the subject. He says: "The object of the act of Parliament
was to secure the judges from removal at the mere pleasure of
the crown; but not to render them independent of the action
of Parliament. By the theory of the British constitution,
every act of Parliament is supreme and omnipotent. It may
change the succession to the crown, and even the very
fundamentals of the constitution. It would have been absurd,
therefore, to have exempted the judges alone from the
general jurisdiction of this supreme authority in the realm.
The clause was not introduced into the act for the purpose of
conferring the power on Parliament, for it could not be taken
away or restricted, but simply to recognize it as a
qualification of the tenure of office; so that the judges
should have no right to complain of any breach of an implied
contract with them, and the crown should not be deprived of
the means to remove an unfit judge whenever Parliament
should, in their discretion, signify their assent."
(Commentaries on the Constitution, Vol. II. § 1623.)
By describing it as a "qualification of the tenure of
office," the learned commentator probably did not mean that
the power was intended to be recognized as a power to remove
judges against whom no official misconduct or incapacity
could be charged; for the context shows that he was speaking
of the removal of "unfit" judges as a power that it was
proper to recognize and regulate. If he intended to lay it
down as a complete and actual qualification of the tenure of
good behavior, it must have been upon the theory to which he
refers, upon which an act of Parliament can do anything,
either with or without reason. Upon this theory all the
commissions of all the judges in the realm may be vacated
without inquiry into their fitness or unfitness. But if the
true view of the subject is, that the _King's commission_,
which runs _quamdiu se bene gesserit_, cannot be determined
when the crown alone decides that the good behavior has
ceased, or become impracticable, but may be determined when
the whole legislative power has so decided, then in one sense
it _is_ a qualification of the commission; because the latter
emanates from the crown, but after it has issued, it is to be
superintended by Parliament _and_ the crown.
When we turn to our American constitutions, all embarrassment
arising from the English theory of the omnipotence of the
legislative department vanishes. In our systems of government
the people alone possess supreme power. The legislature is
but the organ of their will for certain specific and limited
purposes, which are carefully defined in a written
constitution; and no power that is not plainly confided by
the constitution to the legislative and executive departments
of the government can be exercised by them. Under every
American constitution, therefore, which has conferred upon
the executive power to remove a judge upon the address of the
two houses of the legislature, the question whether that
power extends to any cases but those of official misconduct
or incapacity must be determined by a careful consideration
of the position which that constitution assigns to the
judiciary. If, as is the case, for example, under the
Constitution of the State of Massachusetts, there is a clear
intention manifest to make the judiciary independent of the
other departments, and this intention appears by other
provisions, and the enunciation of other principles besides
that which in terms establishes the tenure of good behavior,
then the power of removal upon address ought to be construed
and exercised consistently with the tenure of good behavior,
and not in direct repugnance to it. It is plain that, if the
power is construed as a naked and unrestrained power,
established as a direct qualification of the tenure of
office, it may be used for party purposes, and may be
exercised for any cause for which a dominant party may see
fit to employ it.
The danger of the abuse of this power, arising from the
absence of any express restriction upon it, and of any
statement of its purpose, in the Constitution of
Massachusetts, has led to an unsuccessful effort in that
State to make its exercise more difficult than it is under
the actual provision. In the Convention held in the year
1820, in which the Constitution was subjected to revision,
Mr. Webster, Mr. Justice Story, and others of the eminent
jurists of Massachusetts, endeavored to procure an amendment
requiring the address to be adopted by a vote of two thirds
in both branches, instead of allowing it to be carried, as
the Constitution has always stood, and as the rule is in
England, by a bare majority. The effort failed; but the
result of the whole discussion to which it gave rise shows
the general understanding of the people of the State with
regard to the rightful extent of this power. The Convention
was a very remarkable assembly of the intellect and worth of
the State, and both the political parties of the time were
fully represented in it, by their most distinguished members.
All were agreed that the power was capable of abuse, and that
to apply it to any other than cases of official incapacity or
unfitness would be an abuse. But those who opposed the
adoption of a two-thirds rule were unwilling to anticipate
such an abuse of the power, and their arguments prevailed.
The framers of the Constitution of the United States
intrusted no such power over the judiciary to the other
branches of the government. They regarded the possibility of
its being used for improper purposes as a sufficient reason
why it should not exist. They thought it, moreover, a
contradiction in terms to say that the judges should hold
their offices during good behavior, and yet be removable
without a trial. But the radical objection was one that does
not seem to have been sufficiently attended to in the early
formation of some of the State constitutions, but which the
peculiar system established by the Constitution of the United
States made especially prominent.
That Constitution was designed to be in some respects an
abridgment of the previous powers of the States. Like the
State constitutions, also, it embraced a careful
distribution of the powers of government between the
different departments, and a careful separation of the
functions of one department from those of another. Questions
must, therefore, necessarily arise in the administration of
the government, whether one of these departments had
overstepped the limits assigned to it as against the others,
and whether the action of the general or the State
governments in particular instances is within their
appropriate spheres. These, now familiar to us as
constitutional questions, were to be subjected to the
arbitrament of the national judiciary; and it was almost
universally felt that this delicate and important power must
be confided to judges whose tenure of office could be touched
only by the solemn process of accusation and impeachment. The
same necessity exists under a State constitution, but perhaps
not in the same degree; for while the judiciary of a State is
often called upon to decide finally upon the conformity of
acts of legislation with the State constitution,--and ought
therefore clearly to be beyond the reach of legislative
influence,--yet no State judiciary is the final arbiter
between the rights and powers of the national government and
the rights and powers of the States. This function belongs to
the supreme judiciary of the United States. It was foreseen
that it would not infrequently involve the decision of
questions in which whole classes of States might have the
deepest interest, which would connect themselves with party
discussions, and on which the representatives of the States
in the national legislature would be likely to share in the
feelings, and even in the passions, of their constituents.
There could be no security for a judiciary called upon to
decide such questions, if they were to be subject to a power
of removal by the other two branches of the government. Their
commissions might make them theoretically independent, but
practically they could be removed at the pleasure of those
whom they might have offended. In truth, there is no State in
this Union where such a power of removal is vested without
qualification in the legislative and executive departments,
in which the judges can be said to hold their commissions
during good behavior, unless that power is construed to
embrace only those cases of palpable incapacity in which an
impeachment would be unnecessary or impracticable. As a naked
and unqualified power, it is repugnant to the tenure of good
behavior. It was so regarded in the Convention which framed
the Constitution of the United States, where a proposition to
introduce it received the vote of the single State of
Connecticut only. (Madison, Elliot, V. 481, 482.)
FOOTNOTES:
[31] Adopted by the votes of eight States against two,--Connecticut
and Maryland voting in the negative.
[32] Pennsylvania, Maryland, _ay_, 2; Massachusetts, Connecticut, New
York, Delaware, Virginia, North Carolina, South Carolina, Georgia,
_no_, 8.
[33] Pennsylvania and Maryland, _no_.
[34] New York, Delaware, and Maryland, _no_.
[35] Nine States voted against it, and one (Delaware) was divided.
[36] The Federalist, No. 21.
[37] Madison, Elliot, V. p. 140.
[38] Eight States in the affirmative, two in the negative, and one
divided.
[39] This was afterwards applied to the judges of the inferior courts
also.
[40] Act 12 & 13 William III. ch. 2.
[41] Act 1 Geo. III. ch. 23.
[42] This was afterwards stricken out.
CHAPTER IV.
ADMISSION OF NEW STATES.--GUARANTY OF REPUBLICAN GOVERNMENT.--POWER OF
AMENDMENT.--OATH TO SUPPORT THE NEW SYSTEM.--RATIFICATION.
Having settled a general plan for the organization of the three great
departments of government, the committee next proceeded to provide for
certain other objects of primary importance, the necessity for which
had been demonstrated by the past history of the Confederacy. The
first of these was the admission of new States into the Union.
It had long been apparent, that the time would sooner or later arrive
when the limits of the United States must be extended, and the number
of the States increased. Circumstances had made it impossible that the
benefits and privileges of the Union should be confined to the
original thirteen communities by whom it had been established.
Population had begun to press westward from the Atlantic States with
the energy and enterprise that have marked the Anglo-American
character since the first occupation of the country. Wherever the
hardy pioneers of civilization penetrated into the wilderness of the
Northwest, they settled upon lands embraced by those shadowy
boundaries which carried the territorial claims of some of the older
States into the region beyond the Ohio. Circumstances, already
detailed in a former part of this work, had compelled a surrender of
these territorial claims to the United States; and in the efforts made
by Congress, both before and after the cessions had been completed, to
provide for the establishment of new States, and for their admission
into the Union, we have already traced one of the great defects of the
Confederation, which rendered it incapable of meeting the exigencies
created by this inevitable expansion of the country.[43]
In the year 1784, when Mr. Jefferson brought into Congress a measure
for the organization and admission of new States, to be formed upon
the territories that had been or might thereafter be ceded to the
United States, he seems to have considered that the Articles of
Confederation authorized the admission of new States formed out of
territory that had belonged to a State already in the Union, by a vote
of nine States in Congress. But a majority of the States in Congress
evidently regarded the power of admission as doubtful; and although
they passed the resolves for the admission of new States,--principally
because it was extremely important to invite cessions of Western
territory,--they left the provision as to the mode of admission so
indefinite, that the whole question of power would have to be opened
and decided on the first application that might be made by a State to
be admitted into the Union.[44]
When the Ordinance of 1787 was formed, it made provision for the
establishment of new States in the territory, and declared that, when
any of them should have sixty thousand free inhabitants, it should be
admitted into Congress on an equal footing with the original States.
But the mode of admission was not prescribed. The power to admit was
assumed, and no rule of voting on the question of admission was
referred to. The probability is, that Congress anticipated at this
time that a definite constitutional power would be provided by the
Convention that had been summoned to revise the federal system. This
power was embraced in the plan adopted in the committee of the whole
of that body, by a resolve which declared "that provision ought to be
made for the admission of States lawfully arising within the limits of
the United States, whether from a voluntary junction of government and
territory, or otherwise, with the consent of a number of voices in the
national legislature less than the whole." In what mode this provision
was made will be seen hereafter, when we come to examine the framework
of the Constitution.
Another of the new powers now proposed to be given to the Union was
that of protecting and upholding the governments of the States. I have
already had occasion to explain the relations of the Confederation to
its members in a time of internal disturbance and peril; and have
given to the incapacity of that government to afford any aid in such
emergencies great prominence among the causes which led to the
revision of the federal system.[45] Under that system the States had
been so completely sovereign, and so independent of each other in all
that related to their internal concerns, that the government of any
one of them might have been subverted without the possibility of an
authorized and regulated interference by the rest. The constitutional
and republican liberty that had been established in these States after
the Revolution had freed them from the dominion of England, was at
that period a new and untried experiment; and in order that we of this
generation may be able to appreciate the importance of the guaranty
proposed to be introduced into the Constitution of the United States,
it is necessary for us to look somewhat farther than the particular
circumstances of the commotions in New England that marked the year
1787 as an era of especial danger to these republican governments. It
is, in fact, necessary for us to remember the contemporaneous history
of Europe, and to observe how the events that were taking place in the
Old World necessarily acted upon our condition, prospects, and
welfare.
