This new proposition was postponed for a long time, until it became

necessary to refer several topics not finally acted upon to a

committee of one member from each State.[155] Among these subjects

there was one that gave rise to protracted conflicts of opinion, which

will be examined hereafter. It related to the mode of choosing the

executive. In the plan reported by the committee of detail, pursuant

to the instructions of the Convention, the executive was to be chosen

by the national legislature, for a period of seven years, and was to

be ineligible a second time. Great efforts were subsequently made to

change both the mode of appointment and the tenure of the office, and

the whole subject was finally referred with others to a committee. In

this committee, a new compromise, which has attracted but little

attention, embraced the long-contested point concerning the origin of

money bills. In this compromise, as in so many of the others on which

the Constitution was founded, two influences are to be traced. There

were in the first place what may be called the merits of a

proposition, without regard to its bearing on the interests of

particular States; and in the second place there were the local or

State interests, which entered into the treatment of every question by

which they could be affected. In studying the compromises of the

Constitution, it is constantly necessary to observe how the

arrangement finally made was arrived at by the concurrence of votes

given from these various motives.

It was now proposed in the new committee, that the executive should be

chosen by electors, appointed by each State in such manner as its

legislature might direct, each State to have a number of electors

equal to the whole number of its senators and representatives in

Congress; that the person having the greatest number of votes,

provided it were a majority of the electors, should be declared

elected; that if there should be more than one having such a majority,

the Senate should immediately choose one of them by ballot; and that

if no person had a majority, the Senate should immediately choose by

ballot from the five highest candidates on the list returned by the

electors. This plan of vesting the election in the Senate, in case

there should be no choice by the electors, was eagerly embraced by the

smaller States, because it was calculated to restore to them the

equilibrium which they would lose in the primary election, by the

preponderance of votes held by the larger States. At the same time, it

gave to the larger States great influence in bringing forward the

candidates, from whom the ultimate choice must be made, when no choice

had been effected by the electors; and it put it in their power, by a

combination of their interests against those of the smaller States, to

choose their candidate at the first election. To this great influence,

many members from the larger States desired, naturally, to add the

privilege of confining the origin of revenue bills to the House of

Representatives. They found in the committee some members from the

smaller States willing to concede this privilege, as the price of an

ultimate election of the executive by the Senate, and of other

arrangements which tended to elevate the tone of the government, by

increasing the power and influence of the Senate. They found others

also who approved of it upon principle. The compromise was accordingly

effected in the committee, and in this attitude the question

concerning revenue bills again came before the Convention.[156]

But there, a scheme that seemed likely to elevate the Senate into a

powerful oligarchy, and that would certainly put it in the power of

seven States, not containing a third of the people, to elect the

executive, when there failed to be a choice by the electors, met with

strenuous resistance. For these and other reasons, not necessary to be

recounted here, the ultimate choice of the executive was transferred

from the Senate to the House of Representatives.[157] This change, if

coupled with the concession of revenue bills to the House, without the

right to amend in the Senate, would have thrown a large balance of

power into the former assembly; and in order to prevent this

inequality, a provision was made, in the words used in the

Constitution of Massachusetts, that the Senate might propose or concur

with amendments, as on other bills. With this addition, the

restriction of the origin of bills for raising revenue to the House of

Representatives finally passed, with but two dissentient votes.[158]

The qualifications of the Senators had been made superior in some

respects to those of the members of the House of Representatives, on

account of the peculiar duties which it was intended they should

discharge, and the length of their term of office. They were to be of

the age of thirty years; to be inhabitants of the States for which

they might be chosen; and in the report of the committee of detail the

period of four years' citizenship was made one of the requirements.

But so great was the jealousy of foreign influence, and so important

was the position of a senator likely to become, that, when this

particular qualification came to be considered, it was found to be

altogether impossible to make so short a period of citizenship

acceptable to a majority. According to the plan then contemplated, the

Senate was to be a body of great power. Its legislative duties were to

form but a part of its functions. It was to have the making of

treaties, and the appointment of ambassadors and judges of the Supreme

Court, without the concurrent action of any other department of the

government. In addition to these special powers, it was to have a

concurrent vote with the House of Representatives in the election of

the executive. It was also to exercise the judicial function of

hearing and determining questions of boundary between the States.

This formidable array of powers, which were subsequently much modified

or entirely taken away, but which no one could then be sure would not

be retained as they had been proposed, rendered it necessary to guard

the Senate with peculiar care. A very animated discussion, in which

the same reasons were urged on both sides which had entered into the

debate on the qualifications of the representatives, enforced by the

peculiar dangers to which the Senate might be exposed, at length

resulted in a vote establishing the period of nine years' citizenship

as a qualification for the office of a senator.[159]

The origin of the number of senators and of the method of voting forms

an interesting and important topic, to which our inquiries should now

be directed. We have already seen that, in the formation of the

Virginia plan of government, as it was digested in the committee of

the whole, the purpose was entertained, and was once sanctioned by a

bare majority of the States, of giving to both branches of the

legislature a proportional representation of the respective

populations of the States; and that the sole difference between the

two chambers then contemplated was to be in the mode of election. But

in the actual situation of the different members of the confederacy,

it was a necessary consequence of such a representation, that the

Senate would be made by it inconveniently large, whether the members

were to be elected by the legislatures, the executives, or the people

of the States. It would, in fact, have made the first Senate to

consist of eighty or a hundred persons, in order to have entitled the

State of Delaware to a single member. This inconvenience was pointed

out at an early period, by Rufus King;[160] but it did not prevent the

adoption of this mode of representation. On the one side of that long

contested question were those who desired to found the whole system of

representation, as between the States, upon their relative numbers of

inhabitants. On the other side were those who insisted upon an

absolute equality between the States. But among the former there was a

great difference of opinion as to the best mode of choosing the

senators,--whether they should be elected by the people in districts,

by the legislatures or the executives of the States, or by the other

branch of the national legislature. So strongly, however, were some of

the members even from the most populous States impressed with the

necessity of preserving the State governments in some connection with

the national system, that, while they insisted on a proportional

representation in the Senate, they were ready to concede to the State

legislatures the choice of its members, leaving the difficulty arising

from the magnitude of the body to be encountered as it might be.[161]

The delegates of the smaller States accepted this concession, in the

belief that the impracticability of constructing a convenient Senate

in this mode would compel an abandonment of the principle of unequal

representation, and would require the substitution of the equality for

which they contended.

In this expectation they were not disappointed; for when the system

framed in the committee came under revision in the Convention, and the

severe and protracted contest ended at last in the compromise

described in a previous chapter, the States were not only permitted to

choose the members of the Senate, but they were admitted to an

equality of representation in that branch, and the subject was freed

from the embarrassment arising from the numbers that must have been

introduced into it by the opposite plan. From this point, the sole

questions that required to be determined related to the number of

members to be assigned to each State, and the method of voting. The

first was a question of expediency only; the last was a question both

of expediency and of principle.

The constant aim of the States, which had from the first opposed a

radical change in the structure of the government, was to frame the

legislature as nearly as possible upon the model of the Congress of

the Confederation. In that assembly, each State was allowed not more

than seven, and not less than two members; but in practice, the

delegations of the States perpetually varied between these two

numbers, or fell below the lowest, and in the latter case the State

was not considered as represented. The method of voting, however,

rendered it unimportant how many members were present from a State,

provided they were enough to cast the vote of the State at all; for

all questions were decided by the votes of a majority of the States,

and not of a majority of the members voting. I have already had

occasion more than once to notice the fact,--and it is one of no

inconsiderable importance,--that the first Continental Congress,

assembled in 1774, adopted the plan of giving to each Colony one vote,

because it was impossible to ascertain the relative importance of the

different Colonies. The record that was then made of this reason for a

method of voting that would have been otherwise essentially unjust,

shows quite clearly that a purpose was then entertained of adopting

some other method at a future time. But when the Articles of

Confederation were framed, in 1781, it appears as clearly from the

discussions in Congress, not only that the same difficulty of

obtaining the information necessary for a different system continued,

but that some of the States were absolutely unwilling to enter the

Confederation upon any other terms than a full federal equality. In

this way the practice of voting by States in Congress was perpetuated

down to the year 1787. It had come to be regarded by some of the

smaller States, notwithstanding the injustice and inconvenience which

it constantly produced, as a kind of birthright; and when the Senate

of the United States came to be framed, and an equality of

representation in it was conceded, some of the members of those States

still considered it necessary to preserve this method of voting, in

order to complete the idea of State representation, and to enable the

States to protect their individual rights.[162] But it is obvious

that, for this purpose, the question had lost its real importance,

when an equal number of Senators was assigned to each State; since,

upon every measure that can touch the separate rights and interests of

a State, the unanimity which is certain to prevail among its

representatives makes the vote of the State as efficient as it could

be if it were required to be cast as a unit, while the chances for its

protection are increased by the opportunity of gaining single votes

from the delegations of other States.

These and similar considerations ultimately led a large majority of

the States to prefer a union of the plan of an equal number of

senators from each State with that which would allow them to vote _per

capita_.[163] The number of two was adopted as the most convenient,

under all the circumstances, because most likely to unite the despatch

of business with the constant presence of an equal number from every

State.

With this peculiar character, the outline of the institution went to

the committee of detail. On the consideration of their report, these

provisions, as we have seen, became complicated with the restriction

of "money bills" to the House of Representatives, and the choice of

the executive. The mode in which those controversies were finally

settled being elsewhere stated, it only remains here to record the

fact that the particular nature and form of the representation in the

Senate was generally acquiesced in, when its relations to the other

branches of the government had been determined.

The difference of origin of the two branches of the legislature made

it necessary to provide for different modes of supplying the vacancies

that might occur in them. The obvious way of effecting this in the

case of a vacancy in the office of a representative was to order a new

election by the people, who can readily assemble for such a purpose;

and the duty of ordering such elections was imposed on the executives

of the States, because those functionaries would be best informed as

to the convenience of their meeting. But the State legislatures, to

whom the choice of senators was to be confided, would be in session

for only a part of the year; and to summon them for the special

purpose of filling a vacancy in the Senate might occasion great

inconvenience. The committee of detail, therefore, provided that

vacancies in the Senate might be supplied by the executive of the

State until the next meeting of its legislature.

It is now time to turn to the examination of that great scheme of

separate and concurrent powers, which it had been proposed to confer

upon the Senate, and the suggestion of which influenced to a great

degree the qualifications of the members, their term of office, and

indeed the entire construction of this branch of the legislature. The

primary purpose of a Senate was that of a second legislative chamber,

having equal authority in all acts of legislation with the first, the

action of both being necessary to the passage of a law. As the

formation of the Constitution proceeded, from the single idea of such

a second chamber, without any special character of representation to

distinguish it from the first, up to the plan of an equal

representation of the States, there was a strong disposition

manifested to accumulate power in the body for which this peculiar

character had been gained. It had been made the depositary of a direct

and equal State influence; and this feature of the system had become

fixed and irrevocable before the powers of the other departments, or

their origin or relations, had been finally settled. The consequence

was, that for a time, wherever jealousy was felt with regard to the

executive or the judiciary,--wherever there was a doubt about

confiding in the direct action of the people,--wherever a chasm

presented itself, and the right mode of filling it did not

occur,--there was a tendency to resort to the Senate.

