excepted) supported, although the power to levy duties and the
regulation of commerce were to be added to the existing powers of the
old Congress, yet as these powers were to be exerted against the
States, in the last resort, by force, it would only have been
necessary for a State to place itself in an attitude of resistance, by
a public act, and then the grant of power might have been considered
to be revoked by the very act of resisting its execution.
[69] Three of the delegates of the State, James McHenry, Daniel of St.
Thomas Jenifer, and Daniel Carroll, signed the Constitution.
[70] Yates's Minutes, Elliot, I. 433.
[71] Dr. Johnson of Connecticut.
[72] Mr. Hallam has traced the present constitution of Parliament to
the sanction of a statute in the 15th of Edward II. (1322), which he
says recognizes it as already standing upon a custom of some length of
time. Const. History, I. 5.
[73] Mr. Hallam does not concur in what he says has been a prevailing
opinion, that Parliament was not divided into two houses at the first
admission of the commons. That they did not sit in separate chambers
proves nothing; for one body may have sat at the end of Westminster
Hall, and the other at the opposite end. But he thinks that they were
never intermingled in voting; and, in proof of this, he adduces the
fact that their early grants to the King were separate, and imply
distinct grantors, who did not intermeddle with each others'
proceedings. He further shows, that in the 11th Edward I. the commons
sat in one place and the lords in another; and that in the 8th Edward
II. the commons presented a separate petition or complaint to the
King, and the same thing occurred in 1 Edward III. He infers from the
rolls of Parliament, that the houses were divided as they are at
present in the 8th, 9th and 19th Edward II. (See the very valuable
Chapter VIII., on the English Constitution, in Hallam's Middle Ages,
III. 342.)
[74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853.
[75] Connecticut upon this question voted with the majority.
[76] Madison, Elliot, V. 240.
[77] June 28.
[78] Madison, Elliot, V. 256.
[79] Madison, Elliot, V. 258.
[80] It was made at this stage by Dr. Johnson.
[81] The States opposed to an equality of suffrage in the first branch
were Massachusetts, Pennsylvania, Virginia, North Carolina, South
Carolina, and Georgia, 6; those in favor of it were Connecticut, New
York, New Jersey, and Delaware. The vote of Maryland was divided.
[82] Mr. Baldwin of Georgia suggested this model.
[83] David Brearly.
[84] New York and New Jersey.
[85] The question was put upon Ellsworth's motion to allow the States
an equal representation in the Senate. The vote stood, Connecticut,
New York, New Jersey, Delaware, Maryland, _ay_. 5; Massachusetts,
Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5;
Georgia divided. The person who divided the vote of Georgia, and thus
prevented a decision which must have resulted in a disruption of the
Convention, was Abraham Baldwin. We have no account of the motives
with which he cast this vote, except an obscure suggestion by Luther
Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a
very wise and a very able man. He was not in favor of Ellsworth's
proposition, but he probably saw the consequences of forcing the
minority States to the alternatives of receiving what they regarded as
an unjust and unsafe system, or of quitting the Union. By dividing the
vote of his State he prevented this issue, although he also made it
probable that the Convention must be dissolved without the adoption of
any plan whatever.
CHAPTER VII.
FIRST GRAND COMPROMISES OF THE CONSTITUTION.--POPULATION OF THE STATES
ADOPTED AS THE BASIS OF REPRESENTATION IN THE HOUSE.--RULE FOR
COMPUTING THE SLAVES.--EQUALITY OF REPRESENTATION OF THE STATES
ADOPTED FOR THE SENATE.
As the States were now exactly divided on the question whether there
should be an equality of votes in the second branch of the
legislature, some compromise seemed to be necessary, or the effort to
make a constitution must be abandoned. A conversation as to what was
expedient to be done, resulted in the appointment of a committee of
one member from each State, to devise and report some mode of
adjusting the whole system of representation.[86]
According to the Virginia plan, as it then stood before the
Convention, the right of suffrage in both branches was to be upon some
equitable ratio, in proportion to the whole number of free inhabitants
in each State, to which three fifths of all other persons, except
Indians not paying taxes, were to be added. Nothing had been done, to
fix the ratio of representation; and although the principle of popular
representation had been affirmed by a majority of the Convention as
to the first branch, it had been rejected as to the second by an
equally divided vote of the States. The whole subject, therefore, was
now sent to a committee of compromise, who held it under consideration
for three days.[87]
The same struggle which had been carried on in the Convention was
renewed in the committee; the one side contending for an inequality of
suffrage in both branches, the other for an equality in both. Dr.
Franklin at length gave way, and proposed that the representation in
the first branch should be according to a fixed ratio of the
inhabitants of each State, computed according to the rule already
agreed upon, and that in the second branch each State should have an
equal vote. The members of the larger States reluctantly acquiesced in
this arrangement; the members of the smaller States, with one or two
exceptions, considered their point gained. When the report came to be
made, it was found that the committee had not only agreed upon this as
a compromise, but that they had made a distinction of some importance
between the powers of the two branches, by confining to the first
branch the power of originating all bills for raising or appropriating
money and for fixing the salaries of officers of the government, and
by providing that such bills should not be altered or amended in the
second branch. This was intended for a concession by the smaller
States to the larger.[88] The ratio of representation in the House was
fixed by the committee at one member for every forty thousand
inhabitants, in which three fifths of the slaves were to be computed;
each State not possessing that number of inhabitants to be allowed one
member. The number of senators was not designated.
This arrangement was, upon the whole, reasonable and equitable. It
balanced the equal representation of the States in the Senate against
the popular representation in the House, and it gave to the larger
States an important influence over the appropriations of money and the
levying of taxes. Nor can the admission of the slaves, in some
proportion, into the rule of representation, be justly considered as
an improper concession, in a system in which the separate
organizations of the States were to be retained, and in which the
States were to be represented in proportion to their respective
populations.
The report of the committee had recommended that this plan should be
taken as a whole; but as its several features were distasteful to
different sections of the Convention, and almost all parties were
disappointed in the result arrived at by the committee, the several
parts of the plan became at once separate subjects of discussion. In
the first place, the friends of a pure system of popular
representation in both branches objected to the provision concerning
money and appropriation bills, as being no concession on the part of
the smaller States, and as a useless restriction.[89] It therefore, in
their view, left in force all their objections against allowing each
State an equal voice in the Senate. But it was voted to retain it in
the report,[90] and the equal vote of the States in the second branch
was also retained.[91]
The scale of apportionment of representatives, recommended in the
report of the committee, was also objected to on various grounds. It
was said that a mere representation of persons was not what the
circumstances of the case required;--that property as well as persons
ought to be taken into the account in order to obtain a just index of
the relative rank of the States. It was also urged, that, if the
system of representation were to be settled on a ratio confined to the
population alone, the new States in the West would soon equal, and
probably outnumber, the Atlantic States, and thus the latter would be
in a minority for ever. For these reasons, the subject of apportioning
the representatives was recommitted to five members,[92] who
subsequently proposed a scheme, by which the first House of
Representatives should consist of fifty-six members, distributed among
the States upon an estimate of their present condition,[93] and
authorizing the legislature, as future circumstances might require,
to increase the number of representatives, and to distribute them
among the States upon a compound ratio of their wealth and the numbers
of their inhabitants.[94] The latter part of this proposition was
adopted, but a new and different apportionment, of sixty-five members
for the first meeting of the legislature, was sanctioned by a large
vote of the States, after a second reference to a committee of one
member from each State.[95]
These votes had been taken for the purpose of agreeing upon amendments
to the original report of the compromise committee, which they would
have so modified as to introduce into it, in place of a ratio of forty
thousand inhabitants, including three fifths of the slaves, a fixed
number of representatives for the first meeting of the legislature,
distributed by estimate among the States, and for all subsequent
meetings an apportionment by the legislature itself upon the combined
principles of the wealth and numbers of inhabitants of the several
States. But in order to understand the objections to the latter part
of this proposition, and the modifications that were still to be made
in it, it is necessary for us here to recur to that special interest
which caused a new and most serious difficulty in the subject of
representation, and which now began to be distinctly asserted by those
whose duty it was to provide for it. There is no part of the history
of the Constitution that more requires to be examined with a careful
attention to facts, with an unprejudiced consideration of the purposes
and motives of those who became the agents of its great compromises
and compacts between sovereign States, and with an impartial survey of
the difficulties with which they had to contend.
Twice had the Convention affirmed the propriety of counting the
slaves, if the States were to be represented according to the numbers
of their inhabitants; and on the part of the slaveholding States there
had hitherto been no dissatisfaction manifested with the old
proportion of three fifths, originally proposed under the
Confederation as a rule for including them in the basis of taxable
property. But the idea was now advanced, that numbers of inhabitants
were not a sufficient measure of the wealth of a State, and that, in
adjusting a system of representation between such States as those of
the American Union, regard should be had to their relative wealth,
since those which were to be the most heavily taxed ought to have a
proportionate influence in the government. Hence the plan of combining
numbers and wealth in the rule. This was mainly an expedient to
prevent the balance of power from passing to the Western from the
Atlantic States.[96] It was supposed that the former might in
progress of time have the larger amount of population; but that, as
the latter would at the commencement of the government have the power
in their own hands, they might deal out the right of representation to
new States in such proportions as would be most for their own
interests. Still there were grave objections to this combined rule of
numbers and wealth as applied to the slaveholding States. In the first
place, it was extremely vague; it left the question wholly
undetermined whether the slaves were to be regarded as persons or as
property, and therefore left that question to be settled by the
legislature at every revision of the system. Moreover, although this
rule might enable the Atlantic States to retain the predominating
influence in the government as against the Western interests, it might
also enable the Northern to retain the control as against the Southern
States, after the former had lost and the latter had gained a majority
of population. The proposed conjectural apportionment of members for
the first Congress would give thirty-six members to the States that
held few or no slaves, and twenty-nine to the States that held many.
Mason and Randolph, who represented in a candid manner the objections
which Virginia must entertain to such a scheme, did not deny, that,
according to the present population of the States, the Northern part
had a right to preponderate; but they said that this might not always
be the case; and yet that the power might be retained unjustly, if the
proportion on which future apportionments were to be made by the
legislature were not ascertained by a definite rule, and peremptorily
fixed by the Constitution. Gouverneur Morris, who strenuously
maintained the necessity for guarding the interests of the Atlantic
against those of the Western States, insisted that the combined
principles of numbers and wealth gave a sufficient rule for the
legislature; that it was a rule which they could execute; and that it
would avoid the necessity of a distinct and special admission of the
slaves into the census,--an idea which he was sure the people of
Pennsylvania would reject. Mr. Madison argued, forcibly, that
unfavorable distinctions against the new States that might be formed
in the West would be both unjust and impolitic. He thought that their
future contributions to the treasury had been much underrated; that
the extent and fertility of the Western soil would create a vast
agricultural interest; and that, whether the imposts on the foreign
supplies which they would require were levied at the mouth of the
Mississippi or in the Atlantic ports, their trade would certainly
advance with their population, and would entitle them to a rule which
should assume numbers to be a fair index of wealth.