The French Revolution, consummated in 1791 by the execution of the
King, was already begun when the Constitution of the United States
went into operation. No one who has examined the history of the first
years of our present national government, can fail to have been
impressed with the dangers which the administration of our domestic
affairs incurred of becoming complicated with the politics of Europe.
As in all other countries, so in America, the events and progress of
the Revolution in France found sympathy or reprobation, according to
the natural tendencies, the previous associations, and the political
sentiments of individuals. But in the United States there was a
peculiar and predisposing cause for the liveliest interest in the
success of the principles that were believed, by large masses of the
people, to be involved in the French Revolution. Our own struggles for
liberty, our bold and successful assertion of the rights of man, and
our achievement of the means and opportunity of self-government, had
evidently and strikingly acted upon France. The people of the United
States were fully sensible of this; and transferring to the French
nation the debt of gratitude for the aid which had flowed to us in the
first instance from their government without any special influence of
their own, large numbers of our people became warmly enlisted in the
cause of that Revolution, of which the early promise seemed so
encouraging to the best hopes of mankind, and the full development of
which first ruined the interests of liberty, in the wanton excesses of
anarchy and national ambition, and finally crushed them beneath the
usurpations and necessities of military despotism. On the other hand,
the more cautious--who, if they had not from the first looked with
distrust upon the whole movement of the Revolutionary party in France,
very soon believed that it could result in no real benefit to France
or to the world--tended strongly and naturally to the side of those
governments with which the leaders of the Revolution had to contend.
In consequence of this state of feeling among different portions of
the people of the United States, with reference to French affairs, and
of the conduct of France and England towards ourselves, the
administration of Washington had great difficulty both in preserving
the neutrality of the country, and in excluding foreign influence and
interference in our domestic affairs.
Had this state of things, which followed immediately after the
inauguration of our new government, found us still under the
Confederation, there can be no doubt that our condition would have
afforded to the Revolutionary party in France the means not only of
disseminating their principles among us, but also of overturning any
of the institutions of the weaker States which might have stood in the
way of their acquiring an influence in America. Yet what form or
principle of government is there in the world, that more imperatively
requires all foreign or external influence to be repelled, than our
own republican system, of which it is a cardinal doctrine that every
institution and every law must express the uncontrolled and
spontaneous will of a majority of the people who constitute the
political society? Other governments may be upheld by the interference
of their neighbors; other systems may require, and perhaps rightfully
admit, foreign influence. Ours demand an absolute immunity from
foreign control, and can exist only when the authority of the people
is made absolutely free. That their authority should be made and kept
free to act upon the principles that enable it to operate with
certainty and safety, it requires the guaranty of a system that rests
upon the same principles, is committed to the same destiny, is itself
constituted by American power, and is created for the express purpose
of preserving the republican form, the theory and the right of
self-government.
Such was the purpose of the framers of the Constitution, when, in this
early stage of their deliberations, they determined that a republican
constitution should be guaranteed by the United States to each of the
States.[46] The object of this provision was, to secure to the people
of each State the power of governing their own community, through the
action of a majority, according to the fundamental rules which they
might prescribe for ascertaining the public will. The insurrection in
Massachusetts, then just suppressed, had made the dangers that
surround this theory of government painfully apparent. It had
demonstrated the possibility that a minority might become in reality
the ruling power. Fortunately, no foreign interference had then
intervened; but a very few years only elapsed, before a crisis
occurred, in which the institutions of the States would have been
quite unable to withstand the shocks proceeding from the French
Revolution, if the government of the Union had not been armed with
the power of protecting and upholding them.
The committee also added another new feature to their plan of
government, which was a capacity of being amended. The Articles of
Confederation admitted of changes only when they had been agreed upon
in Congress, and had afterwards been confirmed by the legislatures of
all the States. Indeed, it resulted necessarily from the nature of
that government, that it could only be altered by the consent of all
the parties to it. It was now proposed and declared, that provision
ought to be made for the amendment of the Articles of Union, whenever
it should seem necessary. This declaration looked to the establishment
of some new method of originating improvements in the system of
government, and a new rule for their adoption.
It was also determined that the members of the State governments
should be bound by oath to support the Articles of Union. The purpose
of this provision was to secure the supremacy of the national
government, in cases of collision between its authority and the
authority of the States. It was a new feature in the national system,
and received at first the support of only a bare majority of the
States.[47]
Finally, it was provided that the new system, after its approbation by
Congress, should be submitted to representative assemblies
recommended by the State legislatures, to be expressly chosen by the
people to consider and decide thereon. The question has often been
discussed, whether this mode of ratification marks in any way the
character of the government established by the Constitution. At
present it is only necessary to observe, that the design of the
committee was to substitute the authority of the people of the States
in the place of that of the State legislatures, for a threefold
purpose. First, it was deemed desirable to resort to the supreme
authority of the people, in order to give the new system a higher
sanction than could be given to it by the State governments. Secondly,
it was thought expedient to get rid of the doctrine often asserted
under the Confederation, that the Union was a mere compact or treaty
between independent States, and that therefore a breach of its
articles by any one State absolved the rest from its obligations. In
the third place, it was intended, by this mode of ratification, to
enable the people of a less number of the States than the whole to
form a new Union, if all should not be willing to adopt the new
system.[48] The votes of the States in committee, upon this new mode
of ratification, show that on one side were ranged the States that
were aiming to change the principle of the government, and on the
other the States that sought to preserve the principle of the
Confederation.[49]
These, together with a provision that the authority of the old
Congress should be continued to a given day after the changes should
have been adopted, and that their engagements should be completed by
the new government, were the great features of the system prepared by
the committee of the whole, and reported to the Convention, on the
thirteenth of June.[50]
FOOTNOTES:
[43] _Ante_, Vol. I. Book III. Chap. V.
[44] Mr. Jefferson has very lucidly stated the position of the
question in some observations furnished by him, when in Paris, to one
of the editors of the _Encyclopédie Méthodique_, in 1786 or 1787,
which I here insert entire. "The eleventh Article of Confederation
admits Canada to accede to the Confederation at its own will, but
adds, 'no other Colony shall be admitted to the same unless such
admission be agreed to by nine States.' When the plan of April, 1784,
for establishing new States, was on the carpet, the committee who
framed the report of that plan had inserted this clause: 'Provided
nine States agree to such admission, according to the reservation of
the eleventh of the Articles of Confederation.' It was objected,--1.
That the words of the Confederation, 'no other Colony,' could refer
only to the residuary possessions of Great Britain, as the two
Floridas, Nova Scotia, &c., not being already parts of the Union; that
the law for 'admitting' a new member into the Union could not be
applied to a territory which was already in the Union, as making part
of a State which was a member of it. 2. That it would be improper to
allow 'nine' States to receive a new member, because the same reasons
which rendered that number proper now would render a greater one
proper when the number composing the Union should be increased. They
therefore struck out this paragraph, and inserted a proviso, that 'the
consent of so many States in Congress shall be first obtained as may
at the time be competent'; thus leaving the question whether the
eleventh Article applies to the admission of new States to be decided
when that admission shall be asked. See the Journal of Congress of
April 20, 1784. Another doubt was started in this debate, viz. whether
the agreement of the nine States required by the Confederation was to
be made by their legislatures, or by their delegates in Congress? The
expression adopted, viz. 'so many States in Congress is first
obtained,' shows what was their sense of this matter. If it be agreed
that the eleventh Article of the Confederation is not to be applied to
the admission of these new States, then it is contended that their
admission comes within the thirteenth Article, which forbids 'any
alteration unless agreed to in a Congress of the United States, and
afterwards confirmed by the legislatures of every State.' The
independence of the new States of Kentucky and Franklin will soon
bring on the ultimate decision of all these questions." (Jefferson's
Works, IX. 251.) That the admission of a new State into the Union
could have been regarded as an alteration of the Articles of
Confederation, within the meaning and intention of the thirteenth
Article, seems scarcely probable. Such an admission would only have
increased the number of the parties to the Union, but it would of
itself have made no change in the Articles; and it was against
alterations _in the Articles_ that the provision of the thirteenth was
directed. The objections which Mr. Jefferson informs us were raised in
Congress to a deduction of the power from the eleventh Article, appear
to be decisive. In truth, when the Articles of Confederation were
framed, the subject of the admission of new States, so far as it had
been considered at all, was connected with the difficult and delicate
controversy respecting the western boundaries of some of the old
States, and the equitable claim of the Union to become the proprietor
of the unoccupied lands beyond those boundaries. An attempt was made
to obtain for Congress, in the Articles of Confederation, power to
ascertain and fix the western boundaries of those States, and to lay
out the lands beyond them into new States. But it failed (_ante_, Vol.
I. 291), and Congress could thereafter be said to possess no power to
admit new States, except what depended on a doubtful construction of
the Articles of Confederation.
Still, both when they invited the cessions of their territorial claims
by the States of Virginia, New York, &c., and after those cessions had
been made, Congress acted as if they had constitutional authority to
form new States, and to admit them into the Union. (_Ante_, Vol. I.
292-308.) When the Ordinance of 1787, for the regulation and
government of the Northwestern Territory, was adopted, the power to
admit new States was again assumed. The Convention for forming the
Constitution was, however, then sitting, and it may be that the
framers of the Ordinance introduced into that instrument the
stipulation that the new States should be admitted on an equal footing
with the old ones, in the confidence that the constitutional power
would be supplied by the Convention. At any rate, the provisions of
the Ordinance, as well as those of the previous resolves of Congress
on the same subject of the Northwestern Territory, and the position of
Kentucky, Vermont, Maine, and Tennessee (then called Franklin),
imposed upon the Convention an imperative necessity for some action
that would open the door of the Union to new members.
[45] _Ante_, Vol. I. Book III. Chap. III. pp. 260-275.
[46] As the resolution was originally passed, it declared that "a
republican constitution, and its existing laws, ought to be guaranteed
to each State by the United States." On account of the ambiguity of
the expression "existing laws," and the controversies to which it
might give rise, the provision was subsequently changed to a guaranty
of "a republican form of government," and of protection against
"invasion" and "domestic violence," as it now stands in Art. IV. Sect.
4 of the Constitution.
[47] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New
York, Delaware, and Maryland voted against it (5).
[48] See Madison, Elliot, V. 157, 158, 183.
[49] Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, _no_,
3; Delaware, Maryland, divided. See further on the subject of
"Ratification," _post_, Index.
[50] The report was in the following words:--
"1. _Resolved_, That it is the opinion of this committee that a
national government ought to be established, consisting of a supreme
legislative, executive, and judiciary.
"2. _Resolved_, That the national legislature ought to consist of two
branches.
"3. _Resolved_, That the members of the first branch of the national
legislature ought to be elected by the people of the several States
for the term of three years; to receive fixed stipends by which they
may be compensated for the devotion of their time to the public
service, to be paid out of the national treasury; to be ineligible to
any office established by a particular State, or under the authority
of the United States, (except those peculiarly belonging to the
functions of the first branch,) during the term of service, and under
the national government, for the space of one year after its
expiration.