Thus, when the committee of detail were charged with the duty of

preparing the Constitution according to the resolutions agreed upon in

the Convention, the Senate had not only been made a legislative body,

with authority co-ordinate to that of the House, but it had received

the separate power of appointing the judges, and the power to give a

separate vote in the election of the executive. The power to make war

and treaties, the appointment of ambassadors, and the trial of

impeachments, had not been distinctly given to any department; but

the general intention to be inferred from the resolutions was, that

these matters should be vested in one or both of the two branches of

the legislature. To the executive, the duty had been assigned, which

the name of the office implies, of executing the laws; to which had

been added a revisionary check upon legislation, and the appointment

to offices in cases not otherwise provided for. The judicial power had

been described in general and comprehensive terms, which required a

particular enumeration of the cases embraced by the principles laid

down; but it had not been distinctly foreseen, that one of the cases

to which those principles must lead would be an alleged conflict

between an act of legislation and the fundamental law of the

Constitution. The system thus marked out was carried into detail by

the committee, by vesting in the Senate the power to make treaties, to

appoint ambassadors and judges of the Supreme Court, and to adjudicate

questions of boundary between the States; by giving to the two

branches of the legislature the power to declare war; by assigning the

trial of impeachments to the Supreme Court, and enumerating the other

cases of which it was to have cognizance; and by providing for the

election of the executive by the legislature, and confining its powers

and duties to those prescribed for it by the resolutions.

It is scarcely necessary to pause for the purpose of commenting on the

practical inconveniences of some of these arrangements. However proper

it may be, in a limited and republican government, to vest the power

of declaring war in the legislative department, the negotiation of

treaties by a numerous body had been found, in our own experience, and

in that of other republics, extremely embarrassing. However wise may

be a jealousy of the executive department, it is difficult to say that

the same authority that is intrusted with the appointment to all other

offices should not be permitted to make an ambassador or a judge.

However august may be a proceeding that is to determine a boundary

between sovereign States, it is nothing more and nothing less than a

strictly judicial controversy, capable of trial in the ordinary forms

and tribunals of judicature, besides being one that ought to be safely

removed from all political influences. However necessary it may be

that an impeachment should be conducted with the solemnities and

safeguards of allegation and proof, it is not always to be decided by

the rules with which judges are most familiar, or to be determined by

that body of law which it is their special duty to administer. However

desirable it may be, that an elective chief magistracy should be

filled with the highest capacity and fitness, and that popular tumults

should be avoided, no government has yet existed, in which the

election of such a magistrate by the legislative department has

afforded any decided advantage over an election directly or indirectly

by the people; and to give a body constituted as the American Senate

is a negative in the choice of the executive, would be certainly

inconvenient, probably dangerous.

But the position of the Senate as an assembly of the States, and

certain opinions of its superior fitness for the discharge of some of

these duties, had united to make it far too powerful for a safe and

satisfactory operation of the government. It was found to be

impossible to adjust the whole machine to the quantity of power that

had been given to one of its parts. It was eminently just and

necessary that the States should have an equal and direct

representation in some branch of the government; but that a majority

of the States, containing a minority of the people, should possess a

negative in the appointment of the executive, and in the question of

peace or war, and the sole voice in the appointment of judges and

ambassadors, was neither necessary nor proper. Theoretically, it might

seem appropriate that a question of boundary between any two of the

States represented in it should be committed to the Senate, as a court

of the peers of the sovereign parties to the dispute; but practically,

this would be a tribunal not well fitted to try a purely judicial

question. It became necessary, therefore, to discover the true limit

of that control which the nature of the representation in the Senate

was to be allowed to give to a majority of the States. There had been

some effort, in the progress of the controversy respecting the

representative system, to confine the equal power of the States, in

matters of legislation, to particular questions or occasions; but it

had turned out to be impracticable thus to divide or limit the

ordinary legislative authority of the same body. If the Senate, as an

equal assembly of the States, was to legislate at all, it must

legislate upon all subjects by the same rule and method of suffrage.

But when the question presented itself as to the separate action of

this assembly,--how far it should be invested with the appointment of

other functionaries, how far it should control the relations of the

country with foreign nations, how far it should partake both of

executive and judicial powers,--it was much less difficult to draw the

line, and to establish proper limits to the direct agency of the

States. Those limits could not indeed be ascertained by the mere

application of theoretical principles. They were to be found in the

primary necessity for reposing greater powers in other departments,

for adjusting the relations of the system by a wider distribution of

authority, and for confiding more and more in the intelligence and

virtue of the people; and therefore it is, that, in these as in other

details of the Constitution, we are to look for the clew that is to

give us the purpose and design, quite as much to the practical

compromises which constantly took place between opposite interests, as

to any triumph of any one of opposite theories.

The first experiment that was made towards a restriction of the power

of the Senate, and an adjustment of its relations to the other

departments, was the preparation of a plan, by which the President was

to have the making of treaties, and the appointment of ambassadors,

judges of the Supreme Court, and all other officers not otherwise

provided for, by and with, the advice and consent of the Senate. The

trial of impeachments, of the President included, was transferred to

the Senate, and the trial of questions of boundary was placed, like

other controversies between States, within the scope of the judicial

power. The choice of the President was to be made in the first

instance by electors appointed by each State, in such manner as its

legislature might direct, each State to have a number of electors

equal to the whole number of its senators and representatives in

Congress; but if no one of the persons voted for should have a

majority of all the electors, or if more than one person should have

both a majority and an equal number of votes, the Senate were to

choose the President from the five highest candidates voted for by the

electors. In this plan, there was certainly a considerable increase of

the power of the President; but there was not a sufficient diminution

of the power of the Senate. The President could nominate officers and

negotiate treaties; but he must obtain the consent of the body by whom

he might have been elected, and by whom his re-election might be

determined, if he were again to become a candidate. It appeared,

therefore, to be quite necessary, either to take away the revisionary

control of the Senate over treaties and appointments, or to devise

some mode by which the President could be made personally independent

of that assembly. He could be made independent only by taking away all

agency of the Senate in his election, or by making him ineligible to

the office a second time. There were two serious objections to the

last of these remedies,--the country might lose the services of a

faithful and experienced magistrate, whose continuance in office would

be highly important; and even in a case where no pre-eminent merit had

challenged a re-election, the effect of an election by the Senate

would always be pernicious, and must be visible throughout the whole

term of the incumbent who had been successful over four other

competitors.

And after all, what necessity was there for confiding this vast power

to the Senate, opening the door of a small body to the corruption and

intrigue for which the magnitude of the prize to be gained and to be

given, and the facility for their exercise, would furnish an enormous

temptation? Was it so necessary that the States should force their

equality of privilege and of power into every department of the

Constitution, making it felt not only in all acts of legislation, but

in the whole administration of the executive and judicial duties? Was

nothing due to the virtue and sense and patriotism of a majority of

the people of the United States? Might they not reasonably be expected

to constitute a body of electors, who, chosen for the express purpose,

and dissolved as soon as their function had been discharged, would be

able to make an upright and intelligent choice of a chief magistrate

from among the eminent citizens of the Union?

Questions like these, posterity would easily believe, without the

clear record that has descended to them, must have anxiously and

deeply employed the framers of the Constitution. They were to

consider, not only what was theoretically fit and what would

practically work with safety and success, but what would be accepted

by the people for whom they were forming these great institutions.

That people undoubtedly detested everything in the nature of a

monarchy. But there was another thing which they hated with equal

intensity, and that was an oligarchy. Their experience had given them

quite as much reason for abhorring the one as the other. Such, at

least, was their view of that experience. A king, it is true, was the

chief magistrate of the mother country against which they had

rebelled, against which they had fought successfully for their

independence. The measures that drove them into that resistance were

executed by the monarch; but those measures were planned, as they

believed, by a ministry determined to enslave them, and were

sanctioned by a Parliament in which even the so-called popular branch

was then but another phase of the aristocracy which ruled the empire.

The worst enemy our grandfathers supposed they had in England,

throughout their Revolution, was the ministerial majority of that

House of Commons, made up of placemen sitting for rotten boroughs, the

sons of peers, and the country gentlemen, who belonged to a caste as

much as their first-cousins who sat by titles in the House of Lords.

Our ancestors did not know--they went to their graves without

knowing--that in the hard, implacable temper of the king, made harder

and more implacable by a narrow and bigoted conscientiousness, was

the real cause for the persistency in that fatal policy which severed

these Colonies from his crown.

That long struggle had been over for several years, and its result was

certainly not to be regretted by the people of America. But it had

left them, as it naturally must have left them, with as strong

prejudices and jealousies against every aristocratic, as against every

monarchical institution. Public liberty in England they knew might

consist with an hereditary throne, and with a privileged and powerful

aristocracy. But public liberty in America could consist with neither.

The people of the United States could submit to restraints; they could

recognize the necessity for checks and balances in the distribution of

authority; and they understood as much of the science of government as

any people then alive. But an institution,--however originating and

however apparently necessary its peculiar construction might

be,--embracing but a small number of persons, with power to elect the

chief magistrate, with power to revise every appointment from a chief

justice down to a tidewaiter, with power to control the President

through his subordinate agents, with power to reject every treaty that

he might negotiate, and with power to sit in judgment on his

impeachment, they would not endure. "We have, in some revolutions of

this plan of government," said Randolph, "made a bold stroke for

monarchy. We are now doing the same for an aristocracy."

How to attain the true intermediate ground, to avoid the substance of

a monarchy and the substance of an aristocracy, and yet not to found

the system on a mere democracy, was a problem not easy of solution.

All could see, that a government extended over a country so large,

which was to have the regulation of its commerce, the collection of

great revenues, the care of a vast public domain, the superintendence

of intercourse with hordes of savage tribes, the control of relations

with all the nations of the world, the administration of a peculiar

jurisprudence, and the protection of the local constitutions from

violence, must have an army and a navy, and great fiscal,

administrative, and judicial establishments, embracing a very numerous

body of public officers. To give the appointment of such a multitude

of public servants, invested with such functions, to the unchecked

authority of the President, would be to create an executive with power

not less formidable and real than that of some monarchs, and far

greater than that of others. No one desired that a sole power of

appointment should be vested in the President alone; it was

universally conceded that there must be a revisionary control lodged

somewhere, and the only question was where it should be placed. That

it ought to be in a body independent of the executive, and not in any

council of ministers that might be assigned to him, was apparent; and

there was no such body, excepting the Senate, which united the

necessary independence with the other qualities needful for a right

exercise of this power.

The negotiation of treaties was obviously a function that should be

committed to the executive alone. But a treaty might undertake to

dismember a State of part of its territory, or might otherwise affect

its individual interests; and even where it concerned only the general

interests of all the States, there was a great unwillingness to

intrust the treaty-making power exclusively to the President. Here,

the States, as equal political sovereignties, were unwilling to relax

their hold upon the general government; and the result was that

provision of the Constitution which makes the consent of two thirds of

the Senators present necessary to the ratification of a treaty.

But if it was to have these great overruling powers, the Senate must

have no voice in the appointment of the executive. There were two

modes in which the election might be arranged, so as to prevent a

mutual connection and influence between the Senate and the President.

The one was, to allow the highest number of electoral votes to appoint

the President;[164] the other was, to place the eventual election--no

person having received a majority of all the electoral votes--in the

House of Representatives. The latter plan was finally adopted, and the

Senate was thus effectually severed from a dangerous connection with

the executive.