The arguments against the combined principles of numbers and wealth,
as a mere general direction to the legislature, and against their
joint operation upon the contrasted interests of the Western and the
Atlantic States, appear to have prevailed with some of the more
prominent of the Northern members.[97] Accordingly, when a counter
proposition was brought forward by Williamson,[98]--which contemplated
a return to the principle of numbers alone, and was intended to
provide for a periodical census of the free white inhabitants and of
three fifths of all other persons, and that the representation should
be regulated accordingly,--six States on a division of the question
voted for a census of the free inhabitants, and four States recorded
their votes against it.[99] This result brought the Convention to a
direct vote upon the naked question whether the slaves should be
included as persons, and in the proportion of three fifths, in the
census for the future apportionment of representatives among the
States.
Massachusetts and Pennsylvania now, for the first time, separated
themselves from Virginia. It was perceived that a system of
representation by numbers would draw after it the necessity for an
admission of the slaves into the enumeration, unless it were confined
to the free inhabitants. On the one hand, the delegates of these two
States had to look to the probable encouragement of the slave-trade,
that would follow an admission of the blacks into the representation,
and to the probable refusal of their constituents to sanction such an
admission. On the other hand, they had to encounter the difficulty of
arranging a just rule of popular representation between States which
would have no slaves, or very few, and States which would have great
numbers of persons in that condition, without giving to the latter
class of States some weight in the government proportioned to the
magnitude of their populations. But they would not directly admit the
naked principle that a slave is to be placed in the same category with
a freeman for the purpose of representation, when he has no voice in
the appointment of the representative; and the proposition was
rejected by their votes and those of four other States.[100] Thereupon
the whole substitute of Mr. Williamson, which contemplated numerical
representation in the place of the combined rule of numbers and
wealth, was unanimously rejected.
The report of the committee of compromise still stood, therefore, but
modified into the proposition of a fixed number for the first House of
Representatives, and a rule to be compounded of the numbers and wealth
of the States, to be applied by the legislature in adjusting the
representation in future houses. A difficulty, apparently insuperable,
had defeated the application of the simple and--as it might otherwise
appropriately be called--the natural rule of numerical representation.
The social and political condition of the slave, so totally unlike
that of the freeman, presented a problem hitherto unknown in the
voluntary construction of representative government. It was certainly
true, that, by the law of the community in which he was found, and by
his normal condition, he could have no voice in legislation. It was
equally true, that he was no party to the establishment of any State
constitution; that nobody proposed to make him a party to the
Constitution of the United States, to confer upon him any rights or
privileges under it, or to give to the Union any power to affect or
influence his _status_ in a single particular. It was true also, that
the condition in which he was held was looked upon with strong
disapprobation and dislike by the people of several of the States, and
it was not denied by some of the wisest and best of the Southern
statesmen that it was a political and social evil.
Still, there were more than half a million of these people of the
African race, distributed among five of the States, performing their
labor, constituting their peasantry, and--if the numbers of laborers in
a community form any just index of its wealth and importance--forming
in each of those States a most important element in its relative
magnitude and weight. It should be recollected, that the problem before
the framers of the Constitution was, not how to create a system of
representation for a single community possessing in all its parts the
same social institutions, but how to create a system in which different
communities of mere freemen and other different communities of freemen
and slaves could be represented, in a limited government instituted for
certain special objects, with a proper regard to the respective rights
and interests of those communities, and to the magnitude of the stake
which they would respectively have in the legislation by which all were
to be affected.[101]
It does not appear, from any records of the discussions that have come
down to us, in what way it was supposed the combined rule of numbers
and wealth could be applied. If its application were left to Congress,
in adjusting the system with reference to slaveholding States, the
slaves must be counted as persons or as property; and as the proposed
rule did not determine which, they might be treated as persons in one
census, and as property in the next, and so on interchangeably. The
suggestion of the principle, however, which seemed to be a just one,
and which grew out of the conflicting opinions entertained upon the
question whether numbers of inhabitants are alone a just index of the
wealth of a community, brought into view a very important doctrine,
that had long been familiar to the American people; namely, that the
right of representation ought to be conceded to every community on
which a tax is to be imposed; or, as one of the maxims of the
Revolutionary period expressed it, that "taxation and representation
ought to go together." This doctrine was really applicable to the
case, and capable of furnishing a principle that would alleviate the
difficulty; for if it could be agreed that, in levying taxes upon a
slaveholding State, the wealth that consisted in slaves should be
included, the maxim itself demonstrated the propriety of giving as
large a proportion of representation as the proportion of tax imposed;
and if, in order to ascertain the representative right of the State,
the slaves were to be counted as persons, and, in ascertaining the tax
to be paid, they were to be counted as property, they would not
require to be considered in both capacities under either branch of the
rule. But in order to give the maxim this application, it would be
necessary to concede that the numbers of the slaves and the free
persons furnished a fair index of the wealth of one State, as it was
necessary to admit that the numbers of its free inhabitants furnished
a fair index of the wealth of another State. If the latter were to be
assumed, and the taxation imposed upon a State were regulated by its
numbers of people, upon the idea that such numbers fairly represented
the wealth of the community, it was proper to apply the same principle
to the slaves. If this principle were applied to the slaves when
ascertaining the amount of taxes to be paid, it ought equally to be
applied to them in ascertaining the numbers of representatives to be
allowed to the State; otherwise, the value of the slaves must be
ascertained in some other way, for the purposes of taxation; the value
or wealth residing in other kinds of property must be ascertained in
the same mode, or under the different rule of assuming numbers of
inhabitants as its index; and the slaves must be excluded as persons
from the representation, which they could only enhance by being
treated as taxable property.
These further difficulties will appear, as we follow out the various
steps taken for the purpose of applying the maxim which connects
taxation with representation. The rule now under consideration, as the
means of guiding the legislature in future distributions of the right
of representation, was that they were to regulate it upon a ratio
compounded of the wealth and numbers of inhabitants of the States.
Gouverneur Morris now proposed to add to this, as a proviso, the
correlative proposition, "that direct taxation shall be in proportion
to representation." This was adopted; and it made the proposed rule of
numbers and wealth combined applicable both to taxation and
representation.
But in truth it was as difficult to apply the combined rule of wealth
and numbers to the subject of taxation, as between the States, as it
was to apply it to the right of representation. This was not the first
time in the history of the Union that these two subjects had been
considered, and had been found to be surrounded with embarrassments.
In 1776, when the Articles of Confederation were framed, it became
necessary to determine the proportion in which the quotas of
contribution to the general treasury should be assessed upon the
States. Two obvious rules presented themselves as alternatives; either
to apportion the quotas upon an estimate of the wealth of the States,
or to assume that numbers of inhabitants of every condition presented
a fair index of the pecuniary ability of a State to sustain public
burdens. Here again, however, under either of these plans, the
question would arise as to the kind of property to be regarded in the
basis of the assessment. Should the slaves be treated as part of the
property of a slaveholding State, either by a direct computation, or
by counting them as part of the population, which was to be considered
as the measure of its wealth? Mr. John Adams forcibly maintained that
they ought not to be regarded as subjects of federal taxation, any
more than the free laborers of the Northern States; but that numbers
of inhabitants ought to be taken, indiscriminately, as the true index
of the wealth of each State; and that thus the slave would stand upon
the same footing with the free laborer, both being regarded as the
producers of wealth, and therefore that both should add to the quota
of tax or contribution to be levied upon the State.[102] Mr.
Chase,[103] on the other hand, contended that practically this rule
would tax the Northern States on numbers only, while it would tax the
Southern States on numbers and wealth conjointly, since the slaves
were property as well as persons.
It is probable, however, that the slaveholding States would at that
time have agreed to the adoption of numbers as the basis of
assessment, if the Northern and Eastern States could have consented to
receive the slaves into the enumeration in a smaller ratio than their
whole number. But it was insisted that they should be counted equally
with the free laborers of the other States; and the result of this
attempt to solve a complicated and abstruse question of political
economy by a theoretical rule, determining that a slave, as a producer
of wealth, stands upon a precise equality with a freeman performing
the same species of labor, was, that the Congress of 1776 were driven
to the adoption of land as a measure of wealth, instead of the more
convenient and practicable rule of numbers.[104]
But the Articles of Confederation had not been in operation for two
years, when it was found that the system of obtaining supplies for the
general treasury by assessing quotas upon the States according to an
estimate of their relative wealth, represented by the value of their
lands, was entirely impracticable; that the value of land must
constantly be a source of contention and dissatisfaction between the
States; and that, if the mode of defraying the expenses of the Union
by requisitions were adhered to, some simpler rule must be adopted.
Accordingly, in 1783 the Congress were compelled to return to the
rule of numbers; and it was in the effort to agree upon the ratio in
which the slaves should enter into that rule, that the proportion of
three fifths was fixed upon, as a compromise of different views, in
the amendment then proposed to the Articles of Confederation.[105]
Such had been the previous experience of the Union on the subject of
taxation; and now, in 1787, when an effort was to be made to establish
a government upon a popular representation of the States which had
found it so difficult to agree upon a just and practicable rule for
determining their proportions of the public burdens, the whole subject
became still further complicated with the difficulties attending the
adjustment of this new right of proportional representation. The maxim
which would regulate it by the same ratio that is applied to the
distribution of taxes, contained within itself a just principle; but
it went no farther than to assert a principle of justice, and it left
the subject of the rule itself surrounded by the same difficulties as
before. The Southern States complained that their slaves, if counted
as property for the purposes of taxation, were to be so counted upon a
ratio left wholly to the discretion of Congress; and if counted as
numbers, for the same purpose, that they ought not to be reckoned in
their entire number. They professed their readiness to have
representation and taxation regulated by the same rule, but they
insisted on the security of a definite rule, to be established in the
Constitution itself; and this security, they said, must embrace an
admission of the slaves into the basis of representation, if they were
to be included in the basis of direct taxation.[106] Accordingly,
before the rule as to taxation had been determined, Randolph submitted
a distinct proposition, which contemplated a census of the white
inhabitants and of three fifths of all other persons, with a
peremptory direction to Congress to arrange the representation
accordingly.
The Northern States, on the other hand, resisted the direct
introduction of the slaves into the representation, as persons; and it
was plain that, if they were to be treated as property, and the
representation was to be regulated by a rule of wealth, their value as
property must be compared with that of other species of personalty
held in the same and in other States, and some principles for
computing it must be ascertained. Upon such economical questions as
these, the agreement of different minds, under the influence of
different interests, was absolutely impossible.
Thus the knot of these complicated difficulties could only be cut by
the sword of compromise. In whatever direction a theoretical rule was
applied,--whatever view was taken of the slave, as a person or as an
article of property; as a productive laborer equally or less valuable
to the State when compared with the freeman,--whatever principles
were maintained upon the question whether numbers constitute a proper
measure of the wealth of a community, and one that will work out the
same result in communities where slavery exists, as well as where it
is absent,--absolute truth, or what the whole country would receive as
such, was unattainable. But an adjustment of the problem, founded on
mutual conciliation and a desire to be just, was not impossible.
The two objects to be accomplished were to avoid the offence that
might be given to the Northern States by making the slaves in direct
terms an ingredient in the rule of representation, and, on the other
hand, to concede to the Southern States the right to have their
representation enhanced by the same enumeration of their slaves that
might be adopted for the purpose of apportioning direct taxation.