"4. _Resolved_, That the members of the second branch of the national
legislature ought to be chosen by the individual legislatures; to be
of the age of thirty years, at least; to hold their offices for a term
sufficient to insure their independence, namely, seven years; to
receive fixed stipends, by which they may be compensated for the
devotion of their time to the public service, to be paid out of the
national treasury; to be ineligible to any office established by a
particular State, or under the authority of the United States, (except
those peculiarly belonging to the functions of the second branch,)
during the term of service, and under the national government, for the
space of one year after its expiration.
"5. _Resolved_, That each branch ought to possess the right of
originating acts.
"6. _Resolved_, That the national legislature ought to be empowered to
enjoy the legislative rights vested in Congress by the Confederation;
and, moreover, to legislate in all cases to which the separate States
are incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation; to negative all
laws passed by the several States contravening, in the opinion of the
national legislature, the Articles of Union, or any treaties
subsisting under the authority of the Union.
"7. _Resolved_, That the right of suffrage in the first branch of the
national legislature ought not to be according to the rule established
in the Articles of Confederation, but according to some equitable
ratio of representation; namely, in proportion to the whole number of
white and other free citizens and inhabitants, of every age, sex, and
condition, including those bound to servitude for a term of years, and
three fifths of all other persons not comprehended in the foregoing
description, except Indians not paying taxes in each State.
"8. _Resolved_, That the right of suffrage in the second branch of the
national legislature ought to be according to the rule established for
the first.
"9. _Resolved_, That a national executive be instituted, to consist of
a single person, to be chosen by the national legislature, for the
term of seven years, with power to carry into execution the national
laws, to appoint to offices in cases not otherwise provided for, to be
ineligible a second time, and to be removable on impeachment and
conviction of malpractice or neglect of duty; to receive a fixed
stipend, by which he may be compensated for the devotion of his time
to the public service, to be paid out of the national treasury.
"10. _Resolved_, That the national executive shall have a right to
negative any legislative act, which shall not be afterwards passed
unless by two thirds of each branch of the national legislature.
"11. _Resolved_, That a national judiciary be established, to consist
of one supreme tribunal, the judges of which shall be appointed by the
second branch of the national legislature, to hold their offices
during good behavior, and to receive punctually, at stated times, a
fixed compensation for their services, in which no increase or
diminution shall be made so as to affect the persons actually in
office at the time of such increase or diminution.
"12. _Resolved_, That the national legislature be empowered to appoint
inferior tribunals.
"13. _Resolved_, That the jurisdiction of the national judiciary shall
extend to all cases which respect the collection of the national
revenue, impeachments of any national officers, and questions which
involve the national peace and harmony.
"14. _Resolved_, That provision ought to be made for the admission of
States lawfully arising without the limits of the United States,
whether from a voluntary junction of government and territory, or
otherwise, with the consent of a number of voices in the national
legislature less than the whole.
"15. _Resolved_, That provision ought to be made for the continuance
of Congress, and their authorities and privileges, until a given day
after the reform of the Articles of Union shall be adopted, and for
the completion of all their engagements.
"16. _Resolved_, That a republican constitution, and its existing
laws, ought to be guaranteed to each State by the United States.
"17. _Resolved_, That provision ought to be made for the amendment of
the Articles of Union, whensoever it shall seem necessary.
"18. _Resolved_, That the legislative, executive, and judiciary powers
within the several States ought to be bound by oath to support the
Articles of Union.
"19. _Resolved_, That the amendments which shall be offered to the
Confederation by the Convention ought, at a proper time or times after
the approbation of Congress, to be submitted to an assembly or
assemblies of representatives, recommended by the several
legislatures, to be expressly chosen by the people to consider and
decide thereon."
CHAPTER V.
ISSUE BETWEEN THE VIRGINIA AND THE NEW JERSEY PLANS.--HAMILTON'S
PROPOSITIONS.--MADISON'S VIEW OF THE NEW JERSEY PLAN.
The nature of the plan of government thus proposed--called generally
in the proceedings of the Convention the Virginia plan--may be
perceived from the descriptions that have now been given of the design
and scope of its principal features, and of the circumstances out of
which they arose. It purported to be a supreme and a national
government; and we are now to inquire in what sense and to what extent
it was so.
Its powers, as we have seen, were to be distributed among the three
departments of a legislative, an executive, and a judiciary. Its
legislative body was to consist of two branches, one of which was to
be chosen directly by the people of the States, the other by the State
legislatures; but in both, the people of the States were to be
represented in proportion to their numbers.
Its legislative powers were to embrace certain objects, to which the
legislative powers of the separate States might be incompetent, or
where their exercise might be injurious to the national
interests;[51] and it was moreover to have a certain restraining
authority over the legislation of the States. This plan necessarily
supposed that the residue of the sovereignty and legislative power of
the States would remain in them after these objects had been provided
for; and it therefore contemplated a system of government, in which
the individual citizen might be acted upon by two separate and
distinct legislative authorities. But by providing that the
legislative power of the national government should be derived from
the people inhabiting the several States, and by creating an executive
and a judiciary with an authority commensurate with that of the
legislature, it sought to make, and did theoretically make, the
national government, in its proper sphere, supreme over the
governments of the States.
With respect to the element of stability, as depending on the length
of the tenure of office, this system was far in advance of any of the
republican governments then existing in America; for it contemplated
that the members of one branch of the legislature should be elected
for three, and those of the other branch, and the executive, for seven
years.
If we compare it with the Confederation, which it was designed to
supersede, we find greatly enlarged powers, somewhat vaguely defined;
the addition of distinct and regular departments, accurately traced;
and a totally different basis for the authority and origin of the
government itself.
Such was the nature of the plan of government proposed by a majority
of the States in Convention, for the consideration of all. It had to
encounter, in the first place, the want of an express authority in the
Convention to propose any change in the fundamental principle of the
government. The long existence of the distinctions between the
different States, the settled habit of the people of the States to act
only in their separate capacities, their adherence to State interests,
and their strong prejudices against all external power, had prevented
them from contemplating a government founded on the principle of a
national unity among the populations of their different communities.
Hence, it is not surprising that men, who came to the Convention
without express powers which they could consider as authority for the
introduction of so novel a principle, should have been unwilling to
agree to the formation of a government, that was to involve the
surrender of a large portion of the sovereignty of each State. They
felt a real apprehension lest their separate States should be lost in
the comprehensive national power which seemed to be foreshadowed by
the plans at which others were aiming. It seemed to them that the
consequence, the power, and even the existence, of their separate
political corporations, were about to be absorbed into the nation.
In the second place, the mode of reconciling the co-ordinate existence
of a national and a State sovereignty had undergone no public
discussion. At the same time, almost all the evils, the
inconveniences, and the dangers which the country had encountered
since the peace of 1783, had sprung from the impossibility of uniting
the action of the States upon measures of general concern. For this
reason, there were men in the Convention who at one time doubted the
utility of preserving the States, and who naturally considered that
the only mode in which a durable and sufficient government could be
established, was to fuse all the elements of political power into a
single mass. To those who had this feeling, the Virginia plan was as
little acceptable as it was, for the opposite reason, to others.
It was, however, from the party opposed to any departure from the
principle of the Confederation, that the first and the chief
opposition came. The delegations of Connecticut, New York (with the
exception of Hamilton), New Jersey, and Delaware, and one prominent
member from Maryland,--Luther Martin,--preferred to add a few new
powers to the existing system, rather than to substitute a national
government. They were determined not to surrender the present equality
of suffrage in Congress; and accordingly the members from the State of
New Jersey brought forward a plan of a purely "federal" character.[52]
This plan proposed that the Articles of Confederation should be so
revised and enlarged as to give to Congress certain additional powers,
including a power to levy duties for purposes of revenue and the
regulation of commerce. But it left the constitution of Congress as
it was under the Confederation, and left also the old mode of
discharging the national expenses, by means of requisitions on the
States, changing only the rule of proportion from the basis of real
property to that of free population. It contemplated an executive, to
be elected by Congress, and a supreme judiciary to be appointed by the
executive; leaving to the judiciaries of the States original
cognizance of all cases arising under the laws of the Union, and
confining the national judiciary to an appellate jurisdiction, except
in the cases of impeachments of national officers. It proposed to
secure obedience to the acts and regulations of Congress, by making
them the supreme law of the States, and by authorizing the executive
to employ the power of the confederated States against any State or
body of men who might oppose or prevent their being carried into
execution.
The mover of this system[53] founded his opposition to the plan framed
by the committee of the whole chiefly upon the want of power in the
Convention to propose a change in the principle of the existing
government. He argued, with much acuteness, that there was either a
present confederacy of the States, or there was not; that if there
was, it was one founded on the equal sovereignties of the States, and
that it could be changed only by the consent of all; that as some of
the States would not consent to the change proposed, it was necessary
to adhere to the system of representation by States; and that a
system of representation of the people of the States was inconsistent
with the preservation of the State sovereignties. The answer made to
this objection was, that although the States, in appointing their
delegates to the Convention, had given them no express authority to
change the principle of the existing constitution, yet that the
Convention had been assembled at a great crisis in the affairs of the
Union, as an experiment, to remedy the evils under which the country
had long suffered from the defects of its general government; that
whatever was necessary to the safety of the republic must, under such
circumstances, be considered as within the implied powers of the
Convention, especially as it was proposed to do nothing more than to
recommend the changes which might be found necessary; and that
although all might not assent to the changes that would be proposed,
the dissentient States could not require the others to remain under a
system that had completely failed, when they could form a new
confederacy upon wiser and better principles.[54]
It was at this point that Hamilton interposed, with the suggestion of
views and opinions that have sometimes subjected him, unjustly, to the
charge of anti-republican and monarchical tendencies and designs.
These views and opinions should be carefully considered by the reader,
not only in justice to this great statesman, but because they had much
influence, in an indirect manner, in producing the form and tone
which the Constitution finally received.
It should be recollected, in making this examination, that, so far as
there was at this time a distinct issue before the Convention, it was
presented by the New Jersey plan of a system that would leave the
sovereignties of the States almost wholly undiminished, on the one
hand, and on the other by the Virginia plan of a partial but as yet
undefined surrender of powers to a general government. The
construction of this proposed government, and the powers that it ought
to possess, were the points which Hamilton now dealt with, in the
first address which he made to the committee.
He has left it on record, that the views which he announced on this
occasion were rested upon the three following positions:--1. That the
political principles of the people of this country would endure
nothing but a republican government. 2. That, in the actual situation
of the country, it was of itself right and proper that the republican
theory should have a full and fair trial. 3. That to such a trial it
was essential that the government should be so constructed as to give
it all the energy and stability reconcilable with the principles of
that republican theory.[55] The opinions advanced by Hamilton at the
stage of the proceedings which we are now examining must always be
considered with reference to the principles which guided him, in order
that a right estimate may be formed of their influence on the final
result of the issue then pending.
After disposing of the objection that the Convention had no power to
propose a plan of government differing from the principle of the
Confederation, he proceeded to say, that there were three lines of
conduct before them: first, to make a league offensive and defensive
between the States, treaties of commerce, and an apportionment of the
public debt; secondly, to amend the present Confederation by adding
such powers as the public mind seemed ready to grant; thirdly, to form
a new government, which should pervade the whole, with decisive powers
and a complete sovereignty. The practicability of the last course, and
the mode in which the object should be accomplished, were the
important and the only real questions before them. But the solution of
those questions involved an inquiry into the principles of civil
obedience, which are the great and essential supports of all
government.