This separation having been effected, the objections which had been

urged against the length of the senatorial term became of little

consequence. In the preparation of the plan marked out in the

resolutions sent to the committee of detail, the Senate had been

considered chiefly with reference to its legislative function; and the

purpose of those who advocated a long term of office was to establish

a body in the government of sufficient wisdom and firmness to

interpose against the impetuous counsels and levelling tendencies of

the democratic branch.[165] Six years was adopted as an intermediate

period between the longest and the shortest of the terms proposed; and

in order that there might be an infusion of different views and

tendencies from time to time, it was provided that one third of the

members should go out of office biennially.[166] Still, in the case of

each individual senator, the period of six years was the longest of

the limited terms of office created by the Constitution. Under the

Confederation, the members of the Congress had been chosen annually,

and were always liable to recall. The people of the United States were

in general strongly disposed to a frequency of elections. A term of

office for six years would be that feature of the proposed Senate most

likely, in the popular mind, to be regarded as of an aristocratic

tendency. If united with the powers that have just passed under our

review, and if to those powers it could be said that an improper

influence over the executive had been added, the system would in all

probability be rejected by the people. But if the Senate were deprived

of all agency in the appointment of the President, it would be mere

declamation to complain of their term of office; for undoubtedly the

peculiar duties assigned to the Senate could be best discharged by

those who had had the longest experience in them. The solid objection

to such a term being removed, the complaint of aristocratic tendencies

would be confined to those who might wish to find plausible reasons

for opposition, and might not wish to be satisfied with the true

reasons for the provision.

Having now described the formation and the special powers of the two

branches of the legislature, I proceed to inquire into the origin and

history of the disqualifications to which the members were subjected.

The Constitution of the United States was framed and established by a

generation of men, who had observed the operation upon the English

legislature of that species of influence, by the crown or its

servants, which, from the mode of its exercise, not seldom amounting

to actual bribery, has received the appropriate name of parliamentary

corruption. That generation of the American people knew but

little--they cared less--about the origin of a method of governing the

legislative body, which implies an open or a secret venality on the

part of its members, and a willingness on the part of the

administration to purchase their consent to its measures. What they

did know and what they did regard was, that for a long succession of

years the votes of members of Parliament had been bought, with money

or office, by nearly every minister who had been at the head of

affairs; that, if this practice had not been introduced under the

prince who was placed upon the throne by the revolution of 1688, it

had certainly grown to a kind of system in the hands of the statesmen

by whom that revolution was effected, and had attained its greatest

height under the first two princes of the house of Hanover; that it

was freely and sometimes shamefully applied throughout the American

war; and that, down to that day, no British statesman had had the

sagacity to discover, and the virtue to adopt, a purer system of

administration.[167] Whether this was a necessary vice of the English

constitution; whether it was inherent or temporary; or whether it was

only a stage in the development of parliamentary government, destined

to pass away when the relations of the representative body to the

people had become better settled,--could not then be seen even in

England. But to our ancestors, when framing their Constitution, it

presented itself as a momentous fact; whose warning was not the less

powerful, because it came from the centre of institutions with which

they had been most familiar, and from the country to which they traced

their origin,--a country in which parliamentary government had had the

fairest chances for success that the world had witnessed.

Yet it would not have been easy at that time, as it is not at the

present, and as it may never be, to define with absolute precision the

true limits which executive influence with the legislative body should

not be suffered to pass. Still less is it easy to say that such

influence ought not to exist at all;[168] although it is not difficult

to say that there are methods in which it should not be suffered to be

exercised. The more elevated and more clear-sighted public morality of

the present age, in England and in America, condemns with equal

severity and equal justice both the giver and the receiver in every

transaction that can be regarded as a purchase of votes upon

particular measures or occasions, whatever may have been the

consideration or motive of the bargain. But whether that morality

goes, or ought to go, farther,--whether it includes, or ought to

include, in the same condemnation, every form of influence by which an

administration can add extrinsic weight to the merits of its

measures,--is a question that admits of discussion.

It may be said, assuming the good intentions of an administration, and

the correctness of its policy and measures, that its policy and its

measures should address themselves solely to the patriotism and sense

of right of the members of the legislative department. But an ever

active patriotism and a never failing sense of right are not always,

if often, to be found; the members of a legislative body are men, with

the imperfections, the failings, and the passions of men; and if pure

patriotism and right perceptions of duty are alone relied upon, they

may, and sometimes inevitably will be, found wanting. On the other

hand, it is just as true, that the persons composing every

administration are mere men, and that it will not do to assume their

wisdom and good intentions as the sole foundations on which to rest

the public security, leaving them at liberty to use all the appliances

that may be found effectual for gaining right ends, and overlooking

the character of the means. One of the principal reasons for the

establishment of different departments, in the class of governments to

which ours belongs, is, that perfect virtue and unerring wisdom are

not to be predicated of any man in any station. If they were, a simple

despotism would be the best and the only necessary form of

government.

All correct reasoning on this subject, and all true construction of

governments like ours, must commence with two propositions, one of

which embraces a truth of political science, and the other a truth of

general morals. The first is, that, while the different functions of

government are to be distributed among different persons, and to be

kept distinctly separated, in order that there may be both division of

labor and checks against the abuse of power, it is occasionally

necessary that some room should be allowed for supplying the want of

wisdom or virtue in one department by the wisdom or virtue of another.

In matters of government depending on mere discretion, unlimited

confidence cannot with safety be placed anywhere.[169] The other

proposition is the very plain axiom in morals, that, while in all

human transactions there may be bad means employed to effect a worthy

object, the character of those means can never be altered, nor their

use justified, by the character of the end. With these two

propositions admitted, what is to be done is to discover that

arrangement of the powers and relations of the different departments

whose acts involve, more or less, the exercise of pure discretion,

which will give the best effect to both of these truths; and as all

government and all details of government, to be useful, must be

practically adapted to the nature of man, it will be found that an

approximation in practice to a perfect theory is all that can be

attained.

Thus the general duties and powers of the legislative and the

executive departments are capable of distinct separation. The one is

to make, the other is to execute the laws. But execution of the laws

of necessity involves administration, and administration makes it

necessary that there should be an executive policy. To carry out that

policy requires new laws; authority must be obtained to do acts not

before authorized; and supplies must be perpetually renewed. The

executive stands therefore in a close relation to the legislative

department;--a relation which makes it necessary for the one to appeal

frequently, and indeed constantly, to the discretion of the other. If

the executive is left at liberty to purchase what it believes or

alleges to be the right exercise of that discretion, by the

inducements of money or office applied to a particular case, the rule

of common morals is violated; conscience becomes false to duty, and

corruption, having once entered the body politic, may be employed to

effect bad ends as well as good. Nay, as bad ends will stand most in

need of its influence, it will be applied the most grossly where the

object to be attained is the most culpable. On the other hand, if the

members of the legislative body, by being made incapable of accepting

the higher or more lucrative offices of state, are cut off from those

inducements to right conduct and a true ambition which the

imperfections of our nature have made not only powerful, but sometimes

necessary, aids to virtue, the public service may have no other

security than their uncertain impulses or imperfect judgments. In the

midst of such tendencies to opposite mischiefs, all that human wisdom

and foresight can do is, to anticipate and prevent the evils of both

extremes, by provisions which will guard both the interests of

morality and the interests of political expediency as completely as

circumstances will allow.

I am persuaded it was upon such principles as I have thus endeavored

to state, that the framers of our national Constitution intended to

regulate this very difficult part of the relations between the

executive and the legislature. During a considerable period, however,

of their deliberations on the disabilities to which it would be proper

to subject the members of the latter department, they had another

example before them besides that afforded by the history of

parliamentary corruption in England. The Congress of the Confederation

had of course the sole power of appointment to offices under the

authority of the United States; and although there is no reason to

suppose that body at any time to have been justly chargeable with

corrupt motives, there were complaints of the frequency with which it

had filled the offices which it had created with its own members. In

these complaints, the people overlooked the justification. They forgot

that the nature of the government, and the circumstances of the

country, rendered it difficult for an assembly which both made and

filled the offices, and which exercised its functions at a time when

the State governments absorbed by far the greater part of the

interests and attention of their citizens, to find suitable men out of

its own ranks. In that condition of things, it might have been

expected,--and it implies no improper purpose,--that offices would be

sometimes framed or regulated with a view to their being filled by

particular persons. But the complaints existed;[170] the evil was one

that tended constantly to become worse; and, in framing the new

government, this was the first aspect in which the influence of office

and its emoluments presented itself to the Convention.

For when the Virginia members, through Edmund Randolph, brought

forward their scheme of government, they not only gave the executive

no power of appointment to any office, but they proposed to vest the

appointment of both the executive and the judiciary in the

legislature. Hence they felt the necessity of guarding against the

abuse that might follow, if the members of the legislature were to be

left at liberty to appoint each other to office,--an abuse which they

knew had been imputed to the Congress, and which they declared had

been grossly practised by their own legislature.[171] They proposed,

therefore, to go beyond the Confederation, and to make the members of

both branches ineligible to any office established under the authority

of the United States, (excepting those peculiarly belonging to their

own functions,) during their term of service and for one year after

its expiration. This provision passed the committee of the whole; but

in the Convention, on a motion made by Mr. Gorham to strike it out,

the votes of the States were divided. An effort was then made by Mr.

Madison to find a middle ground, between an eligibility in all cases

and an absolute disqualification. If the unnecessary creation of

offices and the increase of salaries was the principal evil to be

anticipated, he believed that the door might be shut against that

abuse, and might properly be left open for the appointment of members

to places not affected by their own votes, as an encouragement to the

legislative service. But there were several of the stern patriots of

the Convention who insisted on a total exclusion, and who denied that

there was any such necessity for holding out inducements to enter the

legislature.[172] This was a question on which different minds, of

equal sagacity and equal purity, would naturally arrive at different

conclusions. Still, it is apparent that the mischiefs most apprehended

at the time of Mr. Madison's proposition would be in a great degree

prevented, by taking from the legislature the power of appointing to

office; and that this modification of the system was what was needed,

to make his plan a true remedy for the abuses that had been displayed

in our own experience. The stigma of venality cannot properly be

applied to the laudable ambition of rising into the honorable offices

of a free government; and if the opportunity to create places, or to

increase their emoluments, and then to secure those places, is taken

away, by vesting the appointment in the executive, the question turns

mainly on the relations that ought to exist between that department

and the legislature. But Mr. Madison's suggestion was made before it

was ascertained that the executive would have any power of

appointment, and it was accordingly rejected;--a majority of the

delegations considering it best to retain the ineligibility in all

cases, as proposed by the Virginia plan.[173] In this way, the

disqualification became incorporated into the first draft of the

Constitution, prepared by the committee of detail.[174]

But by this time it was known that a large part of the patronage of

the government must be placed in the hands of the President; for it

had been settled that he was to appoint to all offices not otherwise

provided for, and the cases thus excepted were those of judges and

ambassadors, which stood, in this draft of the Constitution, vested in

the Senate. A strong opposition to this arrangement, however, had

already manifested itself, and the result was very likely to be,--as

it in fact turned out,--that nearly the whole of the appointments

would be made on the nomination of the President, even if the Senate

were to be empowered to confirm or reject them. Accordingly, when this

clause came under consideration, the principle of an absolute

disqualification for office was vigorously attacked, and as vigorously

defended. The inconvenience and impolicy of excluding officers of the

army and navy from the legislature; of rendering it impossible for the

executive to select a commander-in-chief from among the members, in

cases of pre-eminent fitness; of refusing seats to the heads of

executive departments; and of closing the legislature as an avenue to

other branches of the public service,--were all strenuously urged and

denied.[175] At length, a middle course became necessary, to

reconcile all opinions. By a very close vote, the ineligibility was

restrained to cases in which the office had been created, or the

emolument of it increased, during the term of membership;[176] and a

seat in the legislature was made incompatible with any other office

under the United States.[177]

Some at least of the probable sources of corruption were cut off by

these provisions. The executive can make no bargain for a vote, by the

promise of an office which has been acted upon by the member whose

vote is sought for; and there can be no body of placemen, ready at all

times to sell their votes as the price for which they are permitted to

retain their places. At the same time, the executive is not deprived

of the influence which attends the power of appointing to offices not

created, or the emoluments of which have not been increased, by any

Congress of which the person appointed has been a member. This

influence is capable of abuse; it is also capable of being honorably

and beneficially exerted. Whether it shall be employed corruptly or

honestly, for good or for bad purposes, is left by the Constitution to

the restraints of personal virtue and the chastisements of public

opinion.