These objects were effected by an arrangement proposed by Wilson. It
consisted, first, in affirming the maxim that representation ought to
be proportioned to direct taxation; and then, by directing a
periodical census of the free inhabitants, and three fifths of all
other persons, to be taken by the authority of the United States, and
that the direct taxation should be apportioned among the States
according to this census of persons. The principle was thus
established, that, for the purpose of direct taxation, the number of
inhabitants in each State should be assumed as the measure of its
relative wealth; and that its right of representation should be
regulated by the same measure; and as the slaves were to be admitted
into the rule for taxation in the proportion of three fifths of their
number only,--apparently upon the supposition that the labor of a
slave is less valuable to the State than the labor of a freeman,--so
they were in the same proportion only to enhance the representation.
This expedient was adopted by the votes of a large majority of the
States;[107] but since it had been moved as an amendment to the
proposition previously accepted, which affirmed that the
representation ought to be regulated by the combined rule of numbers
and wealth, it appeared, when brought into that connection, to rest
the representation of the slaveholding States in respect to the
slaves, in part at least, upon the idea of property. To avoid all
discrepancy in the application of the rule to the two subjects of
representation and taxation, Governor Randolph proposed to strike the
word "wealth" from the resolution; and this, having been done by a
vote nearly unanimous,[108] left the enumeration of the slaves for
both purposes an enumeration of persons, in less than their whole
numbers; placing them in the rule for taxation, not as property and
subjects of taxation, but as constituting part of an assumed measure
of the wealth of a State, just as the free inhabitants constituted
another part of the same measure, and placing them in the same ratio
and in the same capacity in the rule for representation.[109]
The basis of the House of Representatives having been thus agreed to,
the remaining part of the report, which involved the basis of the
Senate, was then taken up for consideration. Wilson, King, Madison,
and Randolph still opposed the equality of votes in the Senate, upon
the ground that the government was to act upon the people and not upon
the States, and therefore the people, not the States, should be
represented in every branch of it. But the whole plan of
representation embraced in the amended report, including the equality
of votes in the Senate, was adopted, by a bare majority, however, of
the States present.[110]
When this result was announced, Governor Randolph complained of its
embarrassing effect on that part of the plan of a constitution which
concerned the powers to be vested in the general government; all of
which, he said, were predicated upon the idea of a proportionate
representation of the States in both branches of the legislature. He
desired an opportunity to modify the plan, by providing for certain
cases to which the equality of votes should be confined; and in order
to enable both parties to consult informally upon some expedient that
would bring about a unanimity, he proposed an adjournment. On the
following morning, we are told by Mr. Madison, the members opposed to
an equality of votes in the Senate became convinced of the impolicy of
risking an agreement of the States upon any plan of government by an
inflexible opposition to this feature of the scheme proposed, and it
was tacitly allowed to stand.[111]
Great praise is due to the moderation of those who made this
concession to the fears and jealousies of the smaller States. That it
was felt by them to be a great concession, no one can doubt, who
considers that the chief cause which had brought about this convention
of the States was the inefficiency of the "federal" principle on which
the former Union had been established. Looking back to all that had
happened since the Confederation was formed,--to the repeated failures
of the States to comply with the constitutional demands of the
Congress, and to the entire impracticability of a system that had no
true legislative basis, and could therefore exert no true legislative
power,--we ought not to be surprised that the retention of the
principle of an equal State representation in any part of the new
government should have been resisted so strenuously and so long.
That the final concession of this point was also a wise and fortunate
determination, there can be no doubt. Those who made it probably did
not foresee all its advantages, or comprehend all its manifold
relations. They looked to it, in the first instance, as the means of
securing the acceptance of the Constitution by all the States, and
thus of preventing the evils of a partial confederacy. They probably
did not at once anticipate the benefits to be derived from giving to a
majority of the States a check upon the legislative power of a
majority of the whole people of the United States. Complicated as this
check is, it both recognizes and preserves the residuary sovereignty
of the States; it enables them to hold the general government within
its constitutional sphere of action; and it is in fact the only
expedient that could have been successfully adopted, to preserve the
State governments, and to avoid the otherwise inevitable alternative
of conferring on the general government plenary legislative power upon
all subjects. It is a part of the Constitution which it is vain to try
by any standard of theory; for it was the result of a mere compromise
of opposite theories and conflicting interests. Its best eulogium is
to be found in its practical working, and in what it did to produce
the acceptance of a constitution believed, at the time of its
adoption, to have given an undue share of influence and power to the
larger members of the confederacy.[112]
NOTE ON THE POPULATION OF THE SLAVEHOLDING AND NON-SLAVEHOLDING
STATES.
Although, at the time of the formation of the Constitution,
slavery had been expressly abolished in two of the States
only (Massachusetts and New Hampshire), the framers of that
instrument practically treated all but the five Southern
States as if the institution had been already abolished
within their limits, and counted all the colored persons
therein, whether bond or free, as part of the free
population; assuming that the eight Northern and Middle
States would be free States, and that the five Southern
States would continue to be slave States. This appears from
the whole tenor of the debates, in which the line is
constantly drawn, as between slaveholding and
non-slaveholding States, so as to throw eight States upon the
Northern and five upon the Southern side. I have found also,
in a newspaper of that period (New York Daily Advertiser,
February 5, 1788), the following
"ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED IN
THE FEDERAL CONVENTION, ACCORDING TO THE MOST ACCURATE
ACCOUNTS THEY COULD OBTAIN."
New Hampshire, 102,000
Massachusetts, 360,000
Rhode Island, 58,000
Connecticut, 202,000
New York, 238,000
New Jersey, 138,000
Pennsylvania, 360,000
Delaware, 37,000
---------1,495,000
Maryland, including three fifths of 80,000 negroes, 218,000
Virginia, " " 280,000 " 420,000
North Carolina, " " 60,000 " 200,000
South Carolina, " " 80,000 " 150,000
Georgia, " " 20,000 " 90,000
---------1,078,000
The authenticity of this table is established by referring to
a speech made by General Pinckney in the legislature of South
Carolina, in which he introduced and quoted it at length.
(Elliot's Debates, IV. 283.)
From this it appears that the estimated population of the
eight Northern and Middle States, adopted in the Convention,
was 1,495,000; that of the five Southern States (including
three fifths of an estimated number of negroes) was
1,078,000. Comparing this estimate with the results of the
first census, it will be seen that the _total_ population of
the eight Northern and Middle States exceeds the _federal_
population of the five Southern States, in the census of
1790, in about the same ratio as the former exceeds the
latter in the estimate employed by the Convention. Thus in
1790 the _total_ population of the eight Northern and Middle
States, including all slaves, was 1,845,595; the _federal_
population of the five Southern States, including three
fifths of the slaves, was 1,540,048;--excess 305,547. In the
estimate of 1787, the population allotted to the eight
Northern and Middle States was 1,495,000; that allotted to
the five Southern States, counting only three fifths of the
estimated number of slaves, was 1,078,000;--excess in favor
of the eight States, 417,000. This calculation shows,
therefore, that, in estimating the population of the
different States for the purpose of adjusting the first
representation in Congress, the Convention applied the rule
of three fifths of the slaves to the five Southern States
only, and that as to the other eight States no discrimination
was made between the different classes of their inhabitants.
Other methods of comparing the estimate of 1787 with the
census of 1790 will lead to the same conclusion.
FOOTNOTES:
[86] The committee consisted of Gerry, Ellsworth, Yates, Patterson,
Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin.
[87] The committee was appointed on the 2d of July, and made their
report on the 5th. The Convention in the interval transacted no
business.
[88] See further as to this exclusive power of the House, _post._
[89] Madison, Butler, Gouverneur Morris, and Wilson.
[90] Five States voted to retain it, three voted against it, and three
were divided. This was treated as an affirmative vote. Elliot, V. 255.
[91] Connecticut, New York, New Jersey, Delaware, Maryland, North
Carolina, _ay_ 6; Pennsylvania, Virginia, South Carolina, _no_,3;
Massachusetts, Georgia, divided. Ibid. 285, 286.
[92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King.
[93] They gave to New Hampshire, 2; Massachusetts, 7; Rhode Island, 1;
Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware,
1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5;
Georgia, 2.
[94] Elliot, V. 287, 288.
[95] This apportionment gave to New Hampshire, 3; Massachusetts, 8;
Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4;
Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North
Carolina, 5; South Carolina, 5; Georgia, 3.
[96] See Mr. Gorham's explanation; Madison, Elliot, V. 288.
[97] Sherman and Gorham.
[98] Of North Carolina.
[99] Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia,
North Carolina, _ay_, 6; Delaware, Maryland, South Carolina, Georgia,
_no_, 4. The votes of South Carolina and Georgia were given in the
negative, because they desired that the blacks should be included in
the census equally with the whites. For the same reason, as we shall
see presently, those States voted against the other branch of the
proposition, which would give but three fifths of the slaves. But upon
what principle, unless it was from general opposition to all numerical
representation, the State of Delaware should have voted with them on
both of these features of the proposed census, is, I confess, to me
inexplicable.
[100] Connecticut, Virginia, North Carolina, Georgia, _ay_, 4;
Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South
Carolina, _no_, 6. South Carolina voted in the negative, for a reason
suggested in the previous note, _ante_, p. 153.
[101] See the note on the population of the slaveholding and
non-slaveholding States, at the end of this chapter.
[102] See Mr. Jefferson's notes of this debate in the Congress of
1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp.
496-498.
[103] Samuel Chase of Maryland.
[104] See _ante_, Vol. I. pp. 210-213.
[105] See Mr. Madison's notes of the debate in the Congress of 1783,
Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783).
_Ante_, Vol. I. p. 213.
[106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and
Governor Randolph. Elliot, V. 294-305.
[107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina,
Georgia, _ay_, 6; New Jersey, Delaware, _no_, 2; Massachusetts, South
Carolina, divided.
[108] The only opposition was from Delaware, the vote of which was
divided.
[109] See the note at the end of this chapter.
[110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr.
Spaight, _no_), _ay_, 5; Pennsylvania, Virginia, South Carolina,
Georgia, _no_, 4; Massachusetts divided (Mr. Gerry, Mr. Strong, _ay_,
Mr. King, Mr. Gorham, _no_). The delegates of New York were all
absent; Messrs. Yates and Lansing left the Convention on the 5th of
July, after the principle of popular representation had been adopted.
Colonel Hamilton was absent on private business. If the two former had
been present, the vote of the State would doubtless have been given in
favor of the report, on account of the basis which it gave to the
Senate.
[111] Elliot, V. 319.
[112] Mr. Madison, who was to the last a strenuous opponent of the
equality of votes in the Senate, candidly and truly stated its merits
in the 62d number of the Federalist, as they had been disclosed to him
by subsequent reflection.
CHAPTER VIII.
POWERS OF LEGISLATION.--CONSTITUTION AND CHOICE OF THE
EXECUTIVE.--CONSTITUTION OF THE JUDICIARY.--ADMISSION OF NEW
STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF
REPUBLICAN CONSTITUTIONS.--OATH TO SUPPORT THE
CONSTITUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR
OFFICE.--SEAT OF GOVERNMENT.
Of the remaining subjects comprehended in the report of the committee
of the whole, it will only be necessary here to make a brief statement
of the action of the Convention, before we arrive at the stage at
which the principles agreed upon were sent to a committee of detail to
be cast into the forms of a Constitution.
