that result by
the State of Rhode Island. The signers of this letter formed the
nucleus of that party which afterwards fulfilled the pledge thus given
to the Convention.
The absence of Rhode Island did not occasion a serious embarrassment.
The resolve of Congress recommending the Convention did not expressly
require the presence of all the States; and the commissions given by
each of the States which adopted the recommendation clearly implied
that their delegates were to meet and act with the delegations of such
other States as might see fit to be represented. The communication of
the minority party in Rhode Island was received and read, and the
interests of that State were attended to throughout the proceedings.
We are now carefully to observe the position of the States when thus
assembled in Convention. Their meeting was purely voluntary; they met
as equals; and they were sovereign political communities, whom no
power could rightfully coerce into a change of their condition, and
with whom such a change must be the result of their own free and
intelligent choice, governed by no other than the force of
circumstances. That they were independent of foreign control was
ascertained by the Declaration of Independence, by the war, and by the
Treaty of Peace. That they were independent of each other, except so
far as they had made certain mutual stipulations in the Articles of
Confederation, was the necessary result of the events which had made
the people of each State its rightful and exclusive sovereigns. We
must recur, therefore, to the Articles of Confederation for the
purpose of determining the nature of the position in which the States
now stood.
When the States, in 1781, entered into the confederacy then
established, they reserved their freedom, sovereignty, and
independence, and every jurisdiction, power, and right not expressly
delegated to the United States. By the provisions of the federal
compact, these separate and sovereign communities committed to a
general council the management of certain interests common to them
all; in that council they were represented equally, each State having
one vote; but as neither the powers conferred upon that body, nor the
restraints imposed by the States upon themselves, were to be enforced
by any agreed sanctions, the parties to the compact were left to a
voluntary performance of their stipulations. Still, there were certain
powers which the States agreed should be exercised by the United
States in Congress assembled, and certain duties towards the
confederacy which they agreed to discharge; and therefore, so far as
authority and jurisdiction had been conferred upon the United States,
so far they had been surrendered by the States. The peculiarity of the
case was, that the powers surrendered were ineffectual for the want of
appropriate means of coercion.
These powers the States did not propose to recall. The Union was
unbroken, though feeble, and trembling on the verge of dissolution.
The purpose of all was to strengthen and secure its powers, to add
somewhat to their number, and to render the whole efficient and
operative by providing some form of direct and compulsory authority.
For this end, as members of an existing confederacy, in possession of
all the powers not previously delegated to the Union, the States had
assembled upon the same equality, and under the same form of
representation, with which they had always acted in the Congress.
As the States had conferred certain powers upon the Confederation, so
it was equally competent to them to enlarge and add to those powers.
They had formed State governments, and established written
constitutions. But the people of the States, and not their
governments, held the supreme, absolute, and uncontrollable power.
They had created, and they could modify or destroy; they could
withdraw the powers conferred upon one class of agents, and bestow
them upon another class. What was wanted was the discovery of some
mode of proceeding, which, by involving the consent of the State
governments, would avoid the appearance and the reality of revolution,
and make the contemplated changes consist with the American idea of
constitutional action.
Here also it seems proper to state the reasons why the process of
framing the Constitution is so important as to demand a careful
exhibition of the proceedings of those to whom this great undertaking
was intrusted.
The Convention had confessedly no power to enact or establish
anything. It was a representative body, clothed with authority to
agree upon a system of government to be recommended to the adoption of
their constituents. The constituents were twelve of the thirteen
States of the confederacy, each having an equal voice and vote in the
proceedings; but neither the assent nor the dissent of a State, in the
Convention, to the whole system, or to any part of it, bound the
people of that State to receive or to reject it when it should come
before them. Still, the results of the various determinations of a
majority of the States in this body; the purposes of particular
provisions which those results clearly disclose; the relations which
they evince between the different parts of the system,--are all of
the utmost importance in determining the sense in which the whole
ultimately came before the enacting authority for approval or
rejection. If, for example, a majority of the States came to a very
early determination that the principle of the government should no
longer be that of an exclusive representation of States, but should
include a representation of the people of the different States in some
fair and equitable ratio; if they adhered to this throughout their
deliberations, and adjusted everything with reference to it; and if,
when they finally provided for a mode of establishing the new system,
they submitted it directly to the people of each State to declare
whether they would be so represented,--it is manifest that these
results of their action have much to do with the inquiry, What is the
true nature of the present government of the United States?
Every student of the proceedings and discussions in the national
Convention should, however, be careful not to extend this principle of
general interpretation to the views, opinions, or arguments expressed
or employed by individuals in that assembly. The line of argument or
illustration adopted by different members may be more or less
important, as tending to explain the scope or purpose of a particular
decision arrived at by a vote of the Convention; and occasionally, as
will be seen in reference to the arrangements which were finally
entered into as mutual concessions or compromises between different
interests, the discussions will be found to be of great significance
and importance. But it is, after all, to the results themselves, and
to the principles involved in the various decisions of the Convention,
as indicated by the votes taken, that we are to look for the landmarks
that are to guide our inquiries into the fundamental changes,
improvements, and additions proposed by the Convention to the country,
and afterwards adopted by the people of the States.
FOOTNOTES:
[1] Rhode Island.
[2] New Jersey specifically contemplated a regulation of commerce. See
the proceedings of Congress, and those of the States, _ante_, Vol. I.
pp. 361, 367, notes.
[3] Thus, for example, the regulation of commerce was not one of the
original purposes for which the Union was formed in 1775 or in 1781.
But it became one of the exigencies of the Union, by becoming a
national want, and by the revealed incompetency of most of the States
to deal with the subject so as to promote their own welfare, or to
avoid injury to their confederates. So of a great many other things,
for which we must resort, as the framers of the Constitution resorted,
to the history of the times.
[4] See the preamble to the act of Virginia, _ante_, Vol. I. p. 367,
note.
[5] See the Resolve of Congress, passed April 18, 1783, proposing to
amend the Articles of Confederation. This Resolve was the origin of
the proportion of three fifths, in counting the slaves. See _post_,
Chapter II. p. 48; _ante_, Vol. I. p. 213, note 2.
[6] Madison, Elliot, V. 96.
[7] Ibid. 124.
[8] Elliot, I. 126.
[9] Ibid. 351.
CHAPTER II.
CONSTRUCTION OF A LEGISLATIVE POWER.--BASIS OF REPRESENTATION, AND
RULE OF SUFFRAGE.--POWERS OF LEGISLATION.
The Convention having been organized, Governor Randolph of
Virginia[10] submitted a series of resolutions, embracing the
principal changes that ought to be proposed in the structure of the
federal system.