A serious question, however, has been made, whether the interests of

the public service, involved in the relations of the two departments,

would not have been placed upon a better footing, if some of the

higher officers of state had been admitted to hold seats in the

legislature. Under the English constitution, there is no practical

difficulty, at least in modern times, in determining the general

principle that is to distinguish between the class of officers who

can, and those who cannot, be usefully allowed to have seats in the

House of Commons. The principle which, after much inconsistent

legislation and many abortive attempts to legislate, has generally

been acted on since the reign of George II., is, that it is both

necessary and useful to have in that House some of the higher

functionaries of the administration; but that it is not at all

necessary, and not useful, to allow the privilege of sitting in

Parliament to subordinate officers.[178] The necessity of the case

arises altogether from the peculiar relations of the ministry to the

crown, and of the latter to the Commons. If the executive government

were not admitted, through any of its members, to explain and

vindicate its measures, to advocate new grants of authority, or to

defend the prerogatives of the crown, the popular branch of the

legislature would either become the predominant power in the state, or

sink into insignificance. This is conceded by the severest writers on

the English government.

But when we pass from a civil polity which it has taken centuries to

produce, and which has had its departments adjusted much less by

reference to exact principles than by the results of their successive

struggles for supremacy over each other, and when we come to an

original distribution of powers, in the arrangements of a constitution

made entire and at once by a single act of the national will, we must

not give too much effect to analogies which after all are far from

being complete. In preparing the Constitution of the United States,

its framers had no prerogative, in any way resembling that of the

crown of England, to consider and provide for. The separate powers to

be conferred on the chief magistracy--aside from its concurrence in

legislation--were simply executive and administrative; the office was

to be elective, and not hereditary; and its functions, like those of

the legislature, were to be prescribed with all the exactness of which

a written instrument is capable. There was, therefore, little of such

danger that the one department would silently or openly encroach on

the rights or usurp the powers of the other, as there is where there

exists hereditary right on the one side and customary right on the

other, and where the boundaries between the two departments are to be

traced by the aid of ancient traditions, or collected from numerous

and perhaps conflicting precedents. There was no such necessity,

therefore, as there is in England, for placing members of the

administration in the legislature, in order to preserve the balance of

the Constitution. The sole question with us was, whether the public

convenience required that the administration should be able to act

directly upon the course of legislation. The prevailing opinion was

that this was not required. This opinion was undoubtedly formed under

the fear of corruption and the jealousy of executive power, chiefly

produced--and justly produced--by the example of what had long existed

in England. That the error, if any was committed, lay on the safer

side, none can doubt. It is possible that the chances of a corrupt

influence would not have been increased, and that the opportunities

for a salutary influence might have been enlarged,--as it is highly

probable that the convenience of communication would have been

promoted,--if some of the higher officers of state could have been

allowed to hold seats in either house of Congress. But it is difficult

to see how this could have been successfully practised, under the

system of representation and election which the framers of the

Constitution were obliged to establish: and perhaps this is a decisive

answer to the objection.[179]

Among the powers conceded by the Constitution to the legislature of

each State is that of prescribing the time, place, and manner of

holding the elections of its senators and representatives in Congress.

This provision[180] originated with the committee of detail; but, as

it was reported by them, there was no other authority reserved to

Congress itself than that of altering the regulations of the States;

and this authority extended as well to the place of choosing the

senators, as to all the other circumstances of the election.[181] In

the Convention, however, the authority of Congress was extended beyond

the alteration of State regulations, so as to embrace a power to make

rules, as well as to alter those made by the States. But the place of

choosing the senators was excepted altogether from this restraining

authority, and left to the States.[182] Mr. Madison, in his minutes,

adds the explanation, that the power of Congress to _make_ regulations

was supplied, in order to enable them to regulate the elections, if

the States should fail or refuse to do so.[183] But the text of the

Constitution, as finally settled, gives authority to Congress at "any

time" to "make or alter such regulations"; and this would seem to

confer a power, which, when exercised, must be paramount, whether a

State regulation exists at the time or not.

There is one other peculiarity of the American legislature, of which

it is proper in this connection to give a brief account; namely, the

compensation of its members for their public services. In the plan

presented by the Virginia delegation, it was proposed that the members

of both branches should receive "liberal stipends"; but it was not

suggested whether they were to be paid by the States, or from the

national treasury. The committee of the whole determined to adopt the

latter mode of payment; and as the representation in both branches,

according to the first decision, was to be of the same character, no

reason was then suggested for making a difference in the source of

their compensation. But when the construction of the Senate was

considered in the Convention, the idea was suggested that this body

ought in some way to represent wealth; and it was apparently under the

influence of this suggestion, that, after a refusal to provide for a

payment of the senators by their States, payment out of the national

treasury was stricken from the resolution under debate.[184] There was

thus introduced into the resolutions sent to the committee of detail,

a discrepancy between the modes of compensating the members of the two

branches; for while the members of the House were to be paid "an

adequate compensation" out of "the public treasury," the Senate were

to receive "a compensation for the devotion of their time to the

public service," but the source of payment was not designated. But

when the whole body of those resolutions had been acted on, the

character of the representation in the Senate had been settled, and

the idea of its being made a representation of wealth, in any sense,

had been rejected. The committee of detail had, therefore, in giving

effect to the decisions of the Convention, to consider merely whether

the members of the two branches should be paid by their States, or

from the national treasury; and for the purpose of making the same

provision as to both, and in order to avoid the question whether the

Constitution should establish the amount, or should leave it to be

regulated by the Congress itself, they provided that the members of

each house should receive a compensation for their services, to be

ascertained and paid by the State in which they should be chosen.[185]

This, however, was to encounter far greater evils than it avoided. If

paid by their States, the members of the national legislature would

not only receive different compensations, but they would be directly

subjected to the prejudices, caprices, and political purposes of the

State legislatures. Whatever theory might be maintained with respect

to the relations between the representatives, in either branch, and

the State in which they were chosen, or the people of the States, to

subject one class of public servants to the power of another class

could not fail to produce the most mischievous consequences. A large

majority of the States, therefore, decided upon payment out of the

national treasury,[186] and it was finally determined that the rate

of compensation should not be fixed by the Constitution, but should be

left to be ascertained by law.[187]

Among the separate functions assigned by the Constitution to the

houses of Congress are those of presenting and trying impeachments. An

impeachment, in the report of the committee of detail, was treated as

an ordinary judicial proceeding, and was placed within the

jurisdiction of the Supreme Court. That this was not in all respects a

suitable provision, will appear from the following considerations.

Although an impeachment may involve an inquiry whether a crime against

any positive law has been committed, yet it is not necessarily a trial

for crime; nor is there any necessity, in the case of crimes committed

by public officers, for the institution of any special proceeding for

the infliction of the punishment prescribed by the laws, since they,

like all other persons, are amenable to the ordinary jurisdiction of

the courts of justice, in respect of offences against positive law.

The purposes of an impeachment lie wholly beyond the penalties of the

statute or the customary law. The object of the proceeding is to

ascertain whether cause exists for removing a public officer from

office. Such a cause may be found in the fact, that, either in the

discharge of his office, or aside from its functions, he has violated

a law, or committed what is technically denominated a crime. But a

cause for removal from office may exist, where no offence against

positive law has been committed, as where the individual has, from

immorality or imbecility or maleadministration, become unfit to

exercise the office. The rules by which an impeachment is to be

determined are therefore peculiar, and are not fully embraced by those

principles or provisions of law which courts of ordinary jurisdiction

are required to administer.

From considerations of this kind, especially when applied to the

impeachment of a President of the United States, the Convention found it

expedient to place the trial in the Senate. In fact, the whole subject

of impeachments, as finally settled in the Constitution, received its

impress in a great degree from the attention that was paid to the

bearing of this power upon the executive. Few members of the Convention

were willing to constitute a single executive, with such powers as were

proposed to be given to the President, without subjecting him to removal

from office on impeachment; and when it was perceived to be necessary to

confer upon him the appointment of the judges, it became equally

necessary to provide some other tribunal than the Supreme Court for the

trial of his impeachment. There was no other body already provided for

in the government, with whom this jurisdiction could be lodged,

excepting the Senate; and the only alternative to this plan was to

create a special tribunal for the sole purpose of trying impeachments of

the President and other officers. This was justly deemed a manifest

inconvenience; and although there were various theoretical objections

suggested against placing the trial in the Senate, on the question being

stated there were found to be but two dissentient States.[188] This

point having been settled, in relation to impeachments of the President,

the trial of impeachments of all other civil officers of the United

States was, for the sake of uniformity, also confided to the

Senate.[189] The power of impeachment was confined, as originally

proposed, to the House of Representatives.[190]

The number of members of each house that should be made a _quorum_ for

the transaction of business gave rise to a good deal of difference of

opinion. The controlling reason why a smaller number than a majority

of the members of each house should not be permitted to make laws, was

to be found in the extent of the country and the diversity of its

interests. The central States, it was said, could always have their

members present with more convenience than the distant States; and

after some discussion, it was determined to establish a majority of

each house as its quorum for the transaction of business, giving to a

smaller number power to adjourn from day to day, and to compel the

attendance of absent members.[191]

Provisions making each house the judge of the elections, returns, and

qualifications of its own members; that for any speech, or debate in

either house no member shall be questioned in any other place; and

that in all cases, except treason, felony, or breach of the peace, the

members shall be privileged from arrest during their attendance at,

and in going to and returning from, the sessions of their respective

houses,--were agreed to without any dissent.[192]

The power of each house to determine the rules of its proceedings, to

punish its members for disorderly behavior, and to expel with the

concurrence of two thirds, was agreed to with general assent.[193]

Each house was also directed to keep a journal of its proceedings, and

from time to time to publish the same, excepting such parts as may in

their judgment require secrecy; and one fifth of the members present

in either house were empowered to require the yeas and nays to be

entered on its journal.[194]