The first of these principles, he said, is an active and constant
interest in the support of a government. This principle did not then
exist in the States, in favor of the general government. They
constantly pursued their own particular interests, which were adverse
to those of the whole. The second principle is a conviction of the
utility and necessity of a government. As the general government might
be dissolved and yet the order of society would continue,--so that
many of the purposes of government would still be attainable, to a
considerable degree, within the States themselves,--a conviction of
the utility or the necessity of a general government could not at that
time be considered as an active principle among the people of the
States. The third principle is an habitual sense of obligation; and
here the whole force of the tie was on the side of State government.
Its sovereignty was immediately before the eyes of the people; its
protection they immediately enjoyed; by its hand, private justice was
administered. In the existing state of things, the central government
was known only by its unwelcome demands of money or service.
The fourth principle on which government must rely is force; by which
he meant both the coercion of laws and the coercion of arms. But as to
the general government, the coercion of laws did not exist; and to
employ the force of arms on the States would amount to a war between
the parties to the confederacy. The fifth principle was influence; by
which he did not mean corruption, but a dispensation of those regular
honors and just emoluments which produce an attachment to government.
Almost the whole weight of these was then on the side of the States,
and must remain so in any mere confederacy, rendering it in its very
nature feeble and precarious.
The lessons afforded by experience led to the evident conclusion that
all federal governments were weak and distracted. They were so,
because the strong principles which he had enumerated operated on the
side of the constituent members of the confederacy, and against the
central authority. In order, therefore, to establish a general and
national government, with any hope of its duration, they must avail
themselves of these principles. They must interest the wants of men in
its support; they must make it useful and necessary; and they must
give it the means of coercion. For these purposes, it would be
necessary to make it completely sovereign.
The New Jersey plan certainly would not produce this effect. It merely
granted the regulation of trade and a more effectual collection of the
revenue, and some partial duties, which, at five or ten per cent,
would perhaps only amount to a fund to discharge the debt of the
corporation. But there were a variety of objects which must
necessarily engage the attention of a national government. It would
have to protect our rights against Canada on the north, against Spain
on the south, and the western frontier against the savages. It would
have to adopt necessary plans for the settlement of the frontiers, and
to institute the mode in which settlements and good governments were
to be made. According to the New Jersey plan, the expense of
supporting and regulating these important matters could only be
defrayed by requisitions. This mode had already proved, and would
always be found, ineffectual. The national revenue must be drawn from
commerce,--from imposts, taxes on specific articles, and even from
exports, which, notwithstanding the common opinion, he held to be fit
objects of moderate taxation.
The radical objections to the New Jersey plan he held to be its
equality of suffrage as between the States; its incapacity to raise
forces or to levy taxes; and the organization of Congress, which it
proposed to leave unchanged. On the other hand, the great extent of
the country to be governed, and the difficulty of drawing a suitable
representation from such distances, led him to regard the Virginia
plan with doubt and hesitation. At the same time, he declared that the
system must be a representative and republican government. But
representation alone, without the element of a permanent tenure of
office in some part of the system, would not, as he believed, answer
the purpose. For, as society naturally falls into the political
divisions of the few and the many, or the majority and the minority,
some part of every good representative government must be so
constituted as to furnish a check to the mere democratic element. The
Virginia plan, which proposed that both branches of the national
legislature should be chosen by the people of the States, and that the
executive should be appointed by the legislature, presented a
democratic Assembly to be checked by a democratic Senate, and both of
them by a democratic chief magistrate. To give a Senate or an
executive thus chosen an official term a few years longer than that of
the members of the Assembly, would not be sufficient to remove them
from the violence and turbulence of the popular passions.
For these reasons, they must go as far, in order to attain stability
and permanency, as republican principles would admit. He would
therefore have the Senate and the executive hold their offices during
good behavior. Such a system would be strictly republican, so long as
these offices remained elective and the incumbents were subject to
impeachment. The term _monarchy_ could not apply to such a system, for
it marks neither the degree nor the duration of power. And in order to
obviate the danger of tumults attending the election of an executive
who should hold his office during good behavior, he proposed that the
election should be made by a body of electors, to be chosen by the
people, or by the legislatures of the States. The Assembly he proposed
to have chosen by the people of the States for three years. The
legislative _powers_ of the general government he desired to have
extended to all subjects; at the same time, he did not contemplate the
total abolition of the State governments, but considered them
essential, both as subordinate agents of the general government, and
as the administrators of private justice among their own citizens.[56]
His conclusions were, first, that it was impossible to secure the
Union by any modification of a federal government; secondly, that a
league, offensive and defensive, was full of certain evils and greater
dangers; thirdly, that to establish a general government would be very
difficult, if not impracticable, and liable to various objections.
What then was to be done? He answered, that they must balance the
inconveniences and the dangers, and choose that system which seemed to
have the fewest objections.
The plan which Hamilton then read to the Convention, the principal
features of which have thus been stated, was designed to explain his
views, but was not intended to be offered as a substitute for either
of the two others then under consideration. The issue accordingly
remained unchanged; and that issue lay between the Virginia and the
New Jersey plans, or between a system of equal representation by
States, and a system of proportionate representation of the people of
the States. Besides this radical difference, the Virginia plan
contemplated two houses, while the New Jersey plan proposed to retain
the existing system of a single body.
But in order that a sound judgment may be formed of the correctness of
Hamilton's opinions, and of the useful influence which they exerted,
it must be remembered that there was an inconsistency in the Virginia
plan, which he was then aiming to exhibit. That plan was a purely
national system; it drew both branches of the national legislature
from the people of the States, in proportion to their numbers, and
merely interposed the legislatures of the States as the electors of so
many senators as the State might be entitled to have according to the
ratio of representation. Its inconsistency lay in the fact, that,
while it would have created a government in which the proportionate
principle of representation would have obtained in both houses, making
a purely national government, in which the States, as equal political
corporations, could have exercised no direct control over its
legislation, it left the separate political sovereignties of the
States almost wholly unimpaired, taking from them jurisdiction over
such subjects only as seemed to require national legislation. The
operation of such a system must necessarily have involved perpetual
conflicts between national and State power; for the States, possessed
of a large part of their original sovereignties, and yet unable to
exert an equal control in either branch of Congress, would have been
constantly tempted and obliged to exert the indirect power of their
separate legislation against the direct and democratic force of a
majority of the people of the United States. To such a system, the
objection urged by Hamilton, that it presented a democratic House
checked by a democratic Senate, was strikingly applicable. This
objection, it is true, was not presented by him as a reason for
admitting the States to a direct and equal representation in the
government; he employed it to enforce the expediency of giving to the
Senate a different basis from that of the House, and one farther
removed from popular influences. But when, at a subsequent period, the
first great compromise of the Constitution--that between a purely
national and a purely federal system--took place by the admission of
the States to an equal representation in the Senate, the force of
Hamilton's reasoning was felt, and the necessity for a check as
between the two houses, founded on a difference of origin, which he
had so strenuously maintained, both facilitated and hastened the
concession to the demands of the smaller States.
At present, Hamilton's object, in the discussions which we are now
considering, was to show that, if the government was to be purely
national,--as was the theory of the Virginia plan, and as he
undoubtedly preferred,--it must be consistent with that theory and
with the situation in which its adoption would leave the country. It
must introduce through the Senate a real check upon the democratic
power that would act through the House, by a different mode of
election and a permanent tenure of office; and in order that the
States might not be in a situation to resist the measures of a
government designed to be national and supreme, that government must
possess complete and universal legislative power.
Surely it can be no impeachment of the wisdom or the statesmanship of
this great man, that, at a time when a large majority of the
Convention were seeking to establish a purely national system, founded
on a proportionate representation of the people of the States, he
should have pointed out the inconsistencies of such a plan, and should
have endeavored to bring it into a nearer conformity with the theory
which so many of the members and so many of the States had determined
to adopt. It seems rather to be a proof of the deep sagacity which had
always marked his opinions and his conduct, that he should have
foreseen the inevitable collisions between the powers of a national
government thus constituted and the powers of the States. The whole
experience of the past had taught him to anticipate such conflicts,
and the theory of a purely national government, when applied by the
arrangement now proposed, rendered it certain that these conflicts
must continue and increase. That theory could only be put in practice
by transferring the whole legislative powers of the people of the
States to the national government. This he would have preferred; and
in this, looking from the point of view at which he then stood, and
considering the actual position of the subject, he was undoubtedly
right.[57]
For it is not to be forgotten, that after the votes which had been
taken, and after the position assumed by the States opposed to
anything but a federal plan, the choice seemed to lie between a purely
national and a purely federal system; that the indications then were,
that the Virginia plan would be adopted; and that we owe the present
compound character of the Constitution, as a government partly
national and partly federal, not to the mere theories proposed on
either side, but to the fortunate results of a wise compromise, made
necessary by the collision between the opposite purposes and desires
of different classes of the States.
At the time when Hamilton laid his views before the Convention, there
were two parties in that body, which were coming gradually to a
struggle, not yet openly avowed, between the larger and the smaller
States, on the fundamental principle of the government. The principal
question at stake was whether there should be any national popular
representation at all. While the Virginia plan carried a popular
representation into both branches of the legislature, the New Jersey
plan excluded it, and confined the system to a representation of
States, in a single body. The larger and more populous States adhered
to the former of these two systems, because it involved the only
principle upon which they believed they could form a new Union, or
enter into new relations with the smaller members of the confederacy;
while, on the other hand, the smaller members felt that
self-preservation was for them involved in adhering to the old
principle of the Confederation. Notwithstanding the defects and
imperfections of the Virginia plan, it was deemed necessary by the
majority of the Convention to insist upon it, until the principle of
popular representation should be conceded by all, as proper to exist
in some part of the government; for an admission that it was
theoretically incorrect in its application to either branch of the
proposed legislature would have applied equally to the other branch;
and the admission that would have been involved in the acceptance of
Hamilton's propositions, namely, that in a purely national system
there must be a Senate permanently in office, and that the legislative
powers of the States must be mainly surrendered, would have tended
only to confirm the opposition and to swell the numbers of the
minority. The contest went on, therefore, as it had begun, between
the opposite principles of popular and State representation, until it
resulted in an absolute difference, requiring mutual concessions, or
an abandonment of the effort to form a Constitution.
On the day following that on which Hamilton had addressed the
committee, Mr. Madison entered into an elaborate examination of the
plan proposed by the minority. The previous Congressional experience
of this distinguished and sagacious man had well qualified him to
detect the imperfections of a system calculated to perpetuate the
evils under which the country had long suffered. His object now was to
show that a Union founded on the principle of the Confederation, and
containing no diminution of the existing powers of the States, could
not accomplish even the principal objects of a general government. It
would not, he observed, in the first place, prevent the States from
violating, as they had all along violated, the obligations of treaties
with foreign powers; for it left them as uncontrolled as they had
always been. It would not restrain the States from encroaching on the
federal authority, or prevent breaches of the federal articles. It
would not secure that equality of privileges between the citizens of
different States, and that impartial administration of justice, the
want of which had threatened both the harmony and the peace of the
Union. It would not secure the republican theory, which vested the
right and the power of government in the majority; as the case of
Massachusetts then demonstrated. It would not secure the Union against
the influence of foreign powers over its members. Whatever might have
been the case with ours, all former confederacies had exhibited the
effects of intrigues practised upon them by other nations; and as the
New Jersey plan gave to the general councils no negative on the will
of the particular States, it left us exposed to the same pernicious
machinations.