Recurring to the sixth resolution in the report of the committee of
the whole, an addition was made to its provisions, by inserting a
power to legislate in all cases for the general interests of the
Union; and for the clause giving the legislature power to negative
certain laws of the States, the principle was substituted of making
the legislative acts and treaties of the United States the supreme law
of the land, and binding upon the judiciaries of the several States.
The constitution of the executive department had been provided for, by
declaring that it should consist of a single person, to be chosen by
the national legislature for a period of seven years, and to be
ineligible a second time; to have power to carry into execution the
national laws, to appoint to offices not otherwise provided for, to be
removable on impeachment, and to be paid for his services by a fixed
stipend out of the national treasury. The mode of constituting this
department did not, as in the case of the legislative, present the
question touching the nature of the government described by the terms
"federal" and "national." It was entirely consistent with either
plan,--with that of a union formed by the States in their political
capacities, or with one formed by the people of the States, or with
one partaking of both characters,--that the executive should be chosen
mediately or immediately by the people, or by the legislatures or
executives of the States, or by the national legislature.
The same contest, therefore, between the friends and opponents of a
national system was not obliged to be renewed upon this department. So
long as the form to be given to the institution was consistent with a
system of republican government,--so long as it provided an elective
magistrate, not appointed by an oligarchy, and holding by a
responsible and defeasible tenure of office,--whether he should be
chosen by the people of the States, or by some of their other public
servants, would not affect the principles on which the legislative
power of the government was to be founded. But this very latitude of
choice, as to the mode of appointment, and the duration of office,
opened the greatest diversity of opinion. In the earlier stages of the
formation of a plan of government of three distinct departments, the
idea of an election of the executive by the people at large was
scarcely entertained at all. It was not supposed to be practicable for
the people of the different States to make an intelligent and wise
choice of the kind of magistrate then contemplated,--a magistrate
whose chief function was to be that of an executive agent of the
legislative will. Regarding the office mainly in this light, without
having yet had occasion to look at it closely as the source of
appointments to other offices and as the depositary of a check on the
legislative power itself, the framers of the plan now under
consideration had proposed to vest the appointment in the legislature,
as the readiest mode of obtaining a suitable incumbent, without the
tumults and risks of a popular election. But the power of appointment
to other offices and the revisionary check on legislation were no
sooner annexed to the executive office, than it was perceived that
some provision must be made for obviating the effects of its
dependence on the legislative branch. An executive chosen by the
legislature must be to a great extent the creature of those from whom
his appointment was derived.
To counteract this manifestly great inconvenience and impropriety, the
incumbent of the executive office was to be ineligible a second time.
This, however, was to encounter one inconvenience by another, since
the more faithfully and successfully the duties of the station might
be discharged, the stronger would be the reasons for continuing the
individual in office. The ineligibility was accordingly stricken out.
Hence it was, that a variety of propositions concerning the length of
the term of office were attempted, as expedients to counteract the
evils of an election by the legislature of a magistrate who was to be
re-eligible; and among them was one which contemplated "good behavior"
as the sole tenure of the office.[113] This proposition was much
considered; it received the votes of four States out of ten;[114] and
it is not at all improbable that it would have received a much larger
support, if the supposed disadvantages of an election by the people
had led a majority of the States finally to retain the mode of an
election by the national legislature.[115] But in consequence of the
impossibility of agreeing upon a proper length of term for an
executive that was to be chosen by the legislature, the majority of
the Convention went back to the plan of making the incumbent
ineligible a second time, which implied that some definite term was to
be adopted. This again compelled them to consider in what other mode
the executive could be appointed, so as to avoid the evil of
subjecting the office to the unrestrained influence of the
legislature, and to remove the restriction upon the eligibility of the
officer for a second term.
In an election of the chief executive magistrate by the people, voting
directly, the right of suffrage would have to be confined to the free
inhabitants of the several States. But even with respect to the free
inhabitants, the right of suffrage was differently regulated in the
different States; and there must either be a uniform and special rule
established as to the qualification of voters for the executive of the
United States, or the rule of suffrage of each State must be adopted
for this as well as other national elections. In the Northern States,
too, the right of suffrage was much more diffused than in the
Southern, and the question must arise, as it had arisen in the
construction of the representative system, whether the States were to
possess an influence in the choice of a chief magistrate for the Union
in proportion to the number of their inhabitants, or only in
proportion to their qualified voters, or their free inhabitants.
The substitution of electors would obviate these difficulties, by
affording the means of determining the precise weight in the election
that should be allotted to each State, without attempting to prescribe
a uniform rule of suffrage in the primary elections, and without being
obliged to settle the discrepancies between the election laws of the
States. They furnished, also, the means of removing the election from
the direct action of the people, by confiding the ultimate selection
to a body of men, to be chosen for the express purpose of exercising a
real choice among the eminent individuals who might be thought fit for
the station. But the mode of choice was complicated with the other
questions of re-eligibility, and especially with that of impeachment.
If appointed by electors, there would be danger of their being
corrupted by the person in office, if he were eligible a second time,
or by a candidate who had not filled the station. Hence there would be
a propriety in making the executive subject to impeachment while in
office. If chosen by the legislature, it seemed to be generally
agreed, that the executive ought not to be eligible a second time; but
whether he ought to be subject to impeachment, and by what tribunal,
was a subject on which there were great differences of opinion.
The consequence of this great diversity of views was, that the plan
embraced in the ninth resolution of the committee of the whole was
retained and sent to the committee of detail.
With respect to the judiciary, several important changes were made in
the plan of the committee of the whole. The prohibition against any
increase of salary of the individuals holding the office was stricken
out, and the restriction was made applicable only to a diminution of
the salary. The cognizance of impeachments of national officers was
taken from their jurisdiction, and the principle was adopted which
extended that jurisdiction to "all cases arising under the national
laws, and to such other questions as may involve the national peace
and harmony." The power to appoint inferior tribunals was confirmed to
the national legislature.
The fourteenth resolution, providing for the admission of new States,
was unanimously agreed to.
The fifteenth resolution, providing for the continuance of Congress
and for the completion of their engagements, was rejected.
The principle of the sixteenth resolution, which provided a guaranty
by the United States of the institutions of the States, was
essentially modified. In the place of a guaranty applicable both to a
republican constitution and the "existing laws" of a State, the
declaration was adopted, "that a republican form of government shall
be guaranteed to each State, and that each State shall be protected
against foreign and domestic violence."[116]
The seventeenth resolution, that provision ought to be made for future
amendments, was adopted without debate.[117]
The eighteenth resolution, requiring the legislative, executive, and
judicial officers of the States to be bound by oath to support the
Articles of Union, was then extended to include the officers of the
national government.
The next subject that occurred in the order of the resolutions was
that of the proposed ratification of the new system by the people of
the States, acting through representative bodies to be expressly
chosen for this purpose, instead of referring it for adoption to the
legislatures of the States.
As this is a subject on which very different theories are maintained,
arising partly from different views of the historical facts, and as
there are very different degrees of importance attached to the mode in
which the framers of the Constitution provided for its establishment,
it will be convenient here to state the position in which they found
themselves at this period in their deliberations, the purposes which
they had in view, and the steps which they took to accomplish their
objects.
They were engaged in preparing a new system of government, and in
providing for its introduction. When they were first called together,
the general purpose of the States may seem to have been confined to a
mode of introducing changes in the fundamental compact of the Union,
such as was provided for by the Articles of Confederation. But the
Convention had found itself obliged, from the sheer necessities of the
country, to go far beyond the Confederation, and to make a total
change in the principle of the government. It became, therefore,
necessary for them to provide a mode of enacting or establishing this
change, which would commend itself to the confidence of the people, by
its conformity with their previous ideas of constitutional action, and
be at the same time consonant with reason and truth.
Again, there was a peculiarity in their situation, which rendered it
quite different from that of the delegates of a people who had
abolished a pre-existing government, and had assembled a
representative body to form a new one. The Confederation still
existed. As a compact between sovereign States, providing for a
special mode in which alterations of its articles were to be made, and
limiting their adoption to the case of unanimous consent, it was still
in force. The States, in their political capacities as sovereign
communities, were still the parties to the compact, and their
legislatures alone were clothed with the authority to change its
provisions. It was necessary, therefore, to encounter and to solve the
question, whether a new government, framed upon a principle unlike
that of the Confederation, and embracing an entirely different
legislative authority, could be established in the mode prescribed by
the existing compact of the States; and if it could not, whether there
existed any power, apart from the State governments, by which it could
be established and be clothed with a paramount authority, resting on a
basis of principle, and not upon force, fiction, or fraud.
In the early formation of the Union that took place before the
Declaration of Independence, questions of the constitutional power of
the Colonies which became members of it could scarcely arise at all,
since those who undertook to act for and to represent the people of
each Colony were proceeding upon revolutionary principles and rights.
But before the Articles of Confederation, which constituted the first
union of the States upon ascertained and settled principles of
government, had been agreed upon, many of the State constitutions were
formed; and when those Articles were entered into, the State
governments represented the sovereignty of distinct political
communities, and were entirely competent to form such a confederacy as
was then established by their joint and unanimous consent. All the
obligations which the Confederation imposed upon its members rested
upon the States in their corporate capacities; and the government of
each of them was competent to assume, for the State, such obligations,
and to enter into such stipulations. In the same way, it was competent
to the State governments to make alterations in the Articles of
Confederation, by unanimous consent, so long as those alterations did
not change the fundamental principle of the Union, which was that of a
system of legislation for the States in their corporate capacities.
But when it was proposed to reverse this principle, and to create a
government, external to the governments of the States, clothed with
authority to exact obedience from the individual inhabitants of the
States, and to act upon them directly, the question might well arise,
whether the State governments were competent to cede such an authority
over their constituents, and whether it could be granted by anybody
but the people themselves. It might, it is true, be said, that their
constitutions made the governments of the States the depositaries of
the sovereignty and political powers of the people inhabiting those
States. But if this was true, in a general sense, for the purpose of
exercising the political powers of the people, it was not true, in any
sense, for the purpose of granting away those powers to other agents.
The latter could only be done by those who had constituted the first
class of agents, and who were able to say that certain portions of the
authority with which they had been clothed should be withdrawn, and be
revested in another class.
Undoubtedly it would have been possible to have given the Constitution
of the United States a theoretical adoption by the people of the
States, by committing its acceptance to the State legislatures,
relying on the acquiescence of the people in their acts. But there
were two objections to this course. The one was, that the legislatures
were believed less likely than the people to favor the establishment
of such a government as that now proposed. The other was, that the
kind of legal fiction by which the presumed assent of the people must
be reached, in this mode, would leave room for doubts and disputes as
to the real basis and authority of the government, which ought, if
possible, to be avoided.