The report of the committee of detail had made no provision for such

an officer as the Vice-President of the United States, and had

therefore declared that the Senate, as well as the House, should

choose its own presiding officer. This feature of their report

received the sanction of the Convention; but subsequently, when it

became necessary to create an officer to succeed the President of the

United States, in case of death, resignation, or removal from office,

the plan was adopted of making the former _ex officio_ the presiding

officer of the Senate, giving him a vote only in cases where the votes

of the members are equally divided.[195] To this was added the further

provision, that the Senate shall choose, besides all its other

officers, a President _pro tempore_, in the absence of the

Vice-President, or when he shall exercise the office of President of

the United States.[196] The House of Representatives were empowered to

choose their own Speaker, and other officers, as originally

proposed.[197]

The mode in which laws were to be enacted was the last topic

concerning the action of the legislature which required to be dealt

with in the Constitution. The principle had been already settled, that

the negative of the President should arrest the passage of a law,

unless, after he had refused his concurrence, it should be passed by

two thirds of the members of each house. In order to give effect to

this principle, the committee of detail made the following

regulations, which were adopted into the Constitution;--that every

bill, which shall have passed the two houses, shall, before it become

a law, be presented to the President of the United States; that, if he

approve, he shall sign it, but if not, he shall return it, with his

objections, to the house in which it originated, who shall enter the

objections at large on their journal, and proceed to reconsider it;

that if, after such reconsideration, two thirds of that house agree to

pass the bill, it is to be sent with the objections to the other

house, by which it is likewise to be reconsidered, and, if approved by

two thirds of that house, it is to become a law; but in all such

cases, the votes of both houses are to be determined by yeas and nays

entered upon the journal. If any bill be not returned by the President

within ten days (Sundays excepted) after it has been presented to him,

it is to become a law, in like manner as if he had signed it, unless

the Congress by adjourning prevent its return, in which case it is not

to become a law. All orders, resolutions, and votes to which the

concurrence of both houses is necessary, (except on a question of

adjournment,) are subject to these provisions.[198]

The two important differences between the negative thus vested in the

President of the United States and that which belongs to the King of

England are, that the former is a qualified, while the latter is an

absolute, power to arrest the passage of a law; and that the one is

required to render to the legislature the reasons for his refusal to

approve a bill, while the latter renders no reasons, but simply

answers that he will advise of the matter, which is the parliamentary

form of signifying a refusal to approve. The provision in our

Constitution which requires the President to communicate to the

legislature his objections to a bill, was rendered necessary by the

power conferred upon two thirds of both houses to make it a law,

notwithstanding his refusal to sign it. By this power, which makes the

negative of the President a qualified one only, the framers of the

Constitution intended that the two houses should take into

consideration the objections which may have led the President to

withhold his assent, and that his assent should be dispensed with, if,

notwithstanding those objections, two thirds of both houses should

still approve of the measure. These provisions, therefore, on the one

hand, give to the President a real participation in acts of

legislation, and impose upon him a real responsibility for the

measures to which he gives his official approval, while they give him

an important influence over the final action of the legislature upon

those which he refuses to sanction; and, on the other hand, they

establish a wide distinction between his negative and that of the King

in England. The latter has none but an absolute "veto"; if he refuse

to sign a bill, it cannot become a law; and it is well understood,

that it is on account of this absolute effect of the refusal, that

this prerogative has been wholly disused since the reign of William

III., and that the practice has grown up of signifying, through the

ministry, the previous opposition of the executive, if any exists,

while the measure is under discussion in Parliament. It is not needful

to consider here which mode of legislation is theoretically or

practically the best. It is sufficient to notice the fact, that the

absence from our system of official and responsible advisers of the

President, having seats in the legislature, renders it impracticable

to signify his views of a measure, while it is under the

consideration of either house. For this reason, and because the

President himself is responsible to the people for his official acts,

and in order to accompany that responsibility with the requisite power

both to act upon reasons and to render them, our Constitution has

vested in him this peculiar and qualified negative.[199]

The remaining topic that demands our inquiries, respecting the

legislature, relates to the place of its meeting. The Confederation

was a government without a capitol, or a seat; a want which seriously

impaired its dignity and its efficiency, and subjected it to great

inconveniences; at the same time, it was unable to supply the defect.

Its Congress, following the example of their predecessors, had

continued to assemble at Philadelphia, until June, 1783; when, as we

have already seen, in consequence of a mutiny by some of the federal

troops stationed in that neighborhood, against which the local

authorities failed to protect them, they left that city, and

reassembled at Princeton, in the State of New Jersey, in the halls of

a college.[200] There, in the following October, a resolution was

passed, directing that buildings for the use of Congress should be

erected at some suitable place near the falls of the Delaware; for

which the right of soil and an exclusive jurisdiction should be

obtained.[201] But this was entirely unsatisfactory to the Southern

States. They complained that the place selected was not central, was

unfavorable to the Union, and unjust to them. They endeavored to

procure a reconsideration of the vote, but without success.[202]

Several days were then consumed in fruitless efforts to agree on a

temporary residence; and at length it became apparent that there was

no prospect of a general assent to any one place, either for a

temporary or for a permanent seat. The plan of a single residence was

then changed, and a resolution was passed, providing for an alternate

residence at two places, by directing that buildings for the use of

Congress, and a federal town, should also be erected at or near the

lower falls of the Potomac, or Georgetown; and that until both places,

that on the Delaware and that on the Potomac, were ready for their

reception, Congress should sit alternately, for equal periods of not

more than one year and not less than six months, at Trenton, the

capital of the State of New Jersey, and at Annapolis, the capital of

the State of Maryland. The President was thereupon directed to adjourn

the Congress, on the 12th of the following November, to meet at

Annapolis on the 26th, for the despatch of business. Thither they

accordingly repaired, and there they continued to sit until June 3,

1784. A recess followed, during which a committee of the States sat,

until Congress reassembled at Trenton, on the 30th of the following

October.

At Trenton, the accommodations appear to have been altogether

insufficient, and the States of South Carolina and Pennsylvania proposed

to adjourn from that place.[203] The plan of two capitols in different

places was then rescinded,[204] and an ordinance was passed, for the

appointment of commissioners to establish a seat of government on the

banks of the Delaware, at some point within eight miles above or below

the lower falls of that river. Until the necessary buildings should be

ready for their reception, the ordinance provided that Congress should

sit at the city of New York.[205] When assembled there in January, 1785,

they received and accepted from the corporation an offer of the use of

the City Hall; and in that building they continued to hold their

sessions until after the adoption of the Constitution.[206]

It does not appear that any steps were taken under the ordinance of

1784, or under any of the previous resolutions, for the establishment

of a federal town and a seat of government at any of the places

designated. Whether the Congress felt the want of constitutional power

to carry out their project, or whether the want of means, or a

difficulty in obtaining a suitable grant of the soil and jurisdiction,

was the real impediment, there are now no means of determining. It

seems quite probable, however, that, after their removal to the city

of New York, they found themselves much better placed than they or

their predecessors had ever been elsewhere; and as the discussions

respecting a total revision of the federal system soon afterwards

began to agitate the public mind, the plan of establishing a seat for

the accommodation of the old government was naturally postponed.

The plan itself, on paper, was a bold and magnificent one. It

contemplated a district not less than two and not more than three

miles square, with a "federal house" for the use of Congress; suitable

buildings for the executive departments; official residences for the

president and secretary of Congress, and the secretaries of foreign

affairs, of war, of the marine, and the officers of the treasury;

besides hotels to be erected and owned by the States as residences for

their delegates. But, for this fine scheme of a federal metropolis, an

appropriation was made, which, even in those days, one might suppose,

would scarcely have paid for the land required. The commissioners who

were to purchase the site, lay out the town, and contract for the

erection and completion of all the public edifices,--excepting those

which were to belong to the States,--"in an elegant manner," were

authorized to draw on the federal treasury for a sum not exceeding one

hundred thousand dollars, for the whole of these purposes. If we are

to understand it to have been really expected and intended that this

sum should defray the cost of this undertaking, we must either be

amused by the modest requirements of the Union at that day, or stand

amazed at the strides it has since taken in its onward career of

prosperity and power. From the porticos of that magnificent Capitol

whose domes overhang the Potomac, the eye now looks down upon a city,

in which, at a cost of many millions, provision has been made for the

central functions of a government, whose daily expenditure exceeds the

entire sum appropriated for the establishment of the necessary public

buildings and official residences seventy years ago.

In truth, however, there is not much reason to suppose that the

Congress of the Confederation seriously contemplated the establishment

of a federal city. They were too feeble for such an undertaking. They

could pass resolutions and ordinances for the purpose, and send them

to the authorities of the States;--and if a more decent attention to

the wants and dignity of the federal body was excited, it was well,

and was probably the effect principally intended. If they had actually

proceeded to do what their resolution of 1783 proposed,--to acquire

the jurisdiction, as well as the right of soil, over a tract of

land,--they must have encountered a serious obstacle in the want of

constitutional power. This difficulty seems to have been felt at a

later period; for the ordinance of 1784 only directs a purchase of the

land, and is silent upon the subject of municipal jurisdiction. It is

fortunate, too, on all accounts, that the design was never executed,

if it was seriously entertained. The presence of Congress in the city

of New York, where the legislature of the State was also sitting, in

the winter of 1787, enabled Hamilton to carry those measures in both

bodies, which led immediately to the summoning of the national

Convention.[207] And it was especially fortunate that this whole

subject came before the Convention unembarrassed with a previous

choice of place by the old Congress, or with any steps concerning

municipal jurisdiction which they might have taken, or omitted.

For it was no easy matter, in the temper of the public mind existing

from 1783 to 1788, to determine where the seat of the federal, or that

of the national government, ought to be placed. The Convention found

this an unsettled question, and they wisely determined to leave it so.

The cities of New York and Philadelphia had wishes and expectations,

and it was quite expedient that the Constitution should neither decide

between them, nor decide against both of them. It was equally

important that it should not direct whether the seat of the national

government should be placed at any of the other commercial cities, or

at the capital or within the jurisdiction of any State, or in a

district to be exclusively under the jurisdiction of the United

States. These were grave questions, which involved the general

interests of the Union; but however settled, they would cost the

Constitution, in some quarter or other, a great deal of the support

that it required, if determined before it went into operation.[208]

Temporarily, however, the new government must be placed somewhere

within the limits of a State, and at one of the principal cities; and

as the Congress then sitting at New York would probably invite their

successors to assemble there, it became necessary to provide for a

future removal, when the time should arrive for a general agreement on

the various and delicate questions involved. The difference of

structure, however, between the two branches of the proposed Congress,

and the difference of interests that might predominate in each, made a

disagreement on these questions probable, if not inevitable; and a

disagreement on the place of their future sessions, if accompanied by

power to sit in separate places, would be fatal to the peace of the

Union and the operation of the government.

The committee of detail, therefore, inserted in their draft a clause

prohibiting either house, without the consent of the other, from

adjourning for more than three days, or to any other place than that

at which the Congress might be sitting. Mr. King expressed an

apprehension that this implied an authority in both houses to adjourn

to any place; and as a frequent change of place had dishonored the

federal government, he thought that a law, at least, should be made

necessary for a removal. Mr. Madison considered a central position

would be so necessary, and that it would be so strongly demanded by

the House of Representatives, that a removal from the place of their

first session would be extorted, even if a law were required for it.