He begged the smaller States, which had brought forward this plan, to
consider in what position its adoption would leave them. They would be
subject to the whole burden of maintaining their delegates in
Congress. They and they alone would feel the power of coercion on
which the efficacy of this plan depended, for the larger States would
be too powerful for its exercise. On the other hand, if the obstinate
adherence of the smaller States to an inadmissible system should
prevent the adoption of any, the Union must be dissolved, and the
States must remain individually independent and sovereign, or two or
more new confederacies must be formed. In the first event, would the
small States be more secure against the ambition and power of their
larger neighbors, than they would be under a general government
pervading with equal energy every part of the empire, and having an
equal interest in protecting every part against every other part? In
the second event, could the smaller States expect that their larger
neighbors would unite with them on the principle of the present
confederacy, or that they would exact less severe concessions than
were proposed in the Virginia scheme?
The great difficulty, he continued, lay in the affair of
representation; and if that could be adjusted, all others would be
surmountable. It was admitted by both of the gentlemen from New
Jersey,[58] that it would not be just to allow Virginia, which was
sixteen times as large as Delaware, an equal vote only. Their language
was, that it would not be safe for Delaware to allow Virginia sixteen
times as many votes. Their expedient was, that all the States should
be thrown into one mass, and a new partition be made into thirteen
equal parts. Would such a scheme be practicable? The dissimilarities
in the rules of property, as well as in the manners, habits, and
prejudices of the different States, amounted to a prohibition of the
attempt. It had been impossible for the power of one of the most
absolute princes in Europe,[59] directed by the wisdom of one of the
most enlightened and patriotic ministers that any age had
produced,[60] to equalize in some points only the different usages and
regulations of the different provinces. But, admitting a general
amalgamation and repartition of the States to be practicable, and the
danger apprehended by the smaller States from a proportional
representation to be real, would not their special and voluntary
coalition with their neighbors be less inconvenient to the whole
community and equally effectual for their own safety?[61] If New
Jersey or Delaware conceived that an advantage would accrue to them
from an equalization of the States, in which case they would
necessarily form a junction with their neighbors, why might not this
end be attained by leaving them at liberty to form such a junction
whenever they pleased? And why should they wish to obtrude a like
arrangement on all the States, when it was, to say the least,
extremely difficult, and would be obnoxious to many of the
States,--and when neither the inconvenience nor the benefit of the
expedient to themselves would be lessened by confining it to
themselves? The prospect of many new States to the westward was
another consideration of importance. If they should come into the
Union at all, they would come when they contained but few inhabitants.
If they should be entitled to vote according to their proportion of
inhabitants, all would be right and safe. Let them have an equal vote,
and a more objectionable minority than ever might give law to the
whole.[62]
At the close of Mr. Madison's remarks, the committee decided, by a
vote of seven States against three, one State being divided, to report
the Virginia plan to the Convention. The delegation of New York (with
the exception of Hamilton), and those of New Jersey and Delaware,
constituted the negative votes. The vote of Maryland was divided by
Luther Martin, who had constantly acted with the minority. The vote of
Connecticut was given for the report, but she was not long to remain
on that side of the question.[63]
NOTE ON THE OPINIONS OF HAMILTON.
The idea has been more or less entertained, from the time of
the Convention to the present day, that Hamilton desired the
establishment of a _monarchical_ government. This impression
has arisen partly from the theoretical opinions on government
which he undoubtedly held, and which he expressed with entire
freedom in the course of the debate, of which an account has
been given in the previous chapter; and partly from the
nature of some of his propositions, especially that for an
executive during good behavior, which has been sometimes
assumed to have been the same thing as an executive for life.
I believe that the imputation of a purpose on his part to
bring about the establishment of any system not essentially
republican in its spirit and forms, is unfounded and unjust,
and that it can be shown to be so.
Mr. Luther Martin, in his celebrated letter or report to the
legislature of Maryland on the doings of the Federal
Convention, referred to a distinct monarchical party in that
body, "whose object and wish," he said, "it was to abolish
and annihilate all State governments, and to bring forward
one general government over this whole continent, of a
monarchical nature, under certain restrictions and
limitations. Those who openly avowed this sentiment," he
said, "were, it is true, but few; yet it is equally true,
that there was a considerable number who did not openly avow
it, who were, by myself and many others of the Convention,
considered as being in reality favorers of that sentiment and
acting upon those principles, covertly endeavoring to carry
into effect what they well knew openly and avowedly could not
be accomplished." He then goes on to say, that there was a
second party, who were "not for the abolition of the State
governments, nor for the introduction of a monarchical
government under any form; but they wished to establish such
a system as could give their own States undue power and
influence, in the government, over the other States." "A
third party," he adds, "was what I considered _truly federal
and republican_"; that is to say, it consisted of the
delegations from Connecticut, New York, New Jersey, Delaware,
and in part from Maryland, and of some members from other
States, who were in favor of a federal equality and the old
principle of the Confederation.
Upon this rule of classification, the test of republicanism
was to be found in the views entertained by members upon the
question whether the State governments ought to be abolished.
Mr. Martin, indeed, went further, and considered those only
as _truly_ republican, who were in favor of a purely federal
system, and opposed to any plan of popular representation.
Now it is quite clear, that the abolition of the State
governments, so far as that subject was considered at all,
and in the sense in which it was at any time mentioned, did
not necessarily lead to _monarchy_ as a conclusion. The
reduction of the State governments to local corporations and
to the position of subordinate agents of the central
government, was considered by some as a necessary consequence
of a national representative government. This arose from the
circumstance that a union of federal and national
representation had nowhere been witnessed, and had not
therefore been considered. I have already suggested, in the
text, that, if the framers of the Constitution had gone on to
the adoption of a pure system of popular and proportional
representation in all the branches of the government, they
must inevitably have bestowed upon that government full
legislative power over all subjects; otherwise, they would
have left the States, possessed of the sovereign powers of a
distinct political organization, to contend with the national
government by adverse legislation. The subsequent expedient
of a direct and equal representation of the States in one
branch of the government has in reality, to a great degree,
disarmed State jealousy and opposition, by giving to the
States as political bodies an equal voice in the check
established by the branch in which they are represented.
So that to argue, that, because there were men who saw the
necessity for making a purely national or proportionate
system of popular representation consistent with the
situation in which it would place the country, they were
therefore in favor of a monarchical system, was to argue from
premises to a conclusion in no way connected. Had such a plan
been carried out, it could have been, and must have been,
purely republican in all its details; and it would have been
liable to the reproach of being _monarchical_ in no other
sense than any system which did not yield the point of a full
federal equality, for which Mr. Martin and his party
contended.
Undoubtedly, Hamilton, as I have said, was in favor of
bestowing upon the national government full _power_ to
legislate upon all subjects; and to this extent, and in this
sense, he proposed the abolition of the State governments.
But any one who will attend carefully to the course of his
argument,--imperfectly as it has been preserved,--will find
that it embraces the following course of reasoning. All
federal governments are weak and distracted. In order to
avoid the evils incident to that form, the government of the
American Union must be a national representative system. But
no such system can be successful, in the actual situation of
this country, unless it is endowed with all the principles
and means of influence and power which are the proper
supports of government. It must therefore be made completely
sovereign, and State power, as a separate legislative
authority, must be annihilated; otherwise, the States will be
not only able, but will be constantly tempted, to exert their
own authority against the authority of the nation. I have
already expressed the opinion, that in this view of the
subject, assuming that the States were not to be admitted to
an equal representation as political corporations in any
branch of the government,--as the framers and friends of the
Virginia plan had thus far contended,--Hamilton was right. I
believe that a constitution, in which the States had not been
placed upon an equal footing in one branch of the legislative
power, and under which the State sovereignties had been left
as they were left by the system actually adopted, if it could
have been ratified by all the States, could not have endured
to our times. Yet the fortunate result of the mixed system
that is embraced in the Constitution of the United States, is
the product, not simply of either of the theories of a
national or a federal government, but of a compromise between
the two.
But the charge of anti-republican tendencies or designs has
been most often urged against Hamilton, on account of his
theoretical opinions concerning the comparative merits of
different governments, and of certain features of the plan of
a constitution which he read to the Convention. With respect
to these points, I shall state the results of a very careful
examination which I have made of all the sources of
information as to the views and opinions which he expressed
or entertained. Mr. Madison has given us what he probably
intended as a full report of at least the substance of
Hamilton's great speech addressed to the committee of the
whole, and has informed us that his report was submitted to
Colonel Hamilton, who approved it, with a few verbal changes.
But how meagre a report, which fills but six pages in the
octavo edition of Mr. Madison's "Debates," must have been in
comparison with the speech actually made by Hamilton, will
occur to every reader who notices the fact that the speech
occupied the entire session of one day (June 18), and who
examines the brief from which he spoke, and which is still
extant. (Hamilton's Works, II. 409.)
He was an earnest, and I am inclined to think a fervid and
rapid speaker. Certainly he spoke from a mind full of
knowledge of the principles and the working of other systems
of polity, and possessed of resources which have never been
excelled in any statesman who has been called to aid in the
work of creating a government. The topics set down in his
brief exhibit a very wide range of thought, enriched by
copious illustrations from the history and experience of
other countries, and from the views of the most important
writers on government; while the whole argument bears
logically and closely upon the actual situation of our
confederacy and upon the questions at issue. It is not
probable, therefore, that Mr. Madison's report gives us an
adequate idea of the speech, or fully exhibits its reasoning.
I have collated it, sentence by sentence, with the report in
Judge Yates's Minutes, and with Hamilton's own brief, and
have prepared for my own use a draft containing the substance
of what these three sources can give us. The results may be
thus given:--
1. That Hamilton, in stating his views of the theoretical
value of different systems of government, frankly expressed
the opinion that the British constitution was the best form
which the world had then produced;--citing the praise
bestowed upon it by Necker, that it is the only government
"which unites public strength with individual security."
2. That, with equal clearness, he stated it as his opinion
that none but a republican form could be attempted in this
country, or would be adapted to our situation.
3. That he proposed to look to the British Constitution for
nothing but those elements of stability and permanency which
a republican system requires, and which may be incorporated
into it without changing its characteristic principles.
The only question that remains, in order to form a judgment
of his purposes, is, whether there was anything in the plan
of a constitution drawn up by him that is inconsistent with
the spirit of republican liberty. The answer is, that there
was not. There is throughout this plan a constant recognition
of the authority of the people, as the source of all
political power. It proposed that the members of the Assembly
should be elected by the people directly, and the members of
the Senate by electors chosen for the purpose by the people.