Another difficulty of a kindred nature rendered it equally inexpedient
to rely on the sanction of the State legislatures. The States, in
their corporate capacities, and through the agency of their respective
governments, were parties to a federal system, which they had
stipulated with each other should be changed only by unanimous
consent. The Constitution, which was now in the process of formation,
was a system designed for the acceptance of the people of all the
States, if the assent of all could be obtained; but it was also
designed for the acceptance of a less number than the whole of the
States, in case of a refusal of some of them; and it was at this time
highly probable that at least two of them would not adopt it. Rhode
Island had never been represented in the Convention; and the whole
course of her past history, with reference to enlargements of the
powers of the Union, made it quite improbable that she would ratify
such a plan of government as was now to be presented to her. The State
of New York had, through her delegates, taken part in the proceedings,
until the final decision, which introduced into the government a
system of popular representation; but two of those delegates, entirely
dissatisfied with that decision, had withdrawn from the Convention,
and had gone home to prepare the State for the rejection of the
scheme.[118] The previous conduct of the State had made it not at all
unlikely that their efforts would be successful. Nor were there
wanting other indications of the most serious dissatisfaction, on the
part of men of great influence in some of the other States. Unanimity
had already become hopeless, if not impracticable; and it was
necessary, therefore, to look forward to the event of an adoption of
the system by a less number than the whole of the States, and to make
it practicable for a less number to form the new Union for which it
provided. This could only be done by presenting it for ratification to
the people of each State, who possessed authority to withdraw the
State government from the Confederation, and to enter into new
relations with the people of such other States as might also withdraw
from the old and accept the new system.
There was another and more special reason for resorting to the direct
sanction of the people of the States, which has already been referred
to in general terms, but for which we must look still more closely
into the nature of the system proposed. In that system, the
legislative authority was to reside in the concurrent action of a
majority of the people and a majority of the States. How could the
State government of Delaware, for example, confer upon a majority of
the representatives of the people of all the States, and a majority of
the representatives of all the States, that might adopt the new
Constitution, power to bind the people of Delaware by a legislative
act, to which their own representatives might have refused their
assent? The State government was appointed and established for the
purpose of binding the people of the State by legislative acts of
their own servants and immediate representatives; but not for the
purpose of consenting that legislative power over the people of that
State should be exercised by agents not delegated by themselves. Yet
such a consent was involved in the new system now to be proposed, and
was, in some way--by some safe and competent method--to be obtained. A
legislative power was to be created by the assembling in one branch of
the representatives of the people of all the States, in proportion to
their numbers, and in the other branch by assembling an equal number
of representatives of each State, without regard to its numbers of
people. The authority of law, upon all subjects that might be
committed to this legislative power, was to attend the acts of
concurring majorities in both branches, even against the separate and
adverse will of the minority. It was impossible to rest this
authority upon any other basis than that of the ratification of the
system by the people of each State, to be given by themselves in
primary assemblies, or by delegates expressly chosen in such
assemblies, and appointed to give it, if they should see fit. A system
founded on the consent of the legislatures would be a treaty between
sovereign States; a system founded on the consent of the people would
be a constitution of government, ordained by those who hold and
exercise all political power.[119]
There were not wanting, however, strong advocates of a reference to
the State legislatures; and the votes of three of the States were at
first given for that mode of ratifying the Constitution; but the other
plan was finally adopted with nearly unanimous consent.[120]
Still, the resolution under consideration contained a feature which
wisely provided for the assent of the existing Congress to the changes
that were to be made by the establishment of the new system. It
proposed that the plan of the new Constitution should be first
submitted to Congress for its approbation, and that the legislatures
of the States should then recommend to the people to institute
assemblies to consider and decide on its adoption. These steps were to
be taken, in pursuance of the course marked out when the Convention
was called. The resolution of Congress, which recommended the
Convention, required that the alterations which it might propose
should be "agreed to in Congress and confirmed by the States"; and
such was the tenor of the instructions given to the delegates of most
of the States. This direction would be substantially complied with, if
the legislatures, on receiving and considering the system, should
recommend to the people to appoint representative bodies to consider
and decide on its adoption, and the people should so adopt and ratify
it.[121]
The topics covered by the report of the committee of the whole had
thus been passed upon in the Convention, and the outline of the
Constitution had been framed. There remained only three subjects on
which it would be necessary to act in order to provide for a complete
scheme of government. It was necessary to determine the number of
senators to which each State should be entitled; to ascertain the
qualifications of members of the government; and to determine at what
place the government should be seated.
The number of senators was not agreed upon at the time when the
principle of an equal representation of the States in the Senate was
adopted; and it had not been determined in what method they were to
vote. It was now settled that the Senate should consist of two members
from each branch, and that they should vote _per capita_. To this
arrangement one State only dissented. The vote of Maryland was given
against it, through the influence of Luther Martin, who considered
this method of voting a departure from the idea of the States being
represented in the Senate. But this objection was obviously unsound;
for although, by this method of voting, the influence of a State _may_
be divided, its members have the _power_ to concur, and to make the
vote of the State more effectual than it would be if it had only a
single suffrage.
The subject of the qualifications to be required of the executive, the
judiciary, and the members of both branches of the legislature, went
to the committee of detail in a form which was subsequently modified
in a very important particular. It was at first proposed,[122] that
landed property, as well as citizenship in the United States, should
be embraced in the qualifications. But there were solid objections to
this requirement, founded on the circumstances of the country and the
nature of a republican constitution. So far as the people of the
United States could be said to be divided into classes, the principal
divisions related to the three occupations of agriculture, commerce,
and manufactures of all kinds, including in the latter all who
exercised the mechanic arts. As a general rule, it was supposed at
that time to be true, that the commercial and manufacturing classes
held very little landed property; and that although they were much
less numerous than the agricultural class, yet that they were likely
to increase in a far greater ratio than they had hitherto.
Practically, therefore, to require a qualification of landed property,
would be to give the offices of the general government to the
agricultural interest. These considerations led the Convention, by a
nearly unanimous vote, to reject the proposition for a landed
qualification.[123]
Very serious doubts were also entertained, whether, in constructing a
republican constitution, it was proper to pay so much deference to
distinctions of wealth as would be implied by the adoption of any
property qualification for office. There are two methods in which the
interests of property may be secured, in the organization of a
representative government. It may be required as a qualification,
either of the elector or the elected, that the individual shall
possess a certain amount of property. But it seems scarcely
consistent with the spirit of a republican constitution, that this
should be made a qualification for holding office, although it may be
quite proper to require some degree of property, or its equivalent
evidence of moral fitness, as a qualification for the right of
choosing to office. The solid reason for a distinction is, that, in
order to have a property qualification for office at all efficient, or
even of any perceptible operation, it must be made so large that it
will tend to exclude persons of real talent, or even the highest
capacity for the public service. Whereas, a property qualification may
be applied to the exercise of the elective franchise, by requiring so
small an amount that it will practically exclude but few who possess
the moral requisites for its intelligent and honest use; and even to
this extent the operation of such a rule may be, as it is in some
well-governed communities, greatly relieved, by substituting for the
positive possession of any amount of property, that species of
evidence of moral fitness for the right of voting that is implied by
the capacity to pay a very small portion of the public burdens.[124]
At the present stage, however, of the formation of the Constitution
of the United States, the opinions of a majority of the States were in
favor of a property qualification for office, as well as a requirement
of citizenship; and the committee of detail were instructed
accordingly, with, the dissent of only three of the States.[125] But,
as we shall afterwards find, another view of the subject finally
prevailed.[126]
No definite action was had, at this stage, upon the subject of a seat
of the national government; but it was almost unanimously agreed to be
the general sense of the country, that it ought not to be placed at
the seat of any State government, or in any large commercial city; and
that provision ought to be made by Congress, as speedily as possible,
for the establishment of a national seat and the erection of suitable
public buildings.
Such was the character of the system sent to a committee of detail, to
be put into the form of a constitution.[127] Before it was sent to
them, however, a notice was given by an eminent Southern member, which
looked to the introduction of provisions not yet contemplated or
discussed. According to Mr. Madison's minutes, General Pinckney rose
and reminded the Convention, that, if the committee should fail to
insert some security to the Southern States against an emancipation of
slaves, and taxes on exports, he should be bound by duty to his State
to vote against their report.[128]
The resolutions as adopted by the Convention, together with the
propositions offered by Mr. Charles Pinckney on the 29th of May, and
those offered by Mr. Patterson on the 15th of June, were then referred
to a committee of detail.[129]
FOOTNOTES:
[113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the
person appointed in the place of Patrick Henry, who declined to attend
the Convention.
[114] New Jersey, Pennsylvania, Delaware, Virginia, _ay_, 4;
Massachusetts, Connecticut, Maryland, North Carolina, South Carolina,
Georgia, _no_, 6.
[115] I understand Mr. Madison to have voted for this proposition, and
that his view of it was, that it might be a necessary expedient to
prevent a dangerous union of the legislative and executive
departments. He said that the propriety of the plan of an executive
during good behavior would depend on the practicability of instituting
a tribunal for impeachments, as certain and as adequate in the case of
the executive as in the case of the judges. His remarks, of course,
were predicated upon the idea of a final necessity for retaining the
choice of the executive by the legislature. In a note to his
"Debates," appended to the vote on this question, it is said: "This
vote is not to be considered as any certain index of opinion, as a
number in the affirmative probably had it chiefly in view to alarm
those attached to a dependence of the executive on the legislature,
and thereby to facilitate some final arrangement of a contrary
tendency. The avowed friends of an executive 'during good behavior'
were not more than three or four, nor is it certain they would have
adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed
friends of an executive during good behavior," I understand Mr.
Madison to mean those who would have preferred that tenure, under all
forms and modes of election. I can trace in the debates no evidence
that any other person except Gouverneur Morris was indifferent to the
mode in which the executive should be chosen, provided he held his
place by this tenure. Whether Hamilton held this opinion, and adhered
to it throughout, is a disputed point. In a letter to Timothy
Pickering, written in 1803, he says that his final opinion was against
an executive during good behavior, "on account of the increased danger
to the public tranquillity incident to the election of a magistrate of
this degree of permanency." In proof of this view of the subject, he
remarks: "In the plan of a constitution which I drew up while the
Convention was sitting, and which I communicated to Mr. Madison about
the close of it, perhaps a day or two after, the office of President
has no longer duration than for three years." (Niles's Register,
November 7, 1812.) In this he was probably mistaken. (See Hamilton's
Works, II. 401. Madison, Elliot, V. 584.)
[116] _Ante_, Chap. V.
[117] At this point (July 23) John Langdon and Nicholas Gilman took
their seats as delegates from New Hampshire.
[118] See the letter of Messrs. Yates and Lansing to Governor Clinton,
Elliot, I. 480.
[119] There seems to be a sound distinction between the two, which was
pointed out by Mr. Madison. He said that "he considered the difference
between a system founded on the legislatures only, and one founded on
the people, to be the true difference between a _league_, or treaty,
and a _constitution_. The former, in point of _moral obligation_,
might be as inviolable as the latter. In point of _political
operation_, there were two important distinctions in favor of the
latter. First, a [State] law violating a treaty ratified by a
pre-existing [State] law might be respected by the judges as a law,
though an unwise or perfidious one. A [State] law violating a
constitution established by the people themselves would be considered
by the judges as null and void. Secondly, the doctrine laid down by
the law of nations in the case of treaties was, that a breach of any
one article by any of the parties freed the other parties from their
engagements. In the case of a union of people under one constitution,
the nature of the pact had always been understood to exclude such an
interpretation." Elliot, V. 355, 356.
[120] Connecticut, Delaware, and Maryland voted for an amendment to
the original resolution, which, if adopted, would have submitted the
Constitution to the State legislatures. The resolution to refer it to
assemblies chosen for the purpose by the people, was subsequently
adopted, with the dissent of one State only, Delaware.