Mr. Charles Pinckney of South Carolina also submitted a plan of
government, which, with Governor Randolph's resolutions, was referred
to a committee of the whole. It is not necessary here to state the
details of these several systems; for although that introduced by
Randolph gave a direction to the deliberations of the committee, the
results arrived at were in some respects materially different.
The first distinct departure that was made from the principles of the
Confederation was involved in one of the propositions brought forward
by Governor Randolph, "that a NATIONAL government ought to be
established, consisting of a supreme legislative, executive, and
judiciary"; and as this proposition was affirmed in the committee by
a vote of six States, it is important to understand the sense in which
it was understood by them.[11]
Most of the framers of the Constitution seem to have considered that a
compact between sovereign States, which rested for its efficacy on the
good faith of the parties, and had no other compulsory operation than
a resort to arms against a delinquent member, was a "federal"
government. This was the principle of the Confederation. At this early
stage of their deliberations, the idea which was intended by those who
favored a change of that principle, when they spoke of a "national"
government, was one that would be a supreme power with respect to
certain national objects committed to it, and that would have some
kind of direct compulsory action upon individuals. This distinction
was understood by all to be real and important. It led directly to the
question of the powers of the Convention, and formed the early line of
division between those who desired to adhere to the existing system,
and those who aimed at a radical change. The former admitted the
necessity for a more effective government, and supposed that the
Confederation could be made so by distributing its powers into the
three great departments of a legislative, executive, and judiciary;
but they did not suggest any mode by which those powers could be made
supreme over the authority of the separate States. The latter
contended, that there could be no such thing as government unless it
were a supreme power, and that there could be but one supreme power
over the same subjects in the same community; that supreme power could
not from the nature of things act on the States collectively, in the
usual and peaceful mode in which the operations of government ought to
be conducted, but that it must be able to reach individuals; and that,
as the Confederation could not operate in this way, the distribution
of its powers into distinct departments would be no improvement upon
the present condition of things.
But when the distinction between a national and a federal government
had been so far developed, the subject was still left in a great
degree vague and indeterminate. What was to mark this distinction as
real, and give it practical effect? By what means was the government,
which was now, as all admitted, a mere federal league between
sovereign States, to become, in any just sense, national? The idea of
a nation implies the existence of a people united in their political
rights, and possessed of the same political interests. A national
government must be one that exercises the political rights, and
protects the political interests, of such a people. But, hitherto, the
people of the United States had been divided into distinct
sovereignties; and although by the Articles of Confederation some
portion of the sovereign power of each of the separate States had
been vested in a general government, that government had been found
inefficient, and incapable of resisting the great power that had been
reserved to the respective States, and was constantly exerted by them.
The difficulty was, that the constituent parties to the federal union
were themselves political governments and sovereigns; the people of
the States had no direct representation, and no direct suffrage, in
the general legislature; and as in a republican government the
representation and the suffrage must determine its character, it
became obvious that, in order to establish a national government that
would embrace the political rights and interests of the people
inhabiting the States, the basis of representation and the rule of
suffrage must be changed.
It being assumed that the new government was to be divided into the
three departments of the legislative, executive, and judiciary,
several questions at once presented themselves with regard to the
constitution of the national legislature. Was it to consist of one or
of two houses? and if the latter, what was to be the representation
and the rule of suffrage in each?
The resolutions of Governor Randolph raised the question as to the
rule of suffrage, before the committee had determined on the division
of the legislative power into two branches. One of his propositions
was, "That the rights of suffrage in the national legislature ought to
be proportioned to the quotas of contribution, or to the number of
free inhabitants, as the one or the other rule may seem best in
different cases." This was no sooner propounded, than a difficulty was
suggested by the deputies of the State of Delaware, which threatened
to impede the whole action of the Convention. They declared that they
felt restrained by their commissions from assenting to any change of
the rule of suffrage, and announced their determination to retire from
the Convention if such a change were adopted. The firmness and address
of Madison and Gouverneur Morris surmounted this obstacle. They
declared that the proposed change was absolutely essential to the
formation of a national government; but they consented to postpone the
question, having ascertained that it would finally be carried.[12]
The committee thereupon immediately determined that the national
legislature should consist of two branches,[13] and proceeded to
consider the mode of representation and suffrage in both. As the
discussions proceeded, the members became divided into two parties
upon the general subject; the one was for a popular basis and a
proportionate representation in both branches; the other was in favor
of an equal representation by States in both. The first issue between
them was made upon the House, or what was termed the first branch of
the legislature. On the one side it was urged, that to give the
election of this branch to the people of the States would make the new
government too democratic; that the people were unsafe depositaries
of such a power, not because they wanted virtue, but because they were
liable to be misled; and that the State legislatures would be more
likely to appoint suitable persons. On the other hand, it was admitted
that an election of the more numerous branch of the national
legislature by the people would introduce a true democratic principle
into the government, and this, it was said, was necessary. It was
urged that this branch of the legislature ought to know and sympathize
with every part of the community, and ought therefore to be taken, not
only from different parts of the republic, but also from different
districts of the larger members of it. The broadest possible basis, it
was said, ought to be given to the new system; and as that system was
to be republican, a direct representation of the people was
indispensable. To increase the weight of the State legislatures, by
making them electors of the national legislature, would only
perpetuate some of the worst evils of the Confederation.
A decided majority of the States sustained the election of the first
branch of the national legislature by the people.[14] Great efforts
were, however, subsequently made to change this decision; and the
discussion which ensued on a motion that this branch should be elected
by the State legislatures, throws much light upon the nature of the
government which the friends of an election by the people were aiming
to establish. From that discussion it appears that the idea was
already entertained of forming a government that should have a
vigorous authority derived directly from the people of the
States,--one that should possess both the force and the sense of the
people at large. For the formation of such a government one of two
courses was necessary: either to abolish the State governments
altogether; or to leave them in existence, and to regard the people of
each State as competent to withdraw from their local governments such
portions of their political power as they might see fit to bestow upon
a national government. The latter plan was undoubtedly a novelty in
political science; for no system of government had yet been
constructed in which the individual stood in the relation of subject
to two distinct sovereignties, each possessed of a distinct sphere,
and each supreme in its own sphere. But if the American doctrine were
true, that all supreme power resides originally in the people, and
that all governments are constituted by them as the agents and
depositaries of that power, there could be no incompatibility in such
a system. The people who had deposited with a State government the
sovereign power of their community, could withdraw it at their
pleasure; and as they could withdraw the whole, they could withdraw a
part of it. If a part only were withdrawn, or rather, if the supreme
power in relation to particular objects were to be taken from the
State governments, and vested in another class of agents, leaving the
authority of the former undiminished except as to those particular
objects, the individual might owe a double allegiance, but there could
be no confusion of his duties, provided the powers withdrawn and
revested were clearly defined.