The executive was in like manner to be chosen by electors,
appointed by the people or by the State legislatures. So far,
therefore, his plan was as strictly republican, as is that of
the Constitution under which we are actually living. But he
proposed that the executive and the senators should hold
their offices _during good behavior_; and this has been his
offence against republicanism, with those who measure the
character of a system by the frequency with which it admits
of rotation in office. His accusers have failed to notice
that he made his executive personally responsible for
official misconduct, and provided that both he and the
senators should be subject to impeachment and to removal from
office. This was a wide departure from the principles of the
English constitution, and it constitutes a most important
distinction between a republican and a monarchical system,
when it is accompanied by the fact that the office of a ruler
or legislator is attained, not by hereditary right, or the
favor of the crown, but by the favor and choice of the
people.
I have thus stated the principal points to which the
inquiries of the reader should be directed in investigating
the opinions of this great man, because I believe it to be
unjust to impute to him any other than a sincere desire for
the establishment and success of republican government. That
he desired a strong government, that he was little disposed
to dogmatize upon abstract theories of liberty, and that he
trusted more to experience than to hypothesis, may be safely
assumed. But that he ardently desired the success of that
republican freedom which is founded on a perfect equality of
rights among citizens, exclusive of hereditary distinctions,
is as certain as that he labored earnestly throughout his
life for the maxims, the doctrines, and the systems which he
believed most likely to secure for it a fair trial and
ultimate success. (See his description of his own opinions,
when writing of himself as a third person in 1792; Works,
VII. 52.)
That the system of government sketched by Hamilton was not
received by many of those who listened to him with
disapprobation on account of what has since been supposed its
_monarchical_ character, we may safely assume, on the
testimony of Dr. Johnson of Connecticut, one of the most
moderate men in the Convention. Contrasting the New Jersey
and Virginia plans, he is reported (by Yates) to have said:
"It appears to me that the Jersey plan has for its principal
object the preservation of the State governments. So far it
is a departure from the plan of Virginia, which, although it
concentrates in a distinct national government, is not
totally independent of that of the States. A gentleman from
New York, with boldness and decision, proposed a system
totally different from both; _and although he has been
praised by everybody_, he has been supported by none."
(Yates's Minutes, Elliot, I. 431.)
Even Luther Martin did not seem to regard the objects of what
he calls the monarchical party as being any worse, or more
dangerous to liberty, than the projects of those whom he
represents as aiming to obtain undue power and influence for
their own States, and whom at the same time he acquits of
monarchical designs or a desire to abolish the State
governments. The truth is, that nobody had any improper
purposes, or anything at heart but the liberties and
happiness of the people of America. We are not to try the
speculative views of men engaged in such discussions as these
by the charges or complaints elicited in the heats of
conflicting opinions and interests, inflamed by a zeal too
warm to admit the possibility of its own error, or to
perceive the wisdom and purity of an opponent.
FOOTNOTES:
[51] The regulation of commerce was not, any more than other specific
powers, otherwise provided for than by these general descriptions.
[52] This, together with the Virginia plan, which was recommitted
along with it, was referred to a second committee of the whole, June
15th.
[53] William Patterson of New Jersey.
[54] See the remarks of Wilson, Pinckney, and Randolph, as given in
Madison, Elliot, V. 195-198.
[55] See his letter of September 16, 1803, addressed to Timothy
Pickering; first published in Niles's Register, November 7, 1812.
[56] See the note at the end of this chapter.
[57] See the note at the end of this chapter.
[58] Mr. Brearly and Mr. Patterson.
[59] Louis XVI.
[60] Necker.
[61] Mr. Patterson had said, that, if they were to depart from the
principle of equal sovereignty, the only expedient that would cure the
difficulty would be to throw the States into hotchpot. To say that
this was impracticable, would not make it so. Let it be tried, and
they would see whether Massachusetts, Pennsylvania, and Virginia would
accede to it. (Madison, Elliot, V. 194.)
[62] Elliot, V. 206-211.
[63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was
taken, and the committee of the whole were discharged, on the 19th of
June.
CHAPTER VI.
CONFLICT BETWEEN THE NATIONAL AND FEDERAL SYSTEMS.--DIVISION OF THE
LEGISLATURE INTO TWO CHAMBERS.--DISAGREEMENT OF THE STATES ON THE
NATURE OF REPRESENTATION IN THE TWO BRANCHES.--THREATENED DISSOLUTION
OF THE UNION.
We are now approaching a crisis in the action of the Convention, the
history of which is full of instruction for all succeeding generations
of the American people. We have witnessed the formation of a minority
of the States, whose bond of connection was a common opposition to the
establishment of what was regarded as a "national" government. The
structure of this minority, as well as that of the majority to which
they were opposed, the motives and purposes by which both were
animated, and the results to which their conflicts finally led, are
extremely important to be understood by the reader.
The relative rank of the different States in point of population, at
the time of the formation of the Constitution, was materially
different from what it is at the present day. Virginia, then the first
State in the Union, is now the fourth. New York, now at the head of
the scale, then ranked after North Carolina and Massachusetts, which
occupied the third and fourth positions in the first census, and which
now occupy respectively the sixth and tenth. South Carolina, which
then had a smaller population than Maryland, now has a much greater.
Georgia at that time had not half so many inhabitants as New Jersey,
but now has twice as many.
Great inequalities existed, as they still exist, between the different
members of the confederacy, not only in the actual numbers of their
inhabitants, and their present wealth, but in their capacity and
opportunity of growth. Virginia, with a population fourteen times as
large, had a territorial extent of thirty times the size of Delaware.
Pennsylvania had nearly seven times as many people as Rhode Island,
and nearly forty times as much territory. The State of Georgia
numbered a little more than a third as many people, but her territory
was nearly twelve times as large as the territory of Connecticut.
The four leading States, Virginia, Pennsylvania, North Carolina, and
Massachusetts, had an obvious motive for seeking the establishment of
a government founded on a proportionate representation of their
respective populations. The States of South Carolina and Georgia had
generally acted with them in the formation of the Virginia plan; and
these six States thus constituted the majority by which the principle
of what was called a "national," in distinction from a "federal"
government, had been steadily pressed to the conclusions arrived at in
the committee of the whole, and now embraced in its report.[64] All
but two of them were certain to remain slaveholding States; but in the
adoption of numbers as the basis of representative influence in the
government, they all had a common interest, which led them for the
present to act together.[65]
At the head of the minority, or the States which desired a government
of federal equality, stood the State of New York, then the fifth State
in the Union. She was represented by Alexander Hamilton, Robert Yates,
and John Lansing, Junior. The two latter uniformly acted together, and
of course controlled the vote of the State. Hamilton's vote being thus
neutralized, his influence on the action of the Convention extended no
farther than the weight and importance attached to his arguments by
those who listened to them.
Occupying at that period nearly a middle rank between the largest and
the smallest of the States with respect to population, New York had
not yet grasped, or even perceived, the wonderful elements of her
future imperial greatness. Her commerce was not inconsiderable; but it
had hitherto been the disposition of those who ruled her counsels to
retain its regulation in their own hands, and to subject it to no
imposts in favor of the general interests of the Union. Most of her
public men, also,[66] held it to be impracticable to establish a
general government of sufficient energy to pervade every part of the
United States, and to carry its appropriate benefits equally to all,
without sacrificing the constitutional rights of the States to an
extent that would ultimately prove to be dangerous to the liberties of
their people. Their view of the subject was, that the uncontrolled
powers and sovereignties of the States must be reserved; and that,
consistently with the reservation of these, a mode might be devised of
granting to the confederacy the moneys arising from a general system
of revenue, some power of regulating commerce and enforcing the
observance of treaties, and other necessary matters of less moment.
This was the opinion of Yates, the Chief Justice of the State, who may
be taken as a fair representative of the sentiments of a large part,
if not of a majority, of its people at this time.[67] But neither he,
nor any of those who concurred with him, succeeded in pointing out the
mode in which the power to collect revenues, to regulate commerce, and
to enforce the observance of treaties, could be conferred on the
confederacy, without impairing the sovereignties of the States. It
does not appear whether this class of statesmen contemplated a grant
of full and unrestrained power over these subjects to a federal
government, or whether they designed only a qualified grant, capable
of being recalled or controlled by the parties to the confederacy, for
reasons and upon occasions of which those parties were to judge. From
the general course of their reasoning on the nature of a federal
government, it might seem that the latter was their intention.[68] It
is not difficult to understand how these gentlemen may have supposed
that an irrevocable grant of powers to a general government might be
dangerous to the liberties of the people of the States, because such a
grant would involve a surrender of more or less of the original State
sovereignties to a legislative body external to the State itself. But
if they supposed that a grant of such powers could be made to a
"federal" government, or a political league of the States, acting
through a single body in the nature of a diet, and to be exercised
when necessary by the combined military power of the whole, and yet be
any less dangerous to liberty, it is difficult to appreciate their
fears or to perceive the consistency of their plan. If the liberties
of the people were any the less exposed under their system, than under
that of a "national" government, it must have been because their
system was understood by them to involve only a qualified and
revocable surrender of State sovereignty.
But however this may have been, there was undoubtedly a settled
conviction on the part of the two delegates of New York who controlled
the vote of the State in the Convention, that they had not received
the necessary authority from their own State to go beyond the
principle of the Confederation; that it would be impracticable to
establish a general government, without impairing the State
constitutions and endangering the liberties of the people; and that
what they regarded as a "consolidated" government was not in the
remotest degree within the contemplation of the legislature of New
York when they were sent to take their seats in the Convention.
The same sentiments, with far greater zeal, with intense feeling and
some acrimony, were held and acted upon by Luther Martin of Maryland,
a very eminent lawyer, and at that time Attorney-General of the State,
who sometimes had it in his power, from the absence of his colleagues,
to cast the vote of his State with the minority, and who generally
divided it on all critical questions that touched the nature of the
government. The State itself, with a population but a little less than
that of New York, had no great reason to regard itself as peculiarly
exposed to the dangers to be apprehended from combinations among the
larger States to oppress the smaller; and it does not appear that
these apprehensions were strongly felt by any of her representatives
excepting Mr. Martin.[69] The great energy and earnestness, however,
of that distinguished person, prevented a concurrence of the State
with the purposes and objects of the majority.
Connecticut might reasonably consider herself as one of the smaller
States, and her vote was steadily given for an equality of suffrage in
both branches of the national legislature, down to the time of the
final division upon the Senate. The States of New Jersey and Delaware
formed the other members of the minority, upon this general question.