[121] For the history of the proceedings relating to the institution
of the national Convention, see _Ante_, Vol. I. Book III. Chap. VI.
[122] By Mason.
[123] Maryland alone voted to retain it.
[124] As in the State of Massachusetts; where the sole money
qualification required of a voter is the payment of an annual poll-tax
of $1.25, or about five shillings _sterling_.
[125] Connecticut, Pennsylvania, and Delaware.
[126] See the title "Qualifications" in the Index.
[127] The committee of detail, appointed July 24, consisted of Messrs.
Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357.
[128] By a security against an emancipation of slaves, General
Pinckney meant some provision for their extradition in cases of escape
into the free States. This is apparent from the history of the
extradition clause; and it is upon the notice thus given by him, and
the action had upon this clause, that the statement often made, which
assumes that the Constitution could not have been established without
some provision on this subject--as well as upon general reasoning from
the circumstances of the case--rests for its proof. See as to the
origin and history of the extradition clause, _post_, p. 450.
[129] The resolutions, as referred, were as follows:--
"1. _Resolved_, That the government of the United States ought to
consist of a supreme legislative, judiciary, and executive.
"2. _Resolved_, That the legislature consist of two branches.
"3. _Resolved_, That the members of the first branch of the
legislature ought to be elected by the people of the several States
for the term of two years; to be paid out of the public treasury; to
receive an adequate compensation for their services; to be of the age
of twenty-five years at least; to be ineligible to, and incapable of
holding, any office under the authority of the United States, (except
those peculiarly belonging to the functions of the first branch,)
during the term of service of the first branch.
"4. _Resolved_, That the members of the second branch of the
legislature of the United States ought to be chosen by the individual
legislatures; to be of the age of thirty years at least; to hold their
offices for six years, one third to go out biennially; to receive a
compensation for the devotion of their time to the public service; to
be ineligible to, and incapable of holding, any office under the
authority of the United States, (except those peculiarly belonging to
the functions of the second branch,) during the term for which they
are elected, and for one year thereafter.
"5. _Resolved_, that each branch ought to possess the right of
originating acts.
"6. _Resolved_, That the national legislature ought to possess the
legislative rights vested in Congress by the Confederation; and,
moreover, to legislate in all cases for the general interests of the
Union, and also in those to which the States are separately
incompetent, or in which the harmony of the United States may be
interrupted by the exercise of individual legislation.
"7. _Resolved_, That the legislative acts of the United States, made
by virtue and in pursuance of the Articles of Union, and all treaties
made and ratified under the authority of the United States, shall be
the supreme law of the respective States, as far as those acts or
treaties shall relate to the said States, or their citizens and
inhabitants; and that the judiciaries of the several States shall be
bound thereby in their decisions, anything in the respective laws of
the individual States to the contrary notwithstanding.
"8. _Resolved_, That, in the original formation of the legislature of
the United States, the first branch thereof shall consist of
sixty-five members; of which number, New Hampshire shall send three;
Massachusetts, eight; Rhode Island, one; Connecticut, five; New York,
six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland,
six; Virginia, ten; North Carolina, five; South Carolina, five;
Georgia, three. But as the present situation of the States may
probably alter in the number of their inhabitants, the legislature of
the United States shall be authorized, from time to time, to apportion
the number of representatives; and in case any of the States shall
hereafter be divided, or enlarged by addition of territory, or any two
or more States united, or any new States created within the limits of
the United States, the legislature of the United States shall possess
authority to regulate the number of representatives, in any of the
foregoing cases, upon the principle of their number of inhabitants,
according to the provisions hereafter mentioned, namely: Provided
always, that representation ought to be proportioned to direct
taxation. And in order to ascertain the alteration in the direct
taxation which may be required from time to time by the changes in the
relative circumstances of the States,--
"9. _Resolved_, That a census be taken within six years from the first
meeting of the legislature of the United States, and once within the
term of every ten years afterwards, of all the inhabitants of the
United States, in the manner and according to the ratio recommended by
Congress in their resolution of the 18th of April, 1783; and that the
legislature of the United States shall proportion the direct taxation
accordingly.
"10. _Resolved_, That all bills for raising or appropriating money,
and for fixing the salaries of the officers of the government of the
United States, shall originate in the first branch of the legislature
of the United States, and shall not be altered or amended by the
second branch; and that no money shall be drawn from the public
treasury, but in pursuance of appropriations to be originated by the
first branch.
"11. _Resolved_, That, in the second branch of the legislature of the
United States, each State shall have an equal vote.
"12. _Resolved_, That a national executive be instituted, to consist
of a single person; to be chosen by the national legislature, for the
term of seven years; to be ineligible a second time; with power to
carry into execution the national laws; to appoint to offices in cases
not otherwise provided for; to be removable on impeachment, and
conviction of malepractice or neglect of duty; to receive a fixed
compensation for the devotion of his time to the public service, to be
paid out of the public treasury.
"13. _Resolved_, That the national executive shall have a right to
negative any legislative act; which shall not be afterwards passed,
unless by two third parts of each branch of the national legislature.
"14. _Resolved_, That a national judiciary be established, to consist
of one supreme tribunal, the judges of which shall be appointed by the
second branch of the national legislature; to hold their offices
during good behavior; to receive punctually, at stated times, a fixed
compensation for their services, in which no diminution shall be made
so as to affect the persons actually in office at the time of such
diminution.
"15. _Resolved_, That the national legislature be empowered to appoint
inferior tribunals.
"16. _Resolved_, That the jurisdiction of the national judiciary shall
extend to cases arising under laws passed by the general legislature;
and to such other questions as involve the national peace and harmony.
"17. _Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory, or
otherwise, with the consent of a number of voices in the national
legislature less than the whole.
"18. _Resolved_, That a republican form of government shall be
guaranteed to each State; and that each State shall be protected
against foreign and domestic violence.
"19. _Resolved_, That provision ought to be made for the amendment of
the Articles of Union, whensoever it shall seem necessary.
"20. _Resolved_, That the legislative, executive, and judiciary
powers, within the several States, and of the national government,
ought to be bound, by oath, to support the Articles of Union.
"21. _Resolved_, That the amendments which shall be offered to the
Confederation by the Convention ought, at a proper time or times,
after the approbation of Congress, to be submitted to an assembly or
assemblies of representatives, recommended by the several
legislatures, to be expressly chosen by the people to consider and
decide thereon.
"22. _Resolved_, That the representation in the second branch of the
legislature of the United States shall consist of two members from
each State, who shall vote _per capita_.
"23. _Resolved_, That it be an instruction to the committee to whom
were referred the proceedings of the Convention for the establishment
of a national government, to receive a clause, or clauses, requiring
certain qualifications of property and citizenship in the United
States, for the executive, the judiciary, and the members of both
branches of the legislature of the United States."
CHAPTER IX.
REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE
LEGISLATURE.--TIME AND PLACE OF ITS MEETING.
Having now reached that stage in the process of framing the
Constitution at which certain principles were confided to a committee
of detail, the reader will now have an opportunity to observe the
farther development and application of those principles, the mode in
which certain chasms in the system were supplied, and the final
arrangements which produced the complete instrument that was submitted
to the people of the United States for their adoption.
Great power was necessarily confided to a committee, to whom was
intrusted the first choice of means and of terms that were to give
practical effect to the principles embraced in the resolutions of the
Convention. There might be a substantial compliance with the
intentions previously indicated by the debates and votes of the
Convention, and at the same time the mode in which those intentions
should be carried out by the committee might require a new
consideration of the subjects involved. Hence it is important to
pursue the growth of the Constitution through the entire proceedings.
The committee of detail presented their report on the 6th of August,
in the shape of a Constitution divided into three-and-twenty Articles.
It is not my purpose to examine this instrument in the precise order
of its various provisions, or to describe all the discussions which
took place upon its minute details. It is more consonant with the
general purpose of this history, to group together the different
features of the Constitution which relate to the structure and powers
of the different departments and to the fundamental purposes of the
new government.[130]
In accordance with the previous decisions of the Convention, the
committee of detail had provided that the legislative power of the
United States should be vested in a Congress, to consist of two
branches, a House of Representatives and a Senate, each of which
should have a negative on the other. But as to the persons by whom the
members of the national legislature were to be appointed, no decision
had been made in the Convention, excepting that the members of the
House were to be chosen by the people of the States, and the members
of the Senate by their legislatures. Nothing had been settled
respecting the qualifications of the electors of representatives; nor
had the qualifications of the members of either branch been
determined.[131] Two great questions, therefore, remained open;
first, with what class of persons was the election of members of the
popular branch of the legislature to be lodged; secondly, what persons
were to be eligible to that and to the other branch. In substance,
these questions resolved themselves into the inquiry, in whom was the
power of governing America to be vested; for it is to be remembered
that, according to a decision of the Convention not yet reversed, the
national executive was to be chosen by the national legislature.
So far as the people of the United States had evinced any distinct
purpose, at the time when this Convention was assembled, it appeared
to be well settled that the new system of government, whatever else it
might be, should be republican in its form and spirit. When the States
had assembled in Convention, it became the result of a necessary
compromise between them, that the appointment of one branch of the
legislature should be vested in the people of the several States. But
who were to be regarded as the people of a State, for this purpose,
was a question of great magnitude, now to be considered.
The situation of the country, in reference to this as well as to many
other important questions, was peculiar. The streams of emigration,
which began to flow into it from Europe at the first settlement of the
different Colonies, had been interrupted only by the war of the
Revolution. On the return of peace, the tide of emigration again began
to set towards the new States, which had risen into independent
existence on the western shores of the Atlantic by a struggle for
freedom that had attracted the attention of the whole civilized world;
and when the Constitution of the United States was about to be framed,
large and various classes of individuals in the different countries of
Europe were eagerly watching the result of the experiment. It appeared
quite certain that great accessions of population would follow the
establishment of free institutions in America, if they should be
framed in a liberal and comprehensive spirit. It became necessary,
therefore, to meet and provide for the presence in the country of
great masses of persons not born upon the soil, who had not
participated in the efforts by which its freedom had been acquired,
and who would bring with them widely differing degrees of intelligence
and of fitness to take part in the administration of a free
government. The place that was to be assigned to these persons in the
political system of the country was a subject of much solicitude to
its best and most thoughtful statesmen.
On the one hand, all were aware that there existed among the native
populations of the States a very strong American feeling, engendered
by the war, and by the circumstances attending its commencement, its
progress, and its results. It was a war begun and prosecuted for the
express purpose of obtaining and securing, for the people who
undertook it, the right of self-government. It necessarily created a
great jealousy of foreign influence, whether exerted by governments or
individuals, and a strong fear that individuals would be made the
agents of governments in the exercise of such influence. The political
situation of the country under the Confederation had increased rather
than diminished these apprehensions. The relations of the States with
each other and with foreign nations, under a system which admitted of
no efficient national legislation binding upon all alike, afforded, or
were believed to afford, means by which the policy of other countries
could operate on our interests with irresistible force.
There was, therefore, among the people of the United States, and among
their statesmen who were intrusted with the formation of the
Constitution, a firmly settled determination, that the institutions
and legislation of the country should be effectually guarded against
foreign control or interference.