The advocates of a national government, besides and beyond the
intrusting of a particular jurisdiction to that government, wished to
make it certain that its legislative power, in each act of
legislation, should rest on the direct authority of the people. For
this purpose they desired to avoid all agency of the State governments
in the appointment of the members of the national legislature. They
held this to be necessary for two reasons. In the first place, they
said that in a national government the people must be represented; and
that in a republican system the real constituent should act directly,
and without any intermediate agency, in the appointment of the
representative. In the second place, they deduced from the objects of
a national government the necessity for excluding the agency of the
State governments in the appointment of those who were to exercise its
legislative power. Those objects, they contended, were not fully
stated by their opponents. The latter generally regarded the objects
of the Union as confined to defence against foreign danger and
internal disorder; the power to make binding treaties with foreign
countries; the regulation of commerce, and the power to derive
revenues therefrom.[15] The former insisted that another great object
must be, to provide more effectually for the security of private
rights, and the steady dispensation of justice. Mr. Madison declared
that republican liberty could not long exist under the abuses of it
which had been practised in some of the States, where the
uncontrollable power of a majority had enabled debtors to elude their
creditors, the holders of one species of property to oppress the
holders of another species, and where paper money had become a
stupendous fraud. These evils had made it manifest that the power of
the State governments, even in relation to some matters of internal
legislation, must be to some extent restrained; and in order
effectually to restrain it, the national government must, in the
construction of its departments, as well as in its powers, be derived
directly from the people.[16]
These views again prevailed as to the first branch, and Mr. Pinckney's
proposition for electing that branch by the State legislatures was
negatived by a vote of three States in the affirmative, and eight in
the negative.[17]
But as soon as the impracticability of abolishing the State
governments was seen and admitted,--and it was at once both seen and
admitted by some of the strongest advocates for a national
government,--it became apparent to a large part of the assembly, that
to exclude those governments from all agency in the election of both
branches of the national legislature would be inexpedient. It would
obviously have been theoretically correct to have given the election
of both the Senate and the House to the people of the States,
especially when it was intended to adhere to the principle of a
proportionate representation of the people of the States in both
branches.[18] But the necessity for providing some means by which the
States, as States, might defend themselves against encroachments of
the national government, made it apparent that they must become, in
the election, a constituent part of the system. No mode of doing this
presented itself, except to give the State legislatures the
appointment of the less numerous branch of the national
legislature,--a provision which was finally adopted in the committee
by the unanimous vote of the States.[19]
The results thus reached had settled for the present the very
important fact, that the people of the States were to be represented
in both branches of the legislature; that for the one they were to
elect their representatives directly, and for the other they were to
be elected by the legislature of the State.
But when it had been ascertained by whom the members of the two
branches were to be elected, there remained to be determined the
decisive question, which was to mark still more effectively the
distinction between a purely national and a purely federal government,
namely, the rule of suffrage, or the ratio of representation in the
national legislature.
The rule of suffrage adopted in the first Continental Congress was, as
we have seen, the result of necessity; for it was impossible to
ascertain the relative importance of each Colony; and, moreover, that
Congress was in fact an assembly of committees of the different
Colonies, called together to deliberate in what mode they could aid
each other in obtaining a redress of their several grievances from
Parliament and the Crown. But while, from the necessity of the case,
they assigned to each Colony one vote in the Congress, they looked
forward to the time when the relative wealth or population of the
Colonies must regulate their suffrage in any future system of
continental legislation.[20] The character of the government formed by
the Articles of Confederation had operated to postpone the arrival of
this period; because it was in the very nature of that system that
each State should have an equal voice with every other. This system
was the result of the formation of the State governments, each of
which had become the present depositary of the political powers of an
independent people.
But if this system were to be changed,--if the people of the States
were to be represented in each branch of the national legislature,--some
ratio of representation must be adopted, or the idea of connecting them
as a nation with the government that was to be instituted must be
abandoned. It was obviously for the interest of the larger States, such
as Virginia, Pennsylvania, and Massachusetts,--then the three leading
States in point of population,--to have a proportionate representation
of their whole inhabitants, without reference to age, sex, or condition.
On the other hand, it was for the interest of the smaller States to
insist on an equality of votes in the national legislature, or at least
on the adoption of a ratio that would exclude some portions of the
population of the great States. Some of the lesser States were
exceedingly strenuous in their efforts to accomplish these objects, and
more than once, in the course of the proceedings, declared their purpose
to form a union on no other basis.
In this posture of things the alternatives were, either to form no
union at all, or only to form one between the large States willing to
unite on the basis of proportionate representation; or to abolish the
State governments, and throw the whole into one mass; or to leave the
distinctions and boundaries between the different States, and adopt
some equitable ratio of suffrage, as between the people of the several
States, in the national legislature. The latter course was adopted in
the committee, as to the first branch, by a vote of seven States in
the affirmative, against three in the negative, one being
divided.[21]
The question was then to be determined, by what ratio the
representation of the different States should be regulated; and here
again any one of several expedients might be adopted. The basis of
representation might be made to consist of the whole number of voters,
or those on whom the States had conferred the elective franchise; or
it might be confined to the white inhabitants, excluding all other
races; or it might include all the free inhabitants of every race,
excluding only the slaves; or it might embrace the whole population of
each State. Some examination of each of these plans will illustrate
the difficulties which had to be encountered.
To have adopted the number of legal voters of the States as the ratio
of representation in the national legislature would have been to adopt
a system in which there were great existing inequalities. The elective
franchise had been conferred in the different States upon very
different principles; it was very broad in some of the States, and
much narrower in others, according to their peculiar policy and
manners. These inequalities could scarcely have been removed; for the
right of suffrage in some of the States was more or less connected
with their systems of descent and distribution of property, and those
systems could not readily be changed, so as to adapt the condition of
society to the new interest of representation and influence in the
general government. This plan was, therefore, out of the question.
It was nearly as impracticable, also, to confine the basis of
representation to the white inhabitants of the States. Some of the
States--such as Massachusetts, Connecticut, Rhode Island, New York,
and Pennsylvania, in which slavery was already, or was ultimately to
become, extinct, and Maryland, North Carolina, and Virginia, where
slavery was likely to remain--had large numbers of free blacks. These
inhabitants, who were regarded as citizens in some of the States, but
not in others, were in all a part of their populations, contributing
to swell the aggregate of the numbers and wealth of the State, and
thus to raise it in the scale of relative rank. Their personal
consequence, or social rank, was a thing too remote for special
inquiry. A State that contained five or ten thousand of these
inhabitants might well say, that, although of a distinct race, they
formed an aggregate portion of its free population, too large to be
omitted without opening the door to inquiries into the condition and
importance of other classes of its free inhabitants. This was the
situation of all the Northern States except New Hampshire, as well as
of all the Middle and Southern States; and it was especially true of
Virginia, which had nearly twice as many free colored persons as any
other State in the Union.