On the one side, therefore, of what would have been, but for the great
inequalities among the States, almost a purely speculative question,
we find a strong determination, the result of an apparent necessity,
to establish a government in which the democratic majority of the
whole people of the United States should be the ruling power; and in
which, so far as State influence was to be felt at all, it should be
felt only in proportion to the relative numbers of the people
composing each separate community. It was considered by those who
embraced this side of the question, that, when the great States were
asked to perpetuate the system of federal equality on which the
Confederation had been founded, they were asked to submit to mere
injustice, on account of an imaginary danger to their smaller
confederates. They held it to be manifestly wrong, that a State
fourteen times as large as Delaware should have only the same number
of votes in the national legislature. Whether the States were now met
as parties to a subsisting confederacy, under which they might be
regarded in the same light as the individuals composing the social
compact; or whether they were to be looked upon as so many aggregates
of individuals for whose personal rights and interests provision was
to be made, as if they composed a nation already united, it was
believed by the majority that no safe and durable government could be
formed, if the democratic element were to be excluded. Pure
democracies had undoubtedly been attended with inconveniences. But how
could peace and real freedom be preserved, under the republican form,
if half a million of people dwelling in one political division of the
country possessed only the same suffrage in the enactment of laws as
sixty thousand people dwelling in another division? Leave out of view
the theory which taught that the States alone, regarded as members of
an existing compact, must be considered as the parties to the new
system, as they had been to the old, and it would be found that the
political equality of the free citizens of the United States could be
made a source of that energy and strength so much needed and as yet so
little known. With it was connected the idea and the practicability of
legislation that would reach and control individuals. Without it,
there could be only a system of coercion of the States, whose
opposition would be invited, rather than repressed, upon all occasions
of importance. Abandon the necessary principle of governing by a
democratic majority, said George Mason, and if the government
proceeds to taxation, the States will oppose its powers.[70]
On the other hand, the minority, insisting on a rigid construction of
their powers, and planting themselves upon the nature of the compact
already formed between the States, contended that these separate and
sovereign communities had distinct governments already vested with the
whole political power of their respective populations, and therefore
that they could not, consistently with the truth of their situation,
act as if the whole or any considerable part of that power could be
transferred by the people themselves to another government. They said,
that whatever power was to be conferred on a central or general
government must be granted by the States, as political corporations,
and that therefore the principle of the Union could not be changed,
whatever addition it might be expedient to make to its authority. They
said, that, even if this theory were not strictly true, the smaller
States could not safely unite with the larger upon any other; and
especially that they could not surrender their liberties to the
keeping of a majority of the people inhabiting all the States, for
such a power would inevitably destroy the State constitutions. They
were willing, they said, to enlarge the powers of the federal
government; willing to provide for it the means of compelling
obedience to its laws; willing to hazard much for the general welfare.
But they could not consent to place the very existence of their local
governments, with all their capacity to protect the distinct
interests of the people, and all their peculiar fitness for the
administration of local concerns, at the mercy of great communities,
whose policy might overshadow and whose power might destroy them.
To the claim of political equality as between a citizen of the largest
and a citizen of the smallest State in the Union, they opposed the
doctrine, that in his own State every citizen is equal with every
other, and holds such rights and liberties, and so much political
power, as the State may see fit to bestow upon him; but that, when
separate States enter into political relations with each other for
their common benefit, it is among the States themselves that the
equality must prevail, because States can only be parties to a compact
upon a footing of natural equality, just as individuals are supposed
to enter society with equal natural rights. This doctrine, they said,
was especially necessary to be applied between States of very unequal
magnitudes. If applied, it would render unnecessary the division of
the legislative body into two chambers; would dispense with any but a
supreme judicial tribunal; and would admit of a ratification by the
States in Congress, without raising the hazardous and doubtful
question of a direct resort to the people, whose power to act
independently of their State governments was by some strenuously
denied.
These, in substance, were the principles now brought into direct
collision, urged under a great variety of forms, and recurring upon
the successive details of the Constitution, as its formation
proceeded, and pressed with equal earnestness and equally firm
convictions of duty on both sides. I confess that it does not seem to
me important, if it be practicable, to decide which party was
theoretically correct. A great deal of the reasoning on both sides was
speculative, and it is not easy to deny some of the chief propositions
which were maintained on the one side and the other. We are too apt,
perhaps, to judge of the real soundness of the opinions held by
opposite parties to the first compromise of the Constitution, by the
subsequent history and success of the government, and by the views and
feelings which we entertain of that history and that success. Whereas,
in truth, if we place ourselves at the point where the framers of the
Constitution stood at the time we are examining, we shall find that,
with the exception of the influence due to one or two governing facts
of previous history, it was theoretically as correct to contend for a
purely federal as for a purely national government. Almost everything
depends upon the object towards which they were to reason; and
therefore the premises were in a considerable degree open to an
arbitrary choice. If the object was to establish a government, against
the exercise of whose legitimate powers State legislation could not
possibly be exerted, some higher authority than that of the State
governments must be resorted to; and the reasoning which tended to
prove the existence of that authority and the practicability of
invoking it, and the danger of any other kind of government, comes
logically and consistently in support of the great purpose to be
attained. If, however, from an honest fear for the safety of local
interests, the purpose was to have a government that would not
seriously diminish the powers of the States, but would leave them with
always unimpaired sovereignties, capable of resisting the measures of
the central power, then the States were certainly competent and
sufficient to the formation of such a system, and the reasoning which
placed them in the light of parties to a social compact was
theoretically true. On the one side, it was believed that a government
formed by the States upon the principle of federal equality would be
destructive of the powers of the general government, whatever those
powers might be. On the other side, it was considered that the
principle of governing by a democratic majority of the people of all
the States would make those powers too formidable for the safety of
the State constitutions. According to the force we may assign to the
one or the other tendency, the reasoning on either side will appear to
us to be almost equally correct.
But there were, as I have said, one or two facts of previous history,
which gave the advocates of a national government a great advantage
over their opponents, and went far towards settling the real merits of
the two opposite systems. A federal system had been tried, and had
broken down in complete prostration of all the appropriate energies
and functions of government. The advocates of the opposite system,
therefore, could point to all the failures and all the defects of the
Confederation, in proof of the reasoning which they employed. In
addition to this, they could adduce the same general tendency in all
former confederacies of the same nature. But no experiment had been
made by the people of the American States, of a government founded
expressly on the national character and relations of their
inhabitants; and if the merits of such a government were now only to
be maintained by theoretical reasoning, on the other hand it had not
suffered the injury of acknowledged defeat.
The difficulty in the way of its adoption was its supposed tendency to
absorb, and perhaps to annihilate, the sovereignties of the States.
The advocates of the Virginia plan were called upon to show how the
general sovereignty and jurisdiction which they proposed to give to
their system could consist with a considerable, though subordinate,
jurisdiction in the States. One of its moderate and candid
opponents[71] declared that, if this could be shown, the objections to
it ought to be surrendered; but if not, he thought that those
objections must have their full force. But, from the very nature of
the case, that which had not been demonstrated by experience could
rest only upon opinion; and while the Virginia system made no other
provision for State defence against encroachments of the general
government than such as might be found in the election by the State
legislatures of the national Senate, the apprehensions of the smaller
States could not be satisfied, however admirable the theory, and
however able might be the reasoning by which it was supported.
Let the reader, then, as he pursues the history of this conflict
between the opposing interests of the two classes of States, and
observes how strenuously the different theories were maintained, until
victory became impossible on either side, note the danger of adhering
too firmly to mere theoretical principles, in matters of government.
He will see the impressive spectacle of States assembled for the
formation of some system capable of answering the exigencies of their
situation; he will see how rapidly a difference of local interests
developed the most opposite theories, and how profoundly those
theories were discussed; and he will see this conflict carried on for
days, and even for weeks, with all the sincerity that interest lends
to conviction, and all the tenacity that conviction can produce, until
at last the whole discussion leads to the probable failure of the
purpose for which the assembly had been instituted. He will then see
an amalgamation of the two systems, which in their integrity were
irreconcilable, and will witness the first introduction of that mode
of adjusting opposite interests and conflicting theories of government
which lies at the basis of the Constitution of the United States, and
which alone can furnish a safe foundation on which to unite the
destinies and wants of separate communities possessed of distinct
political organizations and rights.
The Convention had received the report of the committee of the whole
on the 19th of June. From that day until the 5th of July the struggle
was continued, commencing with the proposition which affirmed the
division of the legislative department of the government into two
branches. Although such an arrangement did not necessarily involve the
principle of national and popular representation, it was opposed as
unnecessary by those who desired to retain the system of
representation by States, and who therefore intended to preserve the
existing organization of the Congress. Still, the needful harmony and
completeness of the scheme, according to the genius of the
Anglo-American liberty, required this division of the legislature.
Doubtless a single council or chamber can promulgate decrees and enact
laws; but it had never been the habit of the people of America, as it
never had been the habit of their ancestors for at least a period of
somewhat more than five centuries, to regard a single chamber as
favorable to liberty, or to wise legislation.[72] The separation into
two chambers of the lords spiritual and temporal, and the commons, in
the English constitution, does not seem to have originated in a
difference of personal rank, so much as in their position as separate
estates of the realm. All the orders might have voted promiscuously in
one house, and just as effectually signified the assent or dissent of
Parliament to any measure proposed.[73] But the practice of making the
assent of Parliament to consist in the concurrent and separate action
of the two estates, though difficult to be traced to its origin in any
distinct purpose or cause, became confirmed by the growing importance
of the commons, by their jealousy and vigilance, and by the
controlling position which they finally assumed. As Parliament
gradually proceeded to its present constitution, and the separate
rights and privileges of the two houses became established, it was
found that the practice of discussing a measure in two assemblies,
composed of different persons, holding their seats by a different
tenure and representing different orders of the state, was in the
highest degree conducive to the security of the subject, and to sound
legislation.[74]
So fully was the conviction of the practical convenience and utility
of two chambers established in the Anglican mind, that, when
representative government came to be established in the British North
American Colonies, although the original reason for the division
ceased to be applicable, it was retained for its incidental
advantages. In none of these Colonies was there any difference of
social condition, or of political privilege or power, recognized in
the system of representation; and as there were, therefore, no
separate estates or orders among the people, requiring to be protected
against each other's encroachments, or holding different relations to
the crown, we cannot attribute the adherence to the system of two
chambers, on the part of those who solicited and received the
privilege of establishing these colonial governments, to anything but
their belief in its practical advantages for the purposes of
legislation. Still less can we suppose, that after the Revolution, and
when there no longer existed any such motive as might have influenced
the crown in modelling the colonial after the imperial institutions,
to a certain extent, the people of these States should have
perpetuated in their constitutions the principle of a division of the
legislature into two chambers, for any other purpose than to secure
the practical benefits which they and their ancestors had always found
to flow from it.
Only three exceptions to this practice existed in America, at the time
of the formation of the Constitution. They were the legislatures of
the States of Pennsylvania and Georgia, and the Congress of the
Confederation.
But the Congress being in fact only an assembly of deputies from
confederated States, the means scarcely existed for the application of
the principle so familiar in the legislatures of most of the States
themselves. As a new government was now to be formed, whose
theoretical and actual powers were to be essentially different, an
opportunity was afforded for the ancient and favorite construction of
the legislative department. The proposal was resisted, not because it
was doubted that, in a government of direct legislative authority, in
which the people are themselves to be represented, the system of two
chambers is practically the best, but because those who opposed its
introduction denied the propriety of attempting to establish a
government of that kind. The States of New York, New Jersey, and
Delaware, therefore, recorded their votes against such a division of
the legislature, and the vote of Maryland was divided upon the
question.[75]
The reader will observe, however, that, in its present aspect, there
was a chasm in the Virginia plan, which to some extent justifies the
opposition of the minority to the system of two legislative chambers.