But there was a fear that, if the government were once established at

the city of New York, it would never be removed if a law were made

necessary. The provision reported by the committee was therefore

retained, and it was left in the power of the two houses alone, during

a session of Congress, to adjourn to any place, or to any time, on

which they might agree.[209]

Still it was needful that the Constitution should empower the

legislature to establish a seat of government out of the jurisdiction

of any of the States, and away from any of their cities. The time

might come when this question could be satisfactorily met. The time

would certainly come, when the people of the whole Union could see

that the dignity, the independence, and the purity of the government

would require that it should be under no local influences; when every

citizen of the United States, called to take part in the functions of

that government, ought to be able to feel that he and his would owe

their protection to no power, save that of the Union itself. Some

disadvantage, doubtless, might be experienced, in placing the

government away from the great centres of commerce. But neither of the

principal seats of wealth and refinement was very near to the centre

of the Union; and if either of them had been, the necessity for an

exclusive local jurisdiction would probably be found, after the

adoption of the Constitution, to outweigh all other considerations.

Accordingly, when the Constitution was revised for the purpose of

supplying the needful provisions omitted in its preparation, it was

determined that no peremptory direction on the subject of a seat of

government should be given to the legislature; but that power should

be conferred on Congress to exercise an exclusive legislation, in all

cases, over such district, not exceeding ten miles square, as might,

by cession of particular States and the acceptance of Congress, become

the seat of government of the United States. This provision has made

the Congress of the United States the exclusive sovereign of the

District of Columbia, which it governs in its capacity of the

legislature of the Union. It enabled Washington to found the city

which bears his name; towards which, whatever may be the claims of

local attachment, every American who can discern the connection

between the honor, the renown, and the welfare of his country, and the

dignity, convenience, and safety of its government, must turn with

affection and pride.

With respect to a regular time of meeting, no instructions had been

given to the committee of detail; but they inserted in their draft of

the Constitution a clause which required the legislature to assemble

on the first Monday of December in every year. There was, however, a

great difference of opinion as to the expediency of designating any

time in the Constitution, and as to the particular period adopted in

the report. But as it was generally agreed that Congress ought to

assemble annually, the provision which now stands in the Constitution,

which requires annual sessions, and establishes the first Monday in

December as the time of their commencement, unless a different day

shall be appointed by law, was adopted as a compromise of different

views.[210]

FOOTNOTES:

[130] The first draft of the Constitution, reported by the committee

of detail, will be found in the Appendix.

[131] A general instruction had been given to report "certain

qualifications of property and citizenship," for the executive, the

judiciary, and the members of both houses of Congress.

[132] It is only necessary to mention the names of Hamilton, Wilson,

Robert Morris, and Fitzsimmons, to show the entire impracticability of

a rule that would have excluded all persons of _foreign birth_ from

being electors, or from being elected to office.

[133] I have called the naturalization power a _practical_ control

upon the States in the matter of suffrage. It is indirect, but it is

effectual; for I believe that no State has ever gone so far as, by

express statutory or constitutional provision, to admit to the right

of voting persons of foreign birth who are not naturalized citizens of

the United States.

[134] Art. VI. Sect. 2 of the reported draft.

[135] Art. IV. Sect. 2 of the reported draft.

[136] New Hampshire, Massachusetts, and Georgia alone voted to retain

it. Elliot, V. 404.

[137] The Constitution of Pennsylvania had given to foreigners, after

two years' residence, all the rights of citizens. There were similar

provisions in nearly all of the States.

[138] The members who advocated the exemption were G. Morris, Mercer,

Gorham, Madison, and Wilson; those who opposed it were Rutledge,

Sherman, General Pinckney, Mason, and Baldwin. The States voting for

it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5;

the States voting against it were New Hampshire, Massachusetts,

Delaware, North Carolina, South Carolina, Georgia, 6. The question

elicited a good deal of feeling, and was debated with some warmth.

[139] _Ante_, Chap. VII.

[140] See _ante_, Chap. VIII.

[141] See _post_, as to the compromise on this subject.

[142] September 8.

[143] Elliot, V. 530.

[144] By a majority of one State. Ibid.

[145] That is to say, Congress were authorized to apportion one

representative to thirty thousand inhabitants, but not to exceed that

number. Constitution, Art. I. § 2.

[146] Let the reader consult Mr. Hallam's acute and learned discussion

of this exclusive privilege of the House of Commons, (Const. Hist.,

III. 37-46,) and he will probably be satisfied, that, whatever

theoretical reasons different writers may have assigned for it, its

origin is so obscure, and its precise limits and purposes, deduced

from the precedents, are so uncertain, that it can now be said to rest

on no positive principles. Its basis is custom; which, having no

definite beginning, is now necessarily immemorial. It would not be

quite safe, therefore, to reason upon the well-defined provision of

our Constitution, as if there were a close analogy between the

situation of the two houses of Congress and the two branches of the

British legislature. The English example certainly had an influence,

in suggesting the plan of such a restriction; but care must be taken

not to overlook the peculiar arrangements which made it so highly

expedient, that it may be said to have been a necessity, even if there

had been no British example.

[147] C. Pinckney. Elliot, V. 189. June 13.

[148] On the question for restraining the Senate from originating

money bills, New York, Delaware, Virginia, _ay_, 3; Massachusetts,

Connecticut, New Jersey, Maryland, North Carolina, South Carolina,

Georgia, _no_, 7. Ibid.

[149] Elliot, V. 285. _Ante_, Chap. VIII.

[150] August 8. For striking out, New Jersey, Pennsylvania, Delaware,

Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hampshire,

Massachusetts, Connecticut, North Carolina, _no_, 4.

[151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V.

395-397.) It would be endless to cite the observations of different

members, to show the purposes which they entertained. The reader, who

desires to test the accuracy of my inferences in any of these

descriptions, must study the debates, and compare, as I have done, the

different _phases_ which the subject assumed from time to time.

[152] Moved by Randolph, August 13. Elliot, V. 414.

[153] Ibid. 420.

[154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought

forward as an amendment to the article (Art. VI. § 12) which was to

define the powers of the two houses.

[155] August 31. Elliot, V. 503.

[156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from

this committee, was confined to "bills for raising revenue"; and these

were made subject to "alterations and amendments by the Senate."

[157] Ibid. 519.

[158] The history of this provision shows clearly that a bill for

appropriating money may originate in the Senate.

[159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut,

Pennsylvania, and Maryland voted in the negative, and the vote of

North Carolina was divided.

[160] May 31. Elliot, V. 133.

[161] Dickinson, Gerry, Mason.

[162] Sherman, Luther Martin, Ellsworth. On the naked proposition,

moved by Ellsworth, July 2, to allow each State one vote in the

Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_,

5; Massachusetts, Pennsylvania, Virginia, North Carolina, South

Carolina, _no_, 5; Georgia divided.

[163] Maryland alone voted against it.

[164] This suggestion was made by Hamilton. Elliot, V. 517.

[165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June

26.

[166] Ibid.

[167] In Horace Walpole's Memoirs of the Reign of George II., there is

an amusing parallel--gravely drawn, however--between the mode in which

his father, Sir Robert, "traded for members," and the manner in which

Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir

Robert Walpole "the patron and parent of parliamentary corruption."

(Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say

that it originated under Charles II., and both admit that it was

practised down to the close of the American war. (Hallam's Const.

Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III.

541-549.) The latter, in a very masterly analysis of its origin and

history, treats it as a local disease, incident to the growth of the

English constitution. It must be confessed, that it had become

_chronic_.

[168] I am quite aware of the danger of reasoning from the

circumstances of one country to those of another, even in the case of

England and the United States. But I avail myself, in support of the

text, of the authority of a writer, whose high moral tone, and whose

profound knowledge of the constitution on which he has written, unite

to make it unnecessary that its history should be written again;--I

mean, of course, Mr. Hallam. He pronounces it an extreme supposition,

and not to be pretended, that Parliament was ever "absolutely, and in

all conceivable circumstances, under the control of the sovereign,

whether through intimidation or corrupt subservience." "But," he adds,

"as it would equally contradict notorious truth to assert that every

vote has been disinterested and independent, _the degree of influence

which ought to be permitted_, or which has at any time existed,

_becomes one of the most important subjects in our constitutional

policy_." (Const. Hist., III. 351.)

[169] The position and functions of the judiciary, after proper

measures have been taken to secure individual capacity and integrity,

do admit and require what may be called absolute confidence. That is

to say, their action is not only final and conclusive, but it is never

legitimately open to the influence of any other department. The reason

is, that their action does not proceed from individual discretion, but

is regulated by the principles of a moral science, whose existence is

wholly independent of the will of the particular judge. Whereas the

action of both the executive and the legislative departments, within

the limits prescribed to it by the fundamental law, involves the

exercise, to a wide extent, of mere individual discretion. The remedy

for a failure in the judge to justify the confidence reposed in him

is, therefore, only by impeachment.

[170] The legislature of Massachusetts had, before Congress

recommended the national Convention, instructed its delegates in

Congress not to agree to any modification of the fifth Article of the

Confederation, which prohibited the members of Congress from _holding_

any office under the United States, for which they or any other person

for their benefit could receive any salary, fee, or emolument. This

instruction was repealed, by the unqualified manner in which the State

accepted the recommendation for a national Convention. But it shows

the sentiment of the State on this point, and it also shows the

jealousy that was felt.

[171] See the assertion by Mr. Mason, and the admission by Mr.

Madison, Elliot, V. 230, 232.

[172] Butler, Mason, and Rutledge.

[173] Two States only, Connecticut and New Jersey, voted for Madison's

amendment. June 23. Elliot, V. 230-233.

[174] The disqualification, as applied to members of both houses, was

incorporated into one clause. Art. VI. § 9 of the draft of the

committee of detail. Elliot, V. 377.

[175] See the debate, August 14. Elliot, V. 420-425.

[176] There was a majority of only one State in favor of this

principle. Elliot, V. 506.

[177] This provision received a unanimous vote. Ibid.

[178] For the history of what have been called place-bills, see

Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339,

341, 342, 479, 480, 528.

[179] Mr. Justice Story has suggested, that, "if it would not have

been safe to trust the heads of departments, as representatives, to

the choice of the people, as their constituents, it would have been at

least some gain to have allowed them a seat, like territorial

delegates, in the House of Representatives, where they might freely

debate without a title to vote." (Commentaries on the Constitution, I.

§ 869.) An officer of an executive department, thus admitted to a seat

in Congress, must have been placed there merely in virtue of his

office, by a special provision. He could have represented no real

constituency, and must therefore have had an anomalous position. A

territorial delegate is admitted as the representative of a

dependency, somewhat colonial in its nature, whose inhabitants are not

on an equal footing with the constituencies of the States. He has

therefore no vote. When speaking for the interests of those whom he

represents, he is in somewhat the same attitude as counsel admitted to

be heard at the bar of the House. Whether the head of an executive

department could with dignity and convenience be placed in a similar

position, admits at least of grave doubt.

[180] Art. I. § 4 of the Constitution.

[181] Art. VI. § 1 of the first draft.

[182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309.

[183] Elliot, V. 402.

[184] Elliot, V. 247.

[185] Art. VI. § 10 of the first draft. Elliot, V. 378.

[186] Massachusetts and South Carolina in the negative.

[187] See the discussion on Art. VI. § 10 of the first draft. Elliot,

V. 425-427.

[188] Pennsylvania and Virginia.

[189] See Elliot, V. 507, 528, 529.

[190] As to the other provisions of the Constitution on this subject,

see the Index, _verb._ Impeachment.

[191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution.

[192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6.

[193] Elliot, V. 407. Constitution, Art. I. § 5.

[194] Elliot, V. 407. Constitution, Art. I. § 5.