It was equally impracticable to form a national government in which
the basis of representation should be confined to the free inhabitants
of the States. The five States of Maryland, Virginia, North Carolina,
South Carolina, and Georgia, including their slaves, were found by the
first census, taken three years after the formation of the
Constitution, to contain a fraction less than one half of the whole
population of the Union.[22] In three of those States the slaves were
a little less than half, and in two of them they were more than half,
as numerous as the whites.[23] There was no good reason,
therefore,--except the theoretical one that a slave can have no actual
voice in government, and consequently does not need to be
represented,--why a class of States containing nearly half of the
whole population of the confederacy should consent to exclude such
large masses of their populations from the basis of representation,
and thereby give to the free inhabitants of each of the other eight
States a relatively larger share of legislative power than would fall
to the free inhabitants of the States thus situated. The objection
arising from the political and social condition of the slaves would
have had great weight, and indeed ought to have been decisive of the
question, if the object had been to efface the boundaries of the
States, and to form a purely consolidated republic. But this purpose,
if ever entertained at all, could not be followed by the framers of
the Constitution. They found it indispensable to leave the States
still in possession of their distinct political organizations, and of
all the sovereignty not necessary to be conferred on the central
power, which they were endeavoring to create by bringing the free
people of these several communities into some national relations with
each other. It became necessary, therefore, to regard the peculiar
social condition of each of the States, and to construct a system of
representation that would place the free inhabitants of each distinct
State upon as near a footing of political equality with the free
inhabitants of the other States as might, under such circumstances, be
practicable. This could only be done by treating the slaves as an
integral part of the population of the States in which they were
found, and by assuming the population of the States as the true basis
of their relative representation.
It was upon this idea of treating the slaves as inhabitants, and not
as chattels, or property, that the original decision was made in the
committee of the whole, by which it was at first determined to include
them.[24] Having decided that there ought to be an equitable ratio of
representation, the committee went on to declare that the basis of
representation ought to include the whole number of white and other
free citizens and inhabitants, of every age, sex, and condition,
including those bound to servitude for a term of years; and they then
added to the population thus described three fifths of all other
persons not comprehended in that description, except Indians not
paying taxes. The proportion of three fifths was borrowed from a rule
which had obtained the sanction of nine States in Congress, in the
year 1783, when it was proposed to change the basis of contribution by
the States to the expenses of the Union from property to
population.[25] At that time, the slaveholding States had consented
that three fifths of their slaves should be counted in the census
which was to fix the amount of their contributions; and they now asked
that, in the apportionment of representatives, these persons might
still be regarded as inhabitants of the State, in the same ratio. The
rule was adopted in the committee, with the dissent of only two
States, New Jersey and Delaware; but on the original question of
substituting an equitable ratio of representation for the equality of
suffrage that prevailed under the Confederation, New York united with
New Jersey and Delaware in the opposition, and the vote of Maryland
was divided.
The next step was to settle the rule of suffrage in the Senate; and
although it was earnestly contended that the smaller States would
never agree to any other principle than an equality of votes in that
body,[26] it was determined in the committee, by a vote of six States
against five, that the ratio of representation should be the same as
in the first branch.[27]
Thus it appears that originally a majority of the States were in favor
of a numerical representation in both branches. The three States of
Virginia, Pennsylvania, and Massachusetts, the leading States in
population, and with them North Carolina, South Carolina, and Georgia,
found it at present for their interest to adopt this basis for both
houses of the national legislature. It was a consequence of the
principle of numerical representation, that the slaves should be
included; and it does not appear that at this time any delegate from a
Northern State interposed any objection, except Mr. Gerry of
Massachusetts, who regarded the slaves as "property," and said that
the cattle and horses of the North might as well be included. But the
State which he represented was at this time pressing for the rights of
population, and for a system in which population should have its due
influence; and her vote, as well as that of Pennsylvania, was
accordingly given for the principle which involved an admission of the
slaves into the basis of representation, and for the proportion which
the slave States were willing to take.
These transactions in the committee of the whole are quite important,
because they show that the original line of division between the
States, on the subject of representation, was drawn between the States
having the preponderance of population and the States that were the
smallest in point of numbers. When, and under what circumstances, this
line of division changed, what combinations a nearer view of all the
consequences of numerical representation may have brought about, and
how the conflicting interests were finally reconciled, will be seen
hereafter. What we are here to record is the declaration of the
important principle, that the legislative branch of the government was
to be one in which the free people of the States were to be
represented, and to be represented according to the numbers of the
inhabitants which their respective States contained, counting those
held in servitude in a certain ratio only.
The general principles on which the powers of the national legislature
were to be regulated, were declared with a great degree of unanimity.
That it ought to be invested with all the legislative powers belonging
to the Congress of the Confederation was conceded by all. This was
followed by the nearly unanimous declaration of a principle, which was
intended as a general description of a class of powers that would
require subsequent enumeration, namely, that the legislative power
ought to embrace all cases to which the State legislatures were
incompetent, or in which the harmony of the United States would be
interrupted by the exercise of State legislation. But the committee
also went much farther, and without discussion or dissent declared
that there ought also to be a power to negative all laws passed by the
several States contravening, in the opinion of the national
legislature, the Articles of Union, or any treaties made under the
authority of the Union.[28]
The somewhat crude idea of making a negative on State legislation a
legislative power of the national government, shows that the admirable
discovery had not yet been made of exercising such a control through
the judicial department. Without such a control lodged somewhere, the
national prerogatives could not be defended, however extensive they
might be in theory. There had been, as Mr. Madison well remarked, a
constant tendency in the States to encroach on the federal authority,
to violate national treaties, to infringe the rights and interests of
each other, and to oppress the weaker party within their respective
jurisdictions. The expedient that seemed at first to be the proper
remedy, and, as was then supposed, the only one that could be employed
as a substitute for force, was to give the general government a power
similar to that which had been exercised over the legislation of the
Colonies by the crown of England, before the Revolution; and there
were some important members of the Convention who at this time thought
that this power ought to be universal.[29] They considered it
impracticable to draw a line between the cases proper and improper for
the exercise of such a negative, and they argued from the correctness
of the principle of such a power, that it ought to embrace all cases.
But here the complex nature of the government which they were obliged
to establish made it necessary to depart from the theoretical
correctness of a general principle. The sovereignty of the States
would be entirely inconsistent with a power in the general government
to control their whole legislation. As the direct authority of the
national legislature was to extend only to certain objects of national
concern, or to such as the States were incompetent to provide for, all
the political powers of the States, the surrender of which was not
involved in the grant of powers to the national head, must remain; and
if a general superintendence of State legislation were added to the
specific powers to be conferred on the central authority, there would
be in reality but one supreme power in all cases in which the general
government might see fit to exercise its prerogative. The just and
proper sphere of the national government must be the limit of its
power over the legislation of the States. In that sphere it must be
supreme, as the power of each State within its own sphere must also be
supreme. Neither of them should encroach upon the prerogatives of the
other; and while it was undoubtedly necessary to arm the national
government with some power to defend itself against such encroachments
on the part of the States, there could be no real necessity for making
this power extend beyond the exigencies of the case. Those exigencies
would be determined by the objects that might be committed to the
legislation of the central authority; and if a mode could be devised,
by which the States could be restrained from interfering with or
interrupting the just exercise of that authority, all that was
required would be accomplished.[30]
But to do this by means of a negative that was to be classed among the
legislative powers of the new government, was to commit the subject of
a supposed conflict between the rights and powers of the State and the
national governments to an unfit arbitration. Such a question is of a
judicial nature, and belongs properly to a department that has no
direct interest in maintaining or enlarging the prerogatives of the
government whose powers are involved in it.
But the framers of the Constitution had come fresh from the
inconveniences and injustice that had resulted from the unrestrained
legislative powers of the States. Some of them believed it, therefore,
to be necessary to make the authority of the United States paramount
over the authority of each separate State; and a negative upon State
legislation, to be exercised by the legislative branch of the
national government, seemed to be the readiest way of accomplishing
the object. Some of the suggestions of the mode in which this power
was to operate strike us, at the present day, as singularly strange.
No less a person than Mr. Madison, in answer to the objections arising
from the practical difficulties in subjecting all the legislation of
all the States to the revision of a central power, thought at this
time that something in the nature of a commission might be issued into
each State, in order to give a temporary assent to laws of urgent
necessity. He suggested also that the negative might be lodged in the
Senate, in order to dispense with constant sessions of the more
numerous branch.
But the radical objection to any plan of a negative on State
legislation, as a legislative power of the general government, was,
that it would not in fact dispense with the use of force against a
State in the last resort. If, after the exercise of the power, the
State whose obnoxious law had been prohibited should see fit to
persist in its course, force must be resorted to as the only ultimate
remedy. How different, how wise, was the expedient subsequently
devised, when the appropriate office of the judicial power was
discerned,--a power that waits calmly until the clashing authorities
of the State and the nation have led to a conflict of right or duty in
some individual case, and then peacefully adjudicates, in a case of
private interest, the great question, with which of the two
governments resides the power of prescribing the paramount rule of
conduct for the citizen! Disobedience on the part of the State may, it
is true, still follow after such an adjudication, and against an open
array of force on the one side nothing but force remains to be
employed on the other. But the great preventive of this dread
necessity is found in the fact, that there has been an adjudication by
a tribunal that commands the confidence of all, and in the moral
influence of judicial determinations over a people accustomed to
submit not only their interests, but their feelings even, to the
arbitrament of juridical discussion and decision.
* * * * *
TABLE
EXHIBITING THE POPULATIONS OF THE THIRTEEN STATES, ACCORDING TO THE
CENSUS OF 1790.
N. B.--In this abstract Maine is not included in Massachusetts, nor
Kentucky and Tennessee in the States from which they were severed.
+----------------+-----------+---------------+---------+-----------+
| | Whites. | Free Colored. | Slaves. | Total. |
| +-----------+---------------+---------+-----------+
|New Hampshire, | 141,111 | 630 | 158 | 141,899 |
|Massachusetts, | 373,254 | 5,463 | ..... | 378,717 |
|Rhode Island, | 64,689 | 3,469 | 952 | 69,110 |
|Connecticut, | 232,581 | 2,801 | 2,759 | 238,141 |
|New York, | 314,142 | 4,654 | 21,324 | 340,120 |
|New Jersey, | 169,954 | 2,762 | 11,423 | 184,139 |
|Pennsylvania, | 424,099 | 6,537 | 3,737 | 434,373 |
|Delaware, | 46,310 | 3,899 | 8,887 | 59,096 |
|Maryland, | 208,649 | 8,043 | 103,036 | 319,728 |
|Virginia, | 442,115 | 12,765 | 293,427 | 748,307 |
|North Carolina, | 288,204 | 4,975 | 100,572 | 393,751 |
|South Carolina, | 140,178 | 1,801 | 107,094 | 249,073 |
|Georgia, | 52,886 | 398 | 29,264 | 82,548 |
| +-----------+---------------+---------+-----------+
| Aggregate, | 2,898,172 | 58,197 | 682,633 | 3,639,002 |
+----------------+-----------+---------------+---------+-----------+
Total population of the eight States in 1790, in which slavery had
been or has since been abolished, 1,845,595.
Total population of the five States in 1790, in which slavery existed,
and still exists, 1,793,407.
FOOTNOTES:
[10] Edmund Randolph. See _ante_, Vol. I. p. 480.
[11] Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina,
South Carolina, _ay_, 6; Connecticut, _no_, 1; New York divided
(Colonel Hamilton _ay_, Mr. Yates _no_). Madison, Elliot, V. 132, 134.
[12] Madison, Elliot, V. 134, 135.
[13] Ibid. 135. The vote of Pennsylvania, in compliance with the
wishes of Dr. Franklin, was given for a single house.
[14] Massachusetts, New York, Pennsylvania, Virginia, North Carolina,
Georgia, _ay_, 6; New Jersey, South Carolina, _no_, 2; Connecticut and
Delaware divided.
[15] See Mr. Sherman's remarks, made in committee, June 6; Madison,
Elliot, V. 161.
[16] See Mr. Madison's views, as stated in his debates, Elliot, V.
161.
[17] Connecticut, New Jersey, South Carolina, _ay_, 3; Massachusetts,
New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
Georgia, _no_, 8.
[18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to
have favored it.
[19] Madison, Elliot, V. 170.
[20] _Ante_, Vol. I. Book I. ch. I. pp. 15-17.
[21] Massachusetts, Connecticut, Pennsylvania, Virginia, North
Carolina, South Carolina, Georgia, _ay,_ 7; New York, New Jersey,
Delaware, _no_, 3; Maryland, divided.
[22] They contained 1,793,407 inhabitants; the other eight States had
1,845,595 when the federal census of 1790 was taken.
[23] See the census of 1790, _post_, p. 55.