On the other hand, it was extremely important that nothing should be
done to prevent the immigration from Europe of any classes of men who
were likely to become useful citizens. The States which had most
encouraged such immigration had advanced most rapidly in population,
in agriculture, and the arts. There were, too, already in the country
many persons of foreign birth, who had thoroughly identified
themselves with its interests and its fate, who had fought in its
battles, or contributed of their means to the cause of its freedom;
and some of these men were at this very period high in the councils of
the nation, and even occupied places of great importance in the
Convention itself.[132] They had been made citizens of the States in
which they resided, by the State power of naturalization; and they
were in every important sense Americans. It was impossible, therefore,
to adopt a rule that would confine the elective franchise, or the
right to be elected to office, to the native citizens of the States.
The States themselves had not done this; and the institutions of the
United States could not rest on a narrower basis than the institutions
of the States.
Another difficulty which attended the adjustment of the right of
suffrage grew out of the widely differing qualifications annexed to
that right under the State constitutions, and the consequent
dissatisfaction that must follow any effort to establish distinct or
special qualifications under the national Constitution. In some of the
States, the right of voting was confined to "freeholders"; in
others,--and by far the greater number,--it was extended beyond the
holders of landed property, and included many other classes of the
adult male population; while in a few, it embraced every male citizen
of full age who was raised at all above the level of the pauper by the
smallest evidence of contribution to the public burdens. The
consequence, therefore, of adopting any separate system of
qualifications for the right of voting under the Constitution of the
United States would have been, that, in some of the States, there
would be persons capable of voting for the highest State officers,
and yet not permitted to vote for any officer of the United States;
and that in the other States persons not admitted to the exercise of
the right under the State constitution might have enjoyed it in
national elections.
This embarrassment, however, did not extend to the qualifications
which it might be thought necessary to establish for the right of
being elected to office under the general government. As the State and
the national governments were to be distinct systems, and the officers
of each were to exercise very different functions, it was both
practicable and expedient for the Constitution of the United States to
define the persons who should be eligible to the offices which it
created.
At the same time, in relation to both of these rights--that of
electing and that of being elected to national offices--it was highly
necessary that the national authority, either by direct provision of
the Constitution, or by a legislative power to be exercised under it,
should determine the period when the rights of citizenship could be
acquired by persons of foreign birth. From the first establishment of
the State governments down to the present period, those governments
had possessed the power of naturalization. Their rules for the
admission of foreigners to the privileges of citizenship were
extremely unlike; and if the power of prescribing the rule were to be
left to them, and the Constitution of the United States were to adopt
the qualifications of voters fixed by the laws of the States, or were
to be silent with respect to the qualifications of its own officers,
the rights both of electing and of being elected to national office
would, in respect to citizenship, be regulated by no uniform
principle. If, therefore, the right of voting for any class of federal
officers were to be in each State the same as that given by the State
laws for the election of any class of State officers, it was quite
essential that the States should surrender to the general government
the power to determine, as to persons of foreign birth, what period of
residence in the country should be required for the rights of
citizenship. It was equally necessary that the national government
should possess this power, if it was intended that citizenship should
be regarded at all in the selection of those who were to fill the
national offices.
The committee of detail, after a review of all these considerations,
presented a scheme that was well adapted to meet the difficulties of
the case. They proposed that the same persons who, by the laws of the
several States, were admitted to vote for members of the most numerous
branch of their own legislatures, should have the right to vote for
the representatives in Congress. The adoption of this principle
avoided the necessity of disfranchising any portion of the people of a
State by a system of qualifications unknown to their laws. As the
States were the best judges of the circumstances and temper of their
own people, it was certainly best to conciliate them to the support of
the new Constitution by this concession. It was possible, indeed, but
not very probable, that they might admit foreigners to the right of
voting without the previous qualification of citizenship. It was
possible, too, that they might establish universal suffrage in its
most unrestricted sense. But against all these evils there existed one
great security; namely, that the mischiefs of an absolutely free
suffrage would be felt most severely by themselves in their domestic
concerns; and against the special danger to be apprehended from the
indiscriminate admission of foreigners to the right of voting, another
feature of the proposed plan gave the national legislature power to
withhold from persons of foreign birth the privileges of general
citizenship, although a State might confer upon them the power of
voting without previous naturalization.
This part of the scheme consisted in the transfer of the power of
naturalization to the general government; a power that was necessarily
made exclusive, by being made a power to establish a _uniform_ rule on
the subject.
These provisions were not only necessary in the actual situation of
the States, but they were also in harmony with the great purpose of
the representative system that had been agreed upon as the basis of
one branch of the legislative power. In that branch the people of each
State were to be represented; but they were to remain the people of a
distinct community, whose modes of exercising the right of
self-government would be peculiar to themselves; and that would
obviously be the most successful representation of such a people in a
national assembly, which most conformed itself to their habits and
customs in the organization of their own legislative bodies.
Accordingly, although very strenuous efforts were made to introduce
into the Constitution of the United States particular theories with
regard to popular suffrage,--some of the members being in favor of one
restriction and some of another,--the rule which referred the right in
each State to its domestic law was sustained by a large majority of
the Convention. But the power that was given, by unanimous consent,
over the subject of naturalization, shows the strong purpose that was
entertained of vesting in the national authority an efficient
practical control over the States in respect to the political rights
to be conceded to persons not natives of the country.[133]
As we have already seen, the committee of detail had been instructed
to report qualifications of property and citizenship for the members
of every department of the government. But they found the subject so
embarrassing, that they contented themselves with providing that the
legislature of the United States should have authority to establish
such uniform qualifications for the members of each house, with regard
to property, as they might deem expedient.[134]
They introduced, however, into their draft of a Constitution, an
express provision that every member of the House of Representatives
should be of the age of twenty-five years at least, should have been a
citizen of the United States for at least three years before his
election, and should be, at the time of his election, a resident in
the State in which he might be chosen.[135]
A property qualification for the members of the House of
Representatives was a thing of far less consequence than the fact of
citizenship. Indeed, there might well be a doubt, whether a
requisition of this kind would not be in some degree inconsistent with
the character that had already been impressed upon the government, by
the compromise which had settled the nature of the representation in
the popular branch. It was to be a representation of the people of the
States; and as soon as it was determined that the right of suffrage in
each State should be just as broad as the legislative authority of the
State might see fit to make it, the basis of the representation became
a democracy, without any restrictions save those which the people of
each State might impose upon it for themselves. If then the
Constitution were to refrain from imposing on the electors a property
qualification, for the very purpose of including all to whom the
States might concede the right of voting within their respective
limits, thus excluding the idea of a special representation of
property, it was certainly not necessary to require the possession of
property by the representatives, or to clothe the national legislature
with power to establish such a qualification. The clause reported by
the committee of detail for this purpose was accordingly left out of
the Constitution.[136]
But with respect to citizenship, as a requisite for the office of a
representative or a senator, very different considerations applied.
With whatever degree of safety the States might be permitted to
determine who should vote for a representative in the national
legislature, it was necessary that the Constitution itself should meet
and decide the grave questions, whether persons of foreign birth
should be eligible at all, and if so, at what period after they had
acquired the general rights of citizens. It seems highly probable,
from the known jealousies and fears that were entertained of foreign
influence, that the eligibility to office would have been strictly
confined to natives, but for a circumstance to which allusion has
already been made. The presence of large numbers of persons of foreign
birth, who had adopted, and been adopted by, some one of the States,
who stood on a footing of equality with the native inhabitants, and
some of whom had served the country of their adoption with great
distinction and unsuspected fidelity, was the insuperable obstacle to
such a provision. The objection arising from the impolicy of
discouraging future immigration had its weight; but it had not the
decisive influence which was conceded to the position of those
foreigners already in the country and already enjoying the rights of
citizenship under the laws and constitutions of the several States.
That men should be perpetually ineligible to office under a
constitution which they had assisted in making, could not be said to
be demanded by the people of America.
The subject, therefore, was found of necessity to resolve itself into
the question, what period of previous citizenship should be required.
The committee of detail proposed three years. Other members desired a
much longer period. Hamilton, on the other hand, supported by Madison,
proposed that no definite time should be established by the
Constitution, and that nothing more should be required than
citizenship and inhabitancy. He thought that the discretionary power
of determining the rule of naturalization would afford the necessary
means of control over the whole subject. But this plan did not meet
the assent of a majority of the States, and, after various periods had
been successively rejected, the term of seven years' citizenship as a
qualification of members of the House of Representatives was finally
established.
But was this qualification to apply to those foreigners who were then
citizens of the States, and who, as such, would have the right to vote
on the acceptance of the Constitution? Were they to be told that,
although they could ratify the Constitution, they could not be
eligible to office under it, until they had enjoyed the privileges of
citizenship for seven years? They had been invited hither by the
liberal provisions of the State institutions; they had been made
citizens by the laws of the State where they resided; the Articles of
Confederation gave them the privileges of citizens in every other
State; and thus the very communities by which this Convention had been
instituted were said to have pledged their public faith to these
persons, that they should stand upon an equality with all other
citizens. It is a proof that their case was thought to be a strong
one, and it is a striking evidence of the importance attached to the
principles involved, that an effort was made to exempt them from the
operation of the rule requiring a citizenship of seven years, and that
it was unsuccessful.[137]
It is impossible now to determine how numerous this body of persons
were, in whose favor the attempt was made to establish an exception to
the rule; and their numbers constitute a fact that is now historically
important only in its bearing upon a principle of the Constitution.
From the arguments of those who sought to introduce the exception, it
appears that fears were entertained that the retrospective operation
of the rule would expose the acceptance of the Constitution to great
hazards; for the States, it was said, would be reduced to the dilemma
of rejecting it, or of violating the faith pledged to a part of their
citizens. Accordingly, the implied obligation of the States to secure
to their citizens of foreign birth the same privileges with natives
was urged with great force, and it was inferred from the notorious
inducements that had been held out to foreigners to emigrate to
America, and to avail themselves of the easy privileges of
citizenship. Whether the United States were in any way bound to redeem
these alleged pledges of the States, was a nice question of casuistry,
that was a good deal debated in the discussion. But in truth there was
no obligation of public faith in the case, the disregard of which
could be justly made a matter of complaint by anybody. When the States
had made these persons citizens, and through the Articles of
Confederation had conferred upon them the privileges of citizens in
every State in the Union, they did not thereby declare that such
adopted citizens should be immediately eligible to any or all of the
offices under any new government which the American people might see
fit to establish at any future time. To have said that they never
should be eligible, would have been to establish a rule that would
have excluded some of the most eminent statesmen in the country. But
the period in their citizenship when they should be made eligible, was
just as much an open question of public policy, as the period of life
at which all native and all adopted citizens should be deemed fit to
exercise the functions of legislators. If the citizen of foreign birth
was disfranchised by the one requirement, the native citizen was
equally disfranchised by the other, until the disability had ceased.
The question was decided, therefore, and rightly so, upon large
considerations of public policy; and the principal reasons that
exercised a controlling influence upon the decision, and caused the
refusal to establish any exception to the rule, afford an interesting
proof of the national tone and spirit that were intended to be
impressed upon the government at the beginning of its history.