[195] Elliot, V. 507, 520. Constitution, Art. I. § 3.

[196] Ibid.

[197] Art. I. § 2.

[198] Constitution, Art. I. § 7.

[199] A question has been made, whether it is competent to two thirds

of the members _present_ in each house to pass a bill notwithstanding

the President's objections, or whether the Constitution means that it

shall be passed by two thirds of all the members of each branch of the

legislature. The history of the "veto" in the Convention seems to me

to settle this question. There was a change of phraseology, in the

course of the proceedings on this subject, which indicates very

clearly a change of intention. The language employed in the

resolutions, in all the stages through which they passed, was, that

"The national executive shall have a right to negative any legislative

act, which shall not be afterwards passed by _two third parts of each

branch of the national legislature_." This was the form of expression

contained in the resolutions sent to the committee of detail; and if

it had been incorporated into the Constitution, there could have been

no question but that its meaning would have been, that the bill must

be afterwards passed by two thirds of all the members to which each

branch is constitutionally entitled. But the committee of detail

changed this expression, and employed one which has a technical

meaning, that meaning being made technical by the Constitution itself.

Before the committee came to carry out the resolution relating to the

President's negative, they had occasion to define what should

constitute a "_house_" in each branch of the legislature; and they did

so by the provision that a majority of each _house_ shall constitute a

quorum to do business. This expression, a "house," or "each house," is

several times employed in the Constitution, with reference to the

faculties and powers of the two chambers respectively, and it always

means, when so used, the constitutional quorum, assembled for the

transaction of business, and capable of transacting business. This

same expression was employed by the committee when they provided for

the mode in which a bill, once rejected by the President, should be

again brought before the legislative bodies. They directed it to be

returned "_to that_ HOUSE _in which it shall have originated_,"--that

is to say, to a constitutional quorum, a majority of which passed it

in the first instance; and they then provided, that, if "_two thirds_

of that HOUSE shall agree to pass the bill, it shall be sent, together

with the objections, to the other HOUSE,... and if approved by _two

thirds_ of that HOUSE, it shall become a law." This change of

phraseology, taken in connection with the obvious meaning of the term

"house," as used in the Constitution when it speaks of a chamber

competent to do business, shows the intention very clearly. It is a

very different provision from what would have existed, if the phrase

"two third parts of each branch of the national legislature" had been

retained. (See Elliot, V. 349, 376, 378, 431 536.)

This view will be sustained by an examination of all the instances in

which the votes of "two thirds" in either body are required. Thus,

"each house may determine the rules of its proceedings, punish its

members for disorderly behavior, and, _with the concurrence of two

thirds_, expel a member." (Art. I. § 5.) The context of the same

article defines what is to constitute a "house," and makes it clear

that two thirds of a "house" may expel. That this was the intention is

also clear from what took place in the Convention. Mr. Madison

objected to the provision as it stood on the report of the committee,

by which a mere _majority_ of a quorum was empowered to expel, and, on

his motion, the words "with the concurrence of two thirds" were

inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of

the Constitution empowers Congress, "_whenever two thirds of both_

HOUSES _shall deem it necessary_," to propose amendments to the

Constitution. The term "house" is here used as synonymous with a

quorum.

It has been suggested, however, that the use of a positive expression,

in relation to the action of the Senate upon treaties, throws some

doubt upon the meaning of the term "two thirds," as used in other

parts of the Constitution. A treaty requires the concurrence of "two

thirds of the senators _present_"; and it has been argued that the

omission of this term in the other cases shows that two thirds of all

the members are required in those cases. But it is to be remembered,

that the Constitution makes a general provision as to what shall

constitute a house for the transaction of business; that when it means

that a particular function shall not be performed by such a house, or

quorum, it establishes the exception by a particular provision, as

when it requires two thirds of all the States to be present in the

House of Representatives on the choice of a President, and makes a

majority of all the States necessary to a choice; and that whether the

function of the Senate in approving treaties is or is not a part of

the business which under the general provision is required to be done

in a "house" or quorum consisting of a majority of all the members,

the Constitution does not speak of this function as being done by a

"house," but it speaks of the "advice and consent of the _Senate_," to

be given "by two thirds of the senators _present_." The use of the

term "present" was necessary, therefore, in this connection, because

no term had preceded it which would guide the construction to the

conclusion intended; but in the other cases, the previous use of the

term "house," defined to be a majority of all the members, determines

the sense in which the term "two thirds" is to be understood, and

makes it, as I humbly conceive, two thirds of a constitutional quorum.

[200] _Ante_, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Passed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor

of the city that repairs were to be made.

[207] See _ante_, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See _post_, as to the power of the

President to assemble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (§ 829), that

this clause came into the Constitution in the _revised_ draft, near

the close of the Convention, and was silently adopted, without

opposition. This is a mistake. The clause was contained in the draft

of the committee of detail, and was modified as stated in the text, on

the 7th of August, after a full debate. Elliot, V. 377, 383-385.

CHAPTER X

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE POWERS OF

CONGRESS.--THE GRAND COMPROMISES OF THE CONSTITUTION RESPECTING

COMMERCE, EXPORTS, AND THE SLAVE-TRADE.

In the examination which has thus far been made of the process of

forming the Constitution, the reader will have noticed the absence of

any express provisions concerning the regulation of commerce, and the

obtaining of revenues. A system of government had been framed,

embracing a national legislature, in which the mode of representation

alone had been determined with precision. The powers of this

legislature had been described only in very general terms. It was to

have "the legislative rights vested in Congress by the Confederation,"

and the power "to legislate in all cases for the general interests of

the Union, and also in those to which the States were separately

incompetent, or in which the harmony of the United States may be

interrupted by the exercise of individual legislation."

It might undoubtedly have been considered that, as the want of a power

in the Confederation to make uniform commercial regulations affecting

the foreign and domestic relations of the States was one of the

principal causes of the assembling of this Convention, such a power

was implied in the terms of the resolution, which had declared the

general principles on which the authority of the national legislature

ought to be regulated. Still, it remained to be determined what kind

of regulation of commerce was required by "the general interests of

the Union," or how far the States were incompetent, by their separate

legislation, to deal with the interests of commerce so as to promote

"the harmony of the United States." In the same way, a power to obtain

revenues might be implied on the same general principles. But whether

the commercial power foreshadowed in these broad declarations was to

be limited or unlimited; whether there were any special objects or

interests to which it was not to extend; and whether the revenues of

the government were to be derived from imposts laid at pleasure upon

imports or exports, or both; whether they might be derived from

excises on the manufactures or produce of the country; whether its

power of direct taxation was to be exercised under further limitations

than those already agreed upon for the apportionment of direct taxes

among the States;--all these details were as yet entirely unsettled.

Two subjects, one of which might fall within a general commercial

power, and the other within a general power to raise revenues, had

already been incidentally alluded to, and both were likely to create

great embarrassment. General Pinckney had twice given notice that

South Carolina could not accede to the new Union proposed, if it

possessed a power to tax exports.[211] It had also become apparent, in

the discussions and arrangements respecting the apportionment of

representatives, that the possible encouragement of the slave-trade,

which might follow an admission of the blacks into the rule of

representation, was one great obstacle, in the view of the Northern

States, to such an admission; and at the same time, that it was very

doubtful whether all the Southern States would surrender to the

general government the power to prohibit that trade.[212] The

compromise which had already taken place on the subject of

representation had settled the principles on which that difficult

matter was to be arranged. But the power to increase the slave

populations by continued importation had not been agreed to be

surrendered; and unless some satisfactory and reasonable adjustment

could be made on this subject, there could be no probability that the

Constitution would be finally ratified by the people of the Northern

States.[213] It is necessary, therefore, to look carefully at these

two subjects, namely, the taxation of exports and the prohibition of

the slave-trade.

That a power to lay taxes or duties on exported products belongs to

every government possessing a general authority to select the objects

from which its revenues are to be derived, is a proposition which

admits of little doubt. It is not to be doubted, either, that it is a

power which may be attended with great benefit, not only for purposes

of revenue, but for the encouragement of manufactures; and it is clear

that it may often be used as a means of controlling the commercial

policy of other countries, when applied to articles which they cannot

produce, but which they must consume. A government that is destitute

of this power is not armed with the most complete and effectual means

for counteracting the regulations of foreign countries that bear

heavily upon the industrial pursuits of its people, although it may

have other and sufficient sources of revenue; and therefore, until an

unrestricted commercial intercourse and a free exchange of commodities

become the general policy of the world, to deny to any government a

power over the exported products of its own country, is to place it at

some disadvantage with all commercial nations that possess the power

to enhance the price of commodities which they themselves produce.

But, on the other hand, the practice of taxing the products of a

country, as they pass out of its limits to enter into the consumption

of other nations, can be beneficially exercised only by a government

that can select and arrange the objects of such taxation so as to do

nearly equal justice to all its producing interests. If, for example,

the article of wine were produced only by a single province of France,

and all the other provinces produced no commodities sought for by

other nations, an export duty upon wine would fall wholly upon the

single province where it was produced, and would place its production

at an unequal competition with the wines of other countries. But

France produces a variety of wines, the growth of many different

provinces; and therefore, in the adjustment of an export duty upon

wines, the government of that country, after a due regard to the

demand for each kind or class of this commodity, has chiefly to

consider the effect of such a tax in the competition with the same

commodity produced by other nations.

At the time of the formation of the Constitution of the United States,

there was not a single production, common to all the States, of

sufficient importance to become an article of general exportation.

Indeed, there were no commodities produced for exportation by so many

of the States, that a tax or duty imposed upon them on leaving the

country would operate with anything like equality even in different

sections of the Union. In fact, from the extreme northern to the

extreme southern boundary of the Union, the exports were so various,

both in kind and amount, that a tax imposed on an article the produce

of the South could not be balanced by a tax imposed upon an article

produced or manufactured at the North. How, for example, could the

burden of an export duty on the tobacco of Virginia, or the rice or

indigo of South Carolina, be equalized by a similar duty on the lumber

or fish or flour of other States? Possibly, after long experience and

the accumulation of the necessary statistics, an approach towards an

equality of such burdens might have been made; but it could never have

become more than an unsatisfactory approximation; and while the effect

of such a tax at one end of the Union on the demand for the commodity

subjected to it might be estimated,--because the opportunity for other

nations to supply themselves elsewhere might be so precise as to be

easily measured,--its effect at the other end of the Union, on another

commodity, might be wholly uncertain, because the demand from abroad

might be influenced by new sources of supply, or might from accidental

causes continue to be nearly the same as before.

However theoretically correct it might have been, therefore, to confer

on the general government the same authority to tax exports as to

impose duties on imported commodities,--and the argument for it drawn

from the necessities for revenue and protection of manufactures was

exceedingly strong,--the actual situation of the country made it quite

impracticable to obtain the consent of some of the States to a full

and complete revenue power. Several of the most important persons in

the Convention were strongly in favor of it. Washington, Madison,

Wilson, Gouverneur Morris, and Dickinson are known to have held the

opinion, that the government would be incomplete, without a power to

tax exports as well as imports. But the decided stand taken by South

Carolina, whose exports for a single year were said by General

Pinckney to have amounted to £600,000, the fruit of the labor of her

slaves, probably led the committee of detail to insert in their report

of a draft of the Constitution a distinct prohibition against laying

any tax or duty on articles exported from any State.