[24] The population of the States was adopted in the committee of the
whole, instead of their quotas of contribution, which, in one or
another form, was the alternative proposition. The slaves were
included, in a proportion accounted for in the text, as a part of the
aggregate _population_; and it was not until a subsequent stage of the
proceedings that this result was defended on the ground of their
forming part of the aggregate _wealth_ of the State.
[25] _Ante_, Vol. I. Book II. ch. III. p. 213, note 2, where the
origin of the proportion of three fifths is explained.
[26] By Mr. Sherman and Mr. Ellsworth.
[27] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey,
Delaware, Maryland, _no_, 5. Elliot, V. 182.
[28] Madison, Elliot, V. 139.
[29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the
other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler
strenuously opposed this plan.
[30] Accordingly, a proposition to extend the negative on State
legislation to all cases received the votes of three States only, viz.
Massachusetts, Pennsylvania, and Virginia.
CHAPTER III.
CONSTRUCTION OF THE EXECUTIVE AND THE JUDICIARY.
The construction of a national executive, although not surrounded by
so many inherent practical difficulties as the formation of the
legislative department, was likely to give rise to a great many
opposite theories. The questions, of how many persons the executive
ought to consist, in what mode the appointment should be made, and
what were to be its relations to the legislative power, were attended
with great diversities of opinion.
The question whether the executive should consist of one, or of more
than one person, was likely to be influenced by the nature of the
powers to be conferred upon the office. Foreseeing that it must
necessarily be an office of great power, some of the members of the
Convention thought that a single executive would approach too nearly
to the model of the British government. These persons considered that
the great requisites for an executive department--vigor, despatch, and
responsibility--could be found in three persons as well as in one.
Those, on the other hand, who favored the plan of a single magistrate,
maintained that the prerogatives of the British monarchy would not
necessarily furnish the model for the executive powers; and that unity
in the executive would be the best safeguard against tyranny.
But this point connected itself with the question, whether the
executive should be surrounded by a council, and the latter
proposition again involved the consideration of the precise relation
of the executive to the legislative power. That a negative of some
kind upon the acts of the legislature was essential to the
independence of the executive, was a truth in political science not
likely to escape the attention of many of the members of the
Convention. Whether it should be a qualified or an absolute negative
was the real, and almost the sole question; for although there were
some who held the opinion that no such power ought to be given, it was
evident from the first that its necessity was well understood by the
larger part of the assembly. In the first discussion of this subject,
the negative was generally regarded as a means of defence against
encroachments of the legislature on the rights and powers of the other
departments. It was supposed that, although the boundaries of the
legislative authority might be marked out in the Constitution, the
executive would need some check against unconstitutional interference
with its own prerogatives; and that, as the judicial department might
be exposed to the same dangers, the power of resisting these also
could be best exercised by the executive. But an absolute negative for
any purpose was favored by only a very few of the members, and the
proposition first adopted was to give the executive alone a
revisionary check upon legislation, which should not be absolute if it
were afterwards overruled by two thirds of each branch of the
legislature.[31]
But inasmuch as this provision would leave the precise purposes of the
check undetermined, and in order, as it would seem, to subject the
whole of the legislative acts to revision and control by the
executive, some of the members desired that the judiciary, or a
convenient number of the judges, might be added to the executive as a
council of revision. Among these persons were Mr. Madison and Mr.
Wilson. The former expressed a very decided opinion, that, whether the
object of a revisionary power was to restrain the encroachments of the
legislature on the other departments, or on the rights of the people
at large, or to prevent the passage of laws unwise in principle or
incorrect in form, there would be great utility in annexing the wisdom
and weight of the judiciary to the executive. But this proposition was
rejected by a large majority of the States, and the power was left by
the committee as it had been settled by their former decision. These
proceedings, however, do not furnish any decisive evidence of the
nature and purpose of the revisionary check.
But before this feature of the Constitution had been settled by the
committee, they had determined on a mode in which the executive should
be appointed. It is singular that the idea of an election of the
executive by the people, either mediately or immediately, found so
little favor at first, that on its first introduction it received the
votes of but two States. Since the executive was to be the agent of
the legislative will, it was argued by some members that it ought to
be wholly dependent, and ought therefore to be chosen by the
legislature. The experience of New York and of Massachusetts, on the
other hand,--where the election of the first magistrate by the people
had been successfully practised,--and the danger that the legislature
and the candidates might play into each other's hands, and thus give
rise to constant intrigues for the office, were the arguments employed
by others. Upon the introduction of a proposition that the States be
divided into districts, for the election by the people of electors of
the executive, two States only recorded their votes in its favor, and
eight States voted against it.[32] By the vote of eight States it was
then determined that the executive should be elected by the national
legislature for the term of seven years;[33] and subsequently it was
determined that the executive should be ineligible to a second term of
office, and should be removable on impeachment and conviction of
malpractice or neglect of duty. A single executive was agreed to by a
vote of seven States against three.[34] After the mode in which the
negative was to be exercised had been settled, an attempt was made to
change the appointment, and vest it in the executives of the States.
But this proposal was decisively rejected.[35]
The judiciary was the next department of the proposed plan of
government that remained to be provided. Like the executive, it was a
branch of sovereign power unknown to the Confederation. The most
palpable defect of that government, as I have more than once had
occasion to observe, was the entire want of sanction to its laws. It
had no judicial system of its own for decree and execution against
individuals. All its legislation, both in nature and form, prescribed
duties to States. The observance of these duties could only be
enforced against the parties on whom they rested, and this could be
done only by military power. But it was the peculiar and anomalous
situation of the American Confederacy, that the power to employ force
against its delinquent members had not been expressly delegated to it
by the Articles of Union; and that it could not be implied from the
general purposes and provisions of that instrument, without a seeming
infraction of the article by which the States had reserved to
themselves every power, jurisdiction, and right not "expressly"
delegated to the United States. If this objection was well
founded,--and it was universally held to be so,--we may well concur
in the remark of The Federalist, that "the United States presented the
extraordinary spectacle of a government destitute even of the shadow
of constitutional power to enforce the execution of its own laws."[36]
The Confederation, too, had found it to be entirely impracticable to
rely on the tribunals of the States for the execution of its laws.
Such a reliance in a confederated government presupposes that the
party guilty of an infraction of the laws or ordinances of the
confederacy will try, condemn, and punish itself. The whole history of
our Confederation evinces the futility of laws requiring the obedience
of States, and proceeding upon the expectation that they will enforce
that obedience upon themselves.
The necessity for a judicial department in the general government was,
therefore, one of the most prominent of those "exigencies of the
Union," for which it was the object of the present undertaking to
provide. The place which that department was to occupy in a national
system could be clearly deduced from the office of the judiciary in
all systems of constitutional government. That office is to apply to
the subjects of the government the penalties inflicted by the
legislative power for disobedience of the laws. Disobedience of the
lawful commands of a government may be punished or prevented in two
modes. It may be done by the application of military power, without
adjudication; or it may be done through the agency of a tribunal,
which adjudicates, ascertains the guilty parties, and applies to them
the coercion of the civil power. This last is the peculiar function of
a judiciary; and in order that it may be discharged effectually, the
judiciary that is to perform this office must be a part of the
government whose laws it is to enforce. It is essential to the
supremacy of a government, that it should adjudicate on its own
powers, and enforce its own laws; for if it devolves this prerogative
on another and subordinate authority, the final sanction of its laws
can only be by a resort to military power directed against those who
have refused to obey its lawful commands.
One of the leading objects in forming the Constitution was to obtain
for the United States the means of coercion, without a resort to force
against the people of the States collectively. Mr. Madison, at a very
early period in the deliberations of the Convention, declared that the
use of force against a State would be more like a declaration of war
than an infliction of punishment, and would probably be considered by
the party attacked as a dissolution of all previous compacts by which
it might be bound.[37] At his suggestion, a clause in Governor
Randolph's plan authorizing the use of force against a delinquent
member of the confederacy was laid aside, in order that a system
might be framed which would render it unnecessary. This could be done
only by making the authority of the government supreme in relation to
the rights and powers that might be committed to it; and it could be
made so only by applying its legislation to individuals through the
intervention of a judiciary. A confederacy whose legislative power
operates only upon States, or upon masses of people in a collective
capacity, can be supreme only so far as it can employ superior force;
and when the issue that is to determine the question of supremacy is
once made up in that form, there is an actual civil war.
The introduction, therefore, of a judicial department into the new
plan of government, of itself evinces an intention to clothe that
government with powers that could be executed peacefully, and without
the necessity of putting down the organized opposition of subordinate
communities. By their resort to this great instrumentality, we may
perceive how much, in this particular, the framers of the Constitution
were aided by the spirit and forms of the institutions which the
people of these States had already framed for their separate
governments. The common law, which the founders of all these States
had brought with them to this country, had accustomed them to regard
the judiciary as clothed with functions in which two important objects
were embraced. By the known course of that jurisprudence the judiciary
is, in the first place, the department which declares the construction
of the laws; and, in the second place, when that department has
announced the construction of a law, it is not only the particular
case that is settled, but the rule is promulgated that is to determine
all future cases of the same kind arising under the same law. Thus the
judiciary, in governments whose adjudications proceed upon the course
of the common law, becomes not merely the arbitrator in a particular
controversy, but the department through which the government
interprets the rule of action prescribed by the legislature, and by
which all its citizens are to be guided. This office of the judicial
department had long been known in all the States of the Union at the
time of the formation of the national Constitution.
By the introduction of this department into their plan of government,
the framers of the Constitution obviously intended that it should
perform the same office in their national system which the
corresponding department had always fulfilled in the States. No other
function of a judiciary was known to the people of the United States,
and this function was both known and deemed essential to a
well-regulated liberty. It was known that the judicial department of a
government is that branch by which the meaning of its laws is
ascertained, and applied to the conduct of individuals. To effect
this, it was introduced into the system whose gradual formation and
development we are now examining.
The committee not only declared that this department, like the
legislative and the executive, was to be "supreme," but they
proceeded to make it so. One of the first questions that arose
concerning the construction of the judiciary was, whether it should
consist solely of one central tribunal, to which appeals might be
carried from the State courts, or should also embrace inferior
tribunals to be established within the several States. The latter plan
was resisted as an innovation, which, it was said, the States would
not tolerate. But the necessity for an effective judiciary
establishment, commensurate with the legislative authority, was
generally admitted, and a large majority of the States were found to
be in favor of conferring on the national legislature power to
establish inferior tribunals;[38] while the provision for a supreme
central tribunal was to be made imperative by the Constitution.
The intention of the committee also to make the judicial coextensive
with the legislative authority, appears from the definition which they
gave to both. Upon the national legislature they proposed to confer,
in addition to the rights vested in Congress by the Confederation,
power to legislate in all cases to which the separate States were
incompetent, or in which the harmony of the United States might be
interrupted by the exercise of individual legislation; and the further
power to negative all laws passed by the several States contravening,
in the opinion of the national legislature, the Articles of Union, or
any treaties subsisting under the authority of the Union. The
jurisdiction of the national judiciary it was declared should extend
to all cases which respect the collection of the national revenue, and
to impeachments of national officers; and then the comprehensive
addition was made of "questions which involve the national peace and
harmony." This latter provision placed the general objects, which it
was declared ought to be embraced by the legislative power, within the
cognizance of the judiciary. Those objects were not yet described in
detail, the purpose being merely to settle and declare the principles
on which the powers of both departments ought to be founded.
But, as we have already had occasion to see, the idea of vesting in
the judicial department such control over the legislation of the
separate States as might be surrendered by them to the national
government, was not yet propounded. The principle which was to
ascertain the extent of that control was already introduced and acted
upon, namely, that it should embrace all laws of the States which
might conflict with the Constitution, or the treaties made under the
national authority. The plan at present was, as we have seen, to treat
this as a legislative power, to be executed by the direct control of a
negative. But a nearer view of the great inconveniences of such an
arrangement, and the general basis of the jurisdiction already marked
out for the national judiciary, led to the development of the
particular feature which was required as a substitute for direct
interference with the legislative powers of the States. In truth, the
important principle which proposed to extend the judicial authority to
questions involving the national peace and harmony, embraced all the
power that was required; and it only remained to be seen that the
exercise of that power by the indirect effect of judicial action on
the laws of the States after they had been passed, was far preferable
to a direct interference with those laws while in the process of
enactment.
The committee, with complete unanimity, determined that the judges of
the supreme tribunal should hold their offices during good
behavior.[39] This tenure of office was taken from the English
statutes, and from the constitutions of some of the States which had
already adopted it. The commissions of the judges in England, until
the year 1700, were prescribed by the crown; and although they were
sometimes issued to be held during good behavior, they were generally
issued during the pleasure of the crown, and it was always optional
with the crown to adopt the one or the other tenure, as it saw fit.
But in the statute passed in the thirteenth year of the reign of
William III., which finally secured the ascendency of the Protestant
religion in that country, and made other provisions for the rights and
liberties of the subject, it was enacted that judges' commissions
should be made during good behavior, and that their salaries should be
ascertained and established; but it was made lawful for the crown to
remove them upon the address of both houses of Parliament.[40] Still,
however, it was always considered that the commissions of the judges
expired on the death of the king; and for the purpose of preventing
this, and in order to make the judges more effectually independent, a
new statute, passed in the first year of the reign of George III.,
declared that the commissions of the judges should continue in force
during their good behavior, notwithstanding the demise of the crown;
and that such salaries as had been once granted to them should be paid
in all future time, so long as their commissions should remain in
force. The provision which made them removable by the crown on the
address of both houses of Parliament was retained and re-enacted.[41]
In framing the Constitution of the United States, the objectionable
feature of the English system was rejected, and its valuable
provisions were retained. No one, at the stage of the proceedings
which we are now examining, proposed to make the judges removable on
the address of the legislature; and although at a much later period
this provision was brought forward, it received the vote of a single
State only. The first determination of the Convention, in committee of
the whole, was, that the judges should hold their offices during good
behavior; that they should receive punctually, at stated times, a
fixed compensation for their services, in which no _increase_[42] or
diminution should be made so as to affect the persons actually in
office at the time.
The appointment of the judges was by general consent, at this stage of
the proceedings, vested in the Senate.
* * * * *
NOTE ON THE JUDICIAL TENURE.
The English historians and juridical writers have not given a
very satisfactory account of the purpose for which the power
of removal on the address of the two Houses of Parliament was
incorporated with the provision which gave the judges their
commissions during good behavior. It is obvious that, if the
power of removal is to be regarded as an unqualified power,
to be exercised for any cause, or without the existence of
any cause, the office is held during the pleasure of the
legislative and executive branches of the government, and not
during the official good conduct of the incumbent. In this
view of it, therefore, the provision is inconsistent with the
declared tenure of the commission. On the other hand, if the
_power_ of removal is not to be regarded as a limitation upon
the tenure of the office, but the _process_ of removal is to
be considered as a mode in which the unfitness or incapacity
of the incumbent is to be ascertained,--treating it as a
substitute for impeachment, to be used in cases of palpable
official incapacity or unfitness,--then it is not repugnant
to the tenure of good behavior. In support of this view of
the subject it is to be observed that, in the statute of 1
Geo. III. c. 23, the tenure of good behavior is made the
leading and primary object of the enactment. The motives for
it are set forth with great point and emphasis. The King is
made to declare from the throne to the two houses of
Parliament that he looks upon the independency and
uprightness of judges as essential to the impartial
administration of justice, as one of the best securities to
the rights and liberties of the subject, and as most
conducive to the honor of the crown. The enacting part of the
statute, which follows this recital, provides anew that the
judges' commissions shall be and remain in force during their
good behavior, notwithstanding a demise of the crown; and
the power of removal by the King, on the address of both
houses, follows this enactment as a _proviso_. If, therefore,
a not unusual rule of construction is applied, the power
embraced in the _proviso_ should be so construed as to make
its operation consistent with, and not repugnant to, the
great purpose of the statute, which was to establish the
tenure of good behavior. In this view the rightful exercise
of the power may be confined to cases where the individual is
no longer within that tenure, or, in other words, where the
good behavior has ceased, or become impossible. Upon this
construction the power of removal can only be rightfully
exercised when a cause exists which touches the official
conduct or capacity of the incumbent.
In the Constitution of the State of Massachusetts, formed in
1780, the power of removal by the executive, on the address
of both houses of the legislature, was adopted from the
English statutes, and it was introduced as a _proviso_ after
the tenure of good behavior had been emphatically declared
for all judicial officers, just as it stands in the act of 1
Geo. III.
An objection which has sometimes been urged against the
construction above suggested is, that it is narrower than the
terms of the provision, and that it would not include a case
where a judge may have discharged all his official duties
with propriety and ability, and may yet be personally
obnoxious, as, for example, on account of gross immorality.
But the answer to this objection is, that the question,
whether a case of official good conduct accompanied by
personal immorality, or the like defect of character, was
intended to be within the power of removal, must be
determined on a careful view of the whole provision. The
meaning and scope of the qualification of "good behavior"
must be first ascertained. If it means simply that the
individual is to hold his commission so long as each official
duty is discharged in the manner contemplated by law, then a
mere personal immorality, which has not affected or
influenced the discharge of official duty, is not
inconsistent with the good behavior established as the tenure
of the office. But if the good behavior means, not merely
that the individual shall discharge his official duties in a
competent manner, with an average amount of ability, and
without corruption, but that he shall so order his life and
conversation as not to expose himself to a cessation of the
power to act intelligently and uprightly, then there may
undoubtedly be a case of personal immorality that would touch
the tenure of the office. Still it must be the tenure of the
office that is touched, and it must be touched by misconduct
or incapacity. The phrase "good behavior" is technical, and
has always had a meaning attached to it which confines it to
the discharge of official duty. It is, therefore, not what
men think of the individual, or how they feel towards him,
or how they regard him, but what he does or omits officially,
that is to determine whether he continues to behave well in
his office; and unless some conduct, or some bodily or mental
condition, is adduced, that shows him to be incapable of
fulfilling the duties of his station in the manner in which
the law intends they shall be discharged, his tenure of good
behavior is not lost.
But the naked power of removal by the other two branches of
the government exists in the English constitution, and in
that of the State of Massachusetts, without any declaration
of the purposes or occasions to which it is to be applied;
and it is not easy to reconcile it with the avowed object of
judicial independence obviously embraced by the terms of the
commission prescribed in both of them. The two most important
native writers on the English constitution, Sir William
Blackstone and Mr. Hallam, regard the provision as a
restraint on the former practice of the crown, of dismissing
judges when they were not sufficiently subservient to the
views of the government in political prosecutions. Mr.
Hallam, after referring to the provisions of the two
statutes, lays down the proposition, that "no judge can be
dismissed from office, except in consequence of a conviction
for some offence, or the address of both houses of
Parliament, which is tantamount to an act of the
legislature." (Constitutional History, III. 262.) He suggests
further, that although the commissions of the judges cannot
be vacated by the authority of the crown, yet that they are
not wholly out of the reach of its influence. They are
accessible to the hope of further promotion, to the zeal of
political attachment, to the flattery of princes and
ministers, and to the bias of their professional training. He
therefore commends the wisdom of subjecting them in some
degree to legislative control. (Ibid.) But it is not to be
inferred from his remarks that that control can be rightfully
exercised without the existence of a cause which affects
their good behavior. On the contrary, he appears to consider
that the purpose was to prevent a subserviency to the crown
in their official conduct, by subjecting _that conduct_ to
legislative scrutiny. To the honor of England, it is to be
remembered that, since this power was recognized, there has
never been an instance in which a judge has been removed for
political or party purposes.