It was quite possible, as all were ready to concede, that the time
might arrive, when the qualification of so extended a period of
citizenship as seven years might not be practically very important;
since the people, after having been long accustomed to the duty of
selecting their representatives, would not often be induced to confer
their suffrages upon a foreigner recently admitted to the position of
a citizen. The mischiefs, too, that might be apprehended from such
appointments would be far less, after the policy of the government had
been settled and the fundamental legislation necessary to put the
Constitution into activity had been accomplished. But the first
Congress that might be assembled under the Constitution would have a
work of great magnitude and importance to perform. Indeed, the
character which the government was to assume would depend upon the
legislation of the few first years of its existence. Its commercial
regulations would then be mainly determined. The relations of the
country with foreign nations, its position towards Europe, its rights
and duties of neutrality, its power to maintain a policy of its own,
would all then be ascertained and settled. Nothing, therefore, could
be more important, than to prevent persons having foreign attachments
from insinuating themselves into the public councils; and with this
great leading object in view, the Convention refused, though by a mere
majority only of the States, to exempt from the rule those foreigners
who had been made citizens under the naturalization laws of the
States.[138]
Thus it appears that the Constitution of the United States discloses
certain distinct purposes with reference to the participation of
foreigners in the political concerns of the country. In the first
place, it was clearly intended that there should be no real
discouragement to immigration. The position and history of the country
from its first settlement, its present and prospective need of labor
and capital, its territorial extent, and the nature of its free
institutions, were all inconsistent with any policy that would prevent
the redundant population of Europe from finding in it an asylum.
Accordingly, the emigrant from foreign lands was placed under no
perpetual disqualifications. The power of naturalization that was
conferred upon the general government, and the accompanying
circumstances attending its transfer by the States, show an intention
that some provision should be made for the admission of emigrants to
the privileges of citizenship, and that in this respect the
inducements to a particular residence should be precisely equal
throughout the whole of the States. The power was not to remain
dormant, under ordinary circumstances, although there might
undoubtedly be occasions when its exercise should be suspended. The
intention was, that the legislature of the United States should always
exercise its discretion on the subject; but the existence of the
power, and the reasons for which it was conferred, made it the duty of
the legislature to exercise that discretion according to the wants of
the country and the requirements of public policy.
In the second place, it is equally clear that the founders of the
government intended that there should be a real, as well as formal,
renunciation of allegiance to the former sovereign of the emigrant,--a
real adoption, in principle and feeling, of the new country to which
he had transferred himself,--an actual amalgamation of his interests
and affections with the interests and affections of the native
population,--before he should have the power of acting on public
affairs. This is manifest, from the discretionary authority given to
Congress to vary the rule of naturalization from time to time as
circumstances might require,--an authority that places the States
under the necessity of restricting their right of suffrage to
citizens, if they would avoid the evils to themselves of an
indiscriminate exercise of that right by all who might choose to claim
it. The period of citizenship, too, that was required as a
qualification for a seat in the popular branch of the government, and
which was extended to nine years for the office of senator, was placed
out of the discretionary power of change by the legislature, in order
that an additional term, beyond that required for the general rights
of citizenship, might for ever operate to exclude the dangers of
foreign predilections and an insufficient knowledge of the duties of
the station.
No one who candidly studies the institutions of America, and considers
what it was necessary for the founders of our government to foresee
and provide for, can hesitate to recognize the wisdom and the
necessity of these provisions. A country of vast extent opened to a
boundless immigration, which nature invited and which man could
scarcely repel,--a country, too, which must be governed by popular
suffrage,--could not permit its legislative halls to be invaded by
foreign influence. The independence of the country would have been a
vain and useless achievement, if it had not been followed by the
practical establishment of the right of self-government by the native
population; and that right could be secured for their posterity only
by requiring that foreigners, who claimed to be regarded as a part of
the people of the country, should be first amalgamated in spirit and
interest with the mass of the nation.
No other changes were made in the proposed qualifications for the
representatives, excepting to require that the person elected should
be an _inhabitant_ of the State for which he might be chosen, at the
time of election, instead of being a _resident_. This change of
phraseology was adopted to avoid ambiguity; the object of the
provision being simply to make the representation of the State a real
one.
The Convention, as we have seen, had settled the rule for computing
the number of inhabitants of a State, for the purposes of
representation, and had made it the same with that for apportioning
direct taxes among the States.[139] The committee of detail provided
that there should be one representative for every forty thousand
inhabitants, when Congress should find it necessary to make a new
apportionment of representatives; a ratio that had not been previously
sanctioned by a direct vote of the Convention, but which had been
recommended by the committee of compromise, at the time when the
nature of the representation in both houses was adjusted.[140] This
ratio was now adopted in the article relating to the House of
Representatives; but not before an effort was made to exclude the
slaves from the enumeration.[141] The renewed discussion of this
exciting topic probably withdrew the attention of members from the
consideration of the numbers of the representatives, and nothing more
was done, at the time we are now examining, than to make a provision
that the number should not exceed one for every forty thousand
inhabitants. But at a subsequent stage of the proceedings,[142] before
the Constitution was sent to the committee of revision, Wilson,
Madison, and Hamilton endeavored to procure a reconsideration of this
clause, for the purpose of establishing a more numerous representation
of the people. Hamilton, who had always and earnestly advocated the
introduction of a strong democratic element into the Constitution,
although he desired an equally strong check to that element in the
construction of the Senate, is represented to have expressed himself
with great emphasis and anxiety respecting the representation in the
popular branch. He avowed himself, says Mr. Madison, a friend to
vigorous government, but at the same time he held it to be essential
that the popular branch of it should rest on a broad foundation. He
was seriously of opinion, that the House of Representatives was on so
narrow a scale as to be really dangerous, and to warrant a jealousy in
the people for their liberties.[143]
But the motion to reconsider was lost,[144] and it was not until the
Constitution had been engrossed, and was about to be signed, that an
alteration was agreed to, at the suggestion of Washington. This was
the only occasion on which he appears to have expressed an opinion
upon any question depending in the Convention. With the habitual
delicacy and reserve of his character, he had confined himself
strictly to the duties of a presiding officer, throughout the
proceedings. But now, as the Constitution was likely to go forth with
a feature that would expose it to a serious objection, he felt it to
be his duty to interpose. But it was done with great gentleness. As he
was about to put the question, he said that he could not forbear
expressing his wish that the proposed alteration might take place. The
smallness of the proportion of representatives had been considered by
many members, and was regarded by him, as an insufficient security for
the rights and interests of the people. Late as the moment was, it
would give him much satisfaction to see an amendment of this part of
the plan adopted. The intimation was enough; no further opposition was
offered, and the ratio was changed to one representative for thirty
thousand inhabitants.[145]
It is now necessary to trace the origin of a peculiar power of the
House of Representatives, that is intimately connected with the
practical compromises on which the government was founded, although
the circumstances and reasons of its introduction into the
Constitution are not generally understood. I refer to the exclusive
power of originating what are sometimes called "money bills." In
making this provision, the framers of our government are commonly
supposed to have been guided wholly by the example of the British
constitution, upon an assumed analogy between the relations of the
respective houses in the two countries to the people and to each
other. This view of the subject is not wholly correct.
At an early period in the deliberations, when the outline of the
Constitution was prepared in a committee of the whole, a proposition
was brought forward to restrain the Senate from originating money
bills, upon the ground that the House would be the body in which the
people would be the most directly represented, and in order to give
effect to the maxim which declares that the people should hold the
purse-strings. The suggestion was immediately encountered by a general
denial of all analogy between the English House of Lords and the body
proposed to be established as the American Senate. In truth, as the
construction of the Senate then stood in the resolutions agreed to in
the committee of the whole, the supposed reason for the restriction in
England would have been inapplicable; for it had been voted that the
representation in the Senate should be upon the same proportionate
rule as that of the House, although the members of the former were to
be chosen by the legislatures, and the members of the latter by the
people, of the States. It was rightly said, therefore, at this time,
that the Senate would represent the people as well as the House; and
that if the reason in England for confining the power to originate
money bills to the House of Commons was that they were the immediate
representatives of the people, the reason had no application to the
two branches proposed for the Congress of the United States.[146] It
was however admitted, that, if the representation in the Senate should
not finally be made a proportionate representation of the people of
the several States, there might be a cause for introducing this
restriction.[147] This intimation referred to a reason that
subsequently became very prominent. But when first proposed, the
restriction was rejected in the committee by a vote of seven States
against three; there being nothing involved in the question at that
time excepting the theoretical merits of such a distinction between
the powers of the two houses.[148]
But other considerations afterwards arose. When the final struggle
came on between the larger and the smaller States, upon the character
of the representation in the two branches, the plan of restricting
the origin of money bills to the House of Representatives presented
itself in a new aspect. The larger States were required to concede an
equality of representation in the Senate; and it was supposed,
therefore, that they would desire to increase the relative power of
the branch in which they would have the greatest numerical strength.
The five States of Massachusetts, Pennsylvania, Virginia, North
Carolina, and South Carolina had steadily resisted the equality of
votes in the Senate. When it was at length found that the States were
equally divided on this question, and it became necessary to appoint
the first committee of compromise, the smaller States tendered to the
five larger ones the exclusive money power of the House, as a
compensation for the sacrifice required of them. It was so reported by
the committee of compromise; and although it met with resistance in
the Convention, and was denied to be a concession of any importance to
the larger States, it was retained in the report,[149] and thus formed
a special feature of the resolutions sent to the committee of detail.
But those resolutions had also established the equality of
representation in the Senate, and the whole compromise, with its
several features, had therefore been once fully ascertained and
settled. A strong opposition, nevertheless, continued to be made to
the exclusive money power of the House, by those who disapproved of it
on its merits; and when the article by which it was given in the
reported draft prepared by the committee of detail was reached, it was
stricken out by a very large vote of the States.[150] In this vote
there was a concurrence of very opposite purposes on the part of the
different States composing the majority. New Jersey, Delaware, and
Maryland, for example, feeling secure of their equality in the Senate,
were not unwilling to allow theoretical objections to prevail, against
the restriction of money bills to the branch in which they would
necessarily be outnumbered. On the other hand, some of the delegates
of Pennsylvania, Virginia, and South Carolina, still unwilling to
acquiesce in the equality of representation in the Senate, may have
hoped to unhinge the whole compromise. There was still a third party
among the members, who insisted on maintaining the compromise in all
its integrity, and who considered that the nature of the
representation in the Senate, conceded to the wishes of the smaller
States, rendered it eminently fit that the House alone should have the
exclusive power to originate money bills.[151]
This party finally prevailed. They rested their first efforts chiefly
upon the fact that the Senate was to represent the States in their
political character. Although it might be proper to give such a body a
negative upon the appropriations to be made by the representatives of
the people, it was not proper that it should tax the people. They
first procured a reconsideration of the vote which had stricken out
this part of the compromise. They then proposed, in order to avoid an
alleged ambiguity, that bills for raising money for the purpose of
_revenue_, or appropriating money, should originate in the House, and
should not be so amended or altered in the Senate as to increase or
diminish the sum to be raised, or change the mode of levying it, or
the object of its appropriation.[152] An earnest and somewhat excited
debate followed this proposition, but it was lost.[153]
In a day or two, however, another effort was made, conceding to the
Senate the power to amend, as in other cases, but confining the right
to the House of originating bills for raising money for the purpose of
revenue, or for appropriating the same, and for fixing the salaries of
officers of the government.[154]