A similar question, in relation to the extent of the commercial power,

was destined to arise out of the relations of the different States to

the slave-trade. If the power to regulate commerce, that might be

conferred upon the general government, was to be universal and

unlimited, it must include the right to prohibit the importation of

slaves. If the right to sanction or tolerate the importation of

slaves, which, like all other political rights, belonged to the people

of the several States as sovereign communities, was to be retained by

them as an exception from the commercial power which they might confer

upon the national legislature, that exception must be clearly and

definitely established. For several reasons, the question was

necessarily to be met, as soon as the character and extent of the

commercial power should come into discussion. While the trade had been

prohibited by all the other States, including Virginia and Maryland,

it had only been subjected to a duty by North Carolina, and was

subjected to a similar discouragement by South Carolina and Georgia.

The basis of representation in the national legislature, in which it

had been agreed that the slaves should be included in a certain ratio,

created a strong political motive with the Northern States to obtain

for the general government a power to prevent further importations. It

was fortunate that this motive existed; for the honor and reputation

of the country were concerned to put an end to this traffic. No other

nation, it was true, had at that time abolished it; but here were the

assembled States of America, engaged in framing a Constitution of

government, that ought, if the American character was to be consistent

with the principles of the American Revolution, to go as far in the

recognition of human rights as the circumstances of their actual

situation would admit. What was practicable to be done, from

considerations of humanity, and all that could be successfully done,

was the measure of their duty as statesmen, admitted and acted upon by

the framers of the Constitution, including many of those who

represented slaveholding constituencies, as well as the

representatives of States that had either abolished both the traffic

in slaves and the institution itself, or were obviously destined to do

it.

This just and necessary rule of action, however, which limited their

efforts to what the actual circumstances of the country would permit,

made a clear distinction between a prohibition of the future

importation of slaves, and the manumission of those already in the

country. The former could be accomplished, if the consent of the

people of the States could be obtained, without trenching on their

sovereign control over the condition of all persons within their

respective limits. It involved only the surrender of a right to add to

the numbers of their slaves by continued importations. But the power

to determine whether the slaves then within their limits should remain

in that condition, could not be surrendered by the people of the

States, without overturning every principle on which the system of the

new government had been rested, and which had thus far been justly

regarded as essential to its establishment and to its future

successful operation.

It is not, therefore, to be inferred, because a large majority of the

Convention sought for a power to prohibit the increase of slaves by

further importation, that they intended by means of it to extinguish

the institution of slavery within the States. So far as they acted

from a political motive, they designed to take away the power of a

State to increase its congressional representation by bringing slaves

from Africa; and so far as they acted from motives of general justice

and humanity, they designed to terminate a traffic which never has

been and never can be carried on without infinite cruelty and national

dishonor. That the individuals of an inferior race already placed in

the condition of servitude to a superior one may, by the force of

necessity, be rightfully left in the care and dominion of those on

whom they have been cast, is a proposition of morals entirely fit to

be admitted by a Christian statesman. That new individuals may

rightfully be placed in the same condition, not by the act of

Providence through the natural increase of the species, but by the act

of man in transferring them from distant lands, is quite another

proposition. The distinction between the two, so far as a moral

judgment is concerned with the acts of the framers of the Constitution

upon the circumstances before them, defines the limits of duty which

they intended to recognize.

No satisfactory means exist for determining to what extent a

continuance of the importation of slaves was necessary, in an

economical point of view, to the States of North Carolina, South

Carolina, and Georgia. There is some reason to suppose that the

natural increase of the slave population in Virginia at that period

more than supplied her wants; and perhaps the less healthy regions of

the more southern States may have still required foreign supplies in

order to keep the lands already occupied under cultivation, or to make

new lands productive.[214] All that is historically certain on this

subject is, that the representatives of the three most southerly

States acted upon the belief, that their constituents would not

surrender the right to continue the importation of slaves, although

they might, if left to themselves, discontinue the practice at some

future time.

These declarations, however, had not been made at the time when the

principles on which the Constitution was to be framed were sent to the

committee of detail. Nothing had yet occurred in the Convention, to

make it certain that the power to import would be retained by any of

the States. The committee of detail had, therefore, so far as the

action of the Convention had gone, an unrestricted choice between a

full and a limited commercial power. They consisted of three members

from non-slaveholding and two from slaveholding States;[215] but as

one of them, Mr. Rutledge of South Carolina, was one of the persons

who subsequently announced to the Convention the position that would

be taken by his own State and by North Carolina and Georgia, there can

be no doubt that he announced the same determination in the committee.

In their report, they shaped the commercial power accordingly. They

provided that the legislature of the United States should have power

to lay and collect taxes, duties, imposts, and excises; and to

regulate commerce with foreign nations, and among the several States.

But they also reported several restrictions upon both the revenue and

commercial powers. Besides providing, in accordance with the ninth

resolution adopted by the Convention, that direct taxation should be

proportioned among the States according to the census, to be taken by

a particular rule, they added the further restrictions, that no tax or

duty should be laid by the national legislature on articles exported

from any State, nor on the migration or importation of such persons as

the several States might think proper to admit; that such migration or

importation should not be prohibited; that no capitation tax should be

laid, unless in proportion to the census; and that no navigation act

should be passed without the assent of two thirds of the members

present in each house.

That the new government must have a direct revenue power, was

generally conceded, and it was also generally admitted that it must

have a power to regulate commerce with foreign countries. But the idea

was more or less prevalent among the Southern statesmen, that the

interest of their own States, considered as a distinct and separate

interest from that of the commercial States, did not require a

regulation of commerce by the general government. It is not easy to

determine to what extent these views were correct. Taking into

consideration nothing more than the fact, that the staple production

of Virginia was tobacco, as it was also partly that of North Carolina;

that rice and indigo were the great products of South Carolina and

Georgia; and that neither of these four States possessed a large

amount of shipping;--it might certainly be considered that an

unrestricted foreign intercourse was important to them.

But, on the other hand, if those States, by clothing the Union with a

power to regulate commerce, were likely to subject themselves to a

temporary rise of freights, the measures which might have that effect

would also tend directly to increase Southern as well as Northern

shipping, to augment the commercial marine of the whole country, and

thus to increase its general maritime strength. The general security

thus promoted was as important to one class of States as to another.

The increase of the coasting trade would also increase the consumption

of the produce of all the States. The great benefit, however, to be

derived from a national regulation of commerce,--a benefit in which

all the States would equally share, whatever might be their

productions,--was undoubtedly the removal of the existing and

injurious retaliations which the States had hitherto practised against

each other.[216]

Still, these advantages were indirect or incidental. The immediate and

palpable commercial interests of different portions of the Union,

regarded in the mass, were not identical; and it was in one sense

true, that the power of regulating commerce was a concession on the

part of the Southern States to the Northern, for which they might

reasonably expect equivalent advantages, or which they might

reasonably desire to qualify by some restriction.

On the reception of the report of the committee of detail, and when

the article relating to representation was reached, the consequences

of agreeing that the slaves should be computed in the rule, taken in

connection with an unrestrained power in the States to increase the

slave populations by further importation, and with the exemption of

exports from taxation, became more prominent, and more likely to

produce serious dissatisfaction. The concession of the slave

representation had been made by some of the Northern members, in the

hope that it might be the means of strengthening the plan of

government, and of procuring for it full powers both of revenue and of

commercial regulation. But now, it appeared that, as to two very

important points, the hands of the national legislature were to be

absolutely tied. The importation of slaves could not be prohibited;

exports could not be taxed. These restrictions seemed to many to have

an inevitable tendency to defeat the great primary purposes of a

national government. All must agree, that defence against foreign

invasion and against internal sedition was one of the principal

objects for which such a government was to be established. Were all

the States then to be bound to defend each, and was each to be at

liberty to introduce a weakness which would increase both its own and

the general danger, and at the same time to withhold the compensation

for the burden? If slaves were to be imported, why should not the

exports produced by their labor supply a revenue, that would enable

the general government to defend their masters? To refuse it, was so

inequitable and unreasonable, said Rufus King, that he could not

assent to the representation of the slaves, unless exports should be

taxable;--perhaps he could not finally consent to it, under any

circumstances.[217]

Gouverneur Morris, with his accustomed ardor, went further still, and

insisted on re-opening the subject of representation, now that the

other features of the system were to be made to favor the increase of

slaves, and to throw the burdens of maintaining the government chiefly

upon the Northern States. It was idle, he declared, to say that direct

taxation might be levied upon the slaveholding States in proportion to

their representative population: for the general government could

never stretch out its hand, and put it directly into the pockets of

the people, over so vast a country. Its revenues must be derived from

exports, imports, and excises. He therefore would not consent to the

sacrifices demanded, and moved the insertion of the word "free" before

the word "inhabitants," in the article regulating the basis of

representation.[218]

But there were few men in the Convention bold enough to hazard the

consequences of unsettling an arrangement, which had cost so much

labor and anxiety; which had been made as nearly correct in theory as

the circumstances of the case would allow; and which was, in truth,

the best practical solution of a great difficulty. Mr. Morris's motion

received the vote of a single State only.[219] The great majority of

the delegations considered it wiser to go on to the discussion of the

proposed restrictions upon the revenue and commercial powers, in the

hope that each of them might be considered and acted upon with

reference to the true principles applicable to the subject, or that

the whole might be adjusted by some agreement that would not disturb

what had been settled with so much difficulty.

The great embarrassment attending the proposed restriction upon the

taxation of exports was, that, however the question might be decided,

it would probably lose for the new government the support of some

important members of the Convention. Those who regarded it as right

that the government should have a complete revenue power, contended

for the convenience with which a large staple production, in which

America was not rivalled in foreign markets, could be made the subject

of an export tax, that would in reality be paid by the foreign

consumer. On the other side, the very facility with which such objects

could be selected for taxation alarmed the States whose products

presented the best opportunity for exercising this power. They did not

deny the obvious truth, that the tax must ultimately fall on the

consumer; but they considered it enough to surrender the power of

levying duties upon imports, without giving up the control which each

State now had over its own productions.[220]

But there was also another question involved in the form in which the

proposed restriction had been presented. It prohibited the national

government from taxing exports, but imposed no restraint in this

respect upon the power of the States. If they were to retain the power

over their own exports, they would have the same right to tax the

products of other States exported through their maritime towns. This

power had been used to a great extent, and always oppressively.

Virginia had taxed the tobacco of North Carolina; Pennsylvania had

taxed the products of Maryland, of New Jersey, and of Delaware; and it

was apparent, that every State, not possessed of convenient and

accessible seaports, must hereafter submit to the same exactions, if

this power were left unrestrained. Give it to the general government,

said the advocates for a full revenue power, and the inconveniences

attending its exercise by the separate States will be avoided. But

those who were opposed to the possession of such a power by the

general government, apprehended greater oppression by a majority of

the States acting through the national legislature, than they could

suffer at the hands of individual States. The eight Northern States,

they said, had an interest different from the five Southern States,

and in one branch of the legislature the former were to have

thirty-six votes, and the latter twenty-nine.

From considerations like these, united with others which would render

it nearly impracticable to select the objects of such taxation so as

to make it operate equally, the restriction prevailed.[221] The

revenue power was thus shorn of one great branch of taxation, which,

however difficult it might be to practise it throughout such a country

as this, is part of the prerogatives of every complete government,

which was believed by many to be essential to the success of the

proposed Constitution, but which was resisted successfully by others,

as oppressive to