According to that plan, the people of the States were to be
represented in both chambers in proportion to their numbers. But as
there were no distinct orders among the people to furnish a different
basis for the two houses, the system must either be a mere duplicate
representation of the whole people, as it is in the State
constitutions generally, or some artificial basis must be provided
for one house, to distinguish it from the other, and to furnish a
check as between the two. In a republican government, and in a state
of society where property is not entailed and distinctions of personal
rank cannot exist, such a basis is not easily found; and if found, is
not likely to be stable and effectual. The happy expedient of
selecting the States as the basis of representation in the Senate,
which had not yet been agreed upon, and which was resorted to as an
adjustment of a serious conflict between two opposite principles of
government, has furnished a really different foundation for the two
branches, as distinct as the separate representation of the different
orders in the British constitution. It has thus secured the incidental
advantages of two chambers, without resorting to those fluctuating or
arbitrary distinctions among the people, which can alone afford, in
such a country as ours, even an ostensible difference of origin for
legislative bodies.
The same struggle which had been maintained upon this question was
continued through all the votes taken upon the mode of electing the
members of the two branches, and upon their tenure of office. It is
not necessary here to rehearse the details of these proceedings; the
result was, that the members of the first branch of the legislature
were to be chosen by the people of the States for a period of two
years, and to be twenty-five years of age, while the members of the
second or senatorial branch were to be chosen by the State
legislatures for a period of six years, and to be thirty years of
age. The States of Pennsylvania and Virginia voted against the
election of senators by the legislatures of the States, because it was
still uncertain whether an equality or a ratio of representation would
finally prevail in that branch, and the election by the legislatures
was considered to have a tendency to the adoption of an equality.[76]
At length, the sixth resolution, which defined the powers of Congress,
and the seventh and eighth, which involved the fundamental point of
the suffrage in the two branches, were reached.[77] The subject of the
powers of Congress was postponed, and the question was stated on the
rule of suffrage for the first branch, which the resolution declared
ought to be according to an equitable ratio. In the great debate which
ensued, Madison, Hamilton, Gorham, Reed, and Williamson combated the
objections of the smaller States, while Luther Martin, with his
accustomed warmth, resisted the introduction of the new principle. The
discussion involved on both sides a repetition of the arguments
previously employed; but some of the views presented are of great
importance, especially those taken by Madison and Hamilton, of the
situation in which the smaller States must be placed, if a
constitution should not be formed and adopted containing a just
distribution of political power among the whole people of the country,
creating thereby a government of sufficient energy to protect each and
all of the States against foreign powers, against the influence of
the larger members of the confederacy, and against the dangers to be
apprehended from their own governments.
Let each State, said Mr. Madison, depend on itself for its security,
in a position of independence of the Union, and let apprehensions
arise of dangers from distant powers, or from neighboring States, and
from their present languishing condition, all the States, large as
well as small, would be transformed into vigorous and high-toned
governments, with an energy fatal to liberty and peace. The weakness
and jealousy of the smaller States would quickly introduce some
regular military force, against sudden danger from their powerful
neighbors; the example would be followed, would soon become universal,
and the means of defence against external danger would become the
instruments of tyranny at home. These consequences were to be
apprehended, whether the States should run into a total separation
from each other, or into partial confederacies. Either event would be
truly deplorable, and those who might be accessory to either could
never be forgiven by their country, or by themselves.[78]
To these consequences of a dissolution of the Union, Hamilton added
another, equally serious. Alliances, he declared, must be formed with
different rival and hostile nations of Europe, who would seek to make
us parties to their own quarrels. The representatives of foreign
nations having American dominions betrayed the utmost anxiety about
the result of that meeting of the States. It had been said that
respectability in the eyes of Europe was not the object at which we
were to aim; that the proper design of republican government was
domestic tranquillity and happiness. This was an ideal distinction. No
government could give us tranquillity and happiness at home, which did
not possess sufficient stability and strength to make us respectable
abroad. This was the critical moment for forming such a government. We
should run every risk in trusting to future amendments. As yet, we
retain the habits of union. We are weak, and sensible of our weakness.
Henceforward the motives would become feeble and the difficulties
greater. It was a miracle that they were here, exercising their
tranquil and free deliberations on the subject. It would be madness to
trust to future miracles.[79]
But these warnings were of no avail against the settled determination
of those who saw greater dangers in the establishment of a government
which was in their view to approximate the condition of the States to
that of counties in a single State. The principle of a proportionate
representation of the populations of the State, was just and
necessary; but it was now leading to the extreme of an entire
separation, because it was carried to the extreme of a full
application to every part of the government. In like manner, there was
an equally urgent necessity for some provision which should receive
the States in their political capacity, and on a footing of equality,
as constituent parts of the system. But this principle was now forcing
the majority into the alternative of a partial confederacy, or of none
at all, because it was insisted that the government must be
exclusively founded on it. Neither party was ready to adopt the
suggestion that the two ideas, instead of being opposed, ought to be
combined, so that in one branch the people should be represented, and
in the other the States.[80] The consequence was that the
proportionate rule of suffrage for the first branch was established by
a majority of one State only;[81] and the Convention passed on, with a
fixed and formidable minority wholly dissatisfied, to consider what
rule should be applied to the Senate.
The objects of a Senate were readily apprehended. They were, in the
first place, that there might be a second chamber, with a concurrent
authority in the enactment of laws; secondly, that a greater degree of
stability and wisdom might reside in its deliberations, than would be
likely to be found in the other branch of the legislative department;
and, thirdly, that there might be some diversity of interest between
the two bodies. These objects were to be attained by providing for the
Senate a distinct and separate basis of its own. If such a basis is
found among the individuals composing a political society, it must
consist of the distinctions among them either in respect to social
rank or in respect to property. With regard to the first, the absence
of all distinctions of rank rendered it impossible to assimilate the
Senate of the United States to the aristocratic bodies which were
found in other governments possessed of two legislative chambers.
Property, as held by individuals, might have been assumed as the basis
of a distinct representation, if the laws and customs of the different
States had generally admitted of its possession in large masses
through successive generations. But they did not admit of it. The
general distribution and diffusion of property was the rule; its
lineal transmission from the father to the eldest son was the
exception. Had the Senate been founded upon property, it must have
been upon the ratio of wealth as between the different States, in the
same manner in which the senatorial representation of counties was
arranged under the first constitution of Massachusetts.[82] It was
very soon settled and conceded, that the States, as political
societies, must be preserved; and if they were to be represented as
corporations, or as so many separate aggregates of individuals, they
must be received into the representation on an equal footing, or
according to their relative weight. An inquiry into their relative
wealth must have involved the question, as to five of them at least,
whether their slaves were to be counted as part of that wealth. No
satisfactory decision of this naked question could have been had; and
it is to be considered among the most fortunate of the circumstances
attending the formation of the Constitution, that this question was
not solved, with a view of founding the Senate upon the relative
wealth of the States.
Two courses only remained. The basis of representation in the Senate
must either be found in the numbers of people inhabiting the States,
creating an unequal representation, or the people of each State,
regarded as one, and as equal with the people of every other State,
must be represented by the same number of voices and votes. The former
was the plan insisted on by the friends and advocates of the
"national" system; the latter was the great object on which the
minority now rallied all their strength.
The debate was not long protracted; but it was marked with an energy,
a firmness, and a warmth, on both sides, which reveal the nature of
the peril then hanging over the unformed institutions, whose existence
now blesses the people of America. As the delegations of the States
approached the decision of this critical question, the result of a
separation became apparent, and with it phantoms of coming dissension
and strife, of foreign alliances and adverse combinations, loomed in
the future. Reason and argument became powerless to persuade.
Patriotism, for a moment, lost its sway over men who would at any time
have died for their common country. Not mutterings only, but threats
even were heard of an appeal to some foreign ally, by the smaller
States, if the larger ones should dare to dissolve the confederacy by
insisting on an unjust scheme of government.
Ellsworth, of Connecticut, in behalf of the minority, offered to
accept the proportional representation for the first branch, if the
equality of the States were admitted in the second, thus making the
government partly national and partly federal. It would be vain, he
said, to attempt any other than this middle ground. Massachusetts was
the only Eastern State that would listen to a proposition for
excluding the States, as equal political societies, from an equal
voice in both branches. The others would risk every consequence,
rather than part with so dear a right. An attempt to deprive them of
it was at once cutting the body of America in two.
At this moment, foreseeing the probability of an equal division of the
States represented in the Convention, one of the New Jersey
members[83] proposed that the President should write to the executive
of New Hampshire, to request the attendance of the deputies who had
been chosen to represent that State, and who had not yet taken seats.
Two States only voted for this motion,[84] and the discussion
proceeded. Madison, Wilson, and King, with great earnestness, resisted
the compromise proposed by Ellsworth, and when the vote was finally
taken, five States were found to be in favor of an equal
representation in the Senate, five were opposed to it, and the vote of
Georgia was divided.[85]
Thus was this assembly of great and patriotic men brought finally to
a stand, by the singular urgency with which opposite theories,
springing from local interests and objects, were sought to be pressed
into a constitution of government, that was to be accepted by
communities widely differing in extent, in numbers, and in wealth, and
in all that constitutes political power, and which were at the same
time to remain distinct and separate States. As we look back to the
possibility of a failure to create a constitution, and try to divest
ourselves of the identity which the success of that experiment has
given to our national life, the imagination wanders over a dreary
waste of seventy years, which it can only fill with strange images of
desolation. That the administration of Washington should never have
existed; that Marshall should never have adjudicated, or Jackson
conquered; that the arts, the commerce, the letters of America should
not have taken the place which they hold in the affairs of the world;
that instead of this great Union of prosperous and powerful republics,
made one prosperous and powerful nation, history should have had
nothing to show and nothing to record but border warfare and the
conflicts of worn-out communities, the sport of the old clashing
policies of Europe; that self-government should have become one of the
exploded delusions with which mankind have successively deceived
themselves, and republican institutions have been made only another
name for anarchy and social disorder;--all these things seem at once
inconceivable and yet probable,--at once the fearful conjurings of
fancy, and the inevitable deductions of reason.
We know not what combinations, what efforts, might have followed the
separation of that convention of American statesmen, without having
accomplished the work for which they had been assembled. We do know,
that, if _they_ could not have succeeded in framing and agreeing upon
a system of government capable of commending itself to the free choice
of the people of their respective States, no other body of men in this
country could have done it. We know that the Confederation was
virtually at an end; that its power was exhausted, although it still
held the nominal seat of authority. The Union must therefore have been
dissolved into its component parts, but for the wisdom and
conciliation of those who, in their original earnestness to secure a
perfect theory, had thus encountered an insuperable obstacle and
brought about a great hazard. I have elsewhere said that these men
were capable of the highest of the moral virtues,--that their
magnanimity was as great as their intellectual acuteness and strength.
Let us turn to the proof on which rests their title to this
distinction.
FOOTNOTES:
[64] Rhode Island was never represented in the Convention, and the
delegation of New Hampshire had not yet attended.
[65] In all these statements of the relative rank of the States, I
compare the census of 1790 and that of 1850.
[66] The two great exceptions of course were Hamilton and Jay.
[67] See the candid and moderate letter of Messrs. Yates and Lansing
to the legislature of the State, giving their reasons for not signing
the Constitution. (Elliot, I. 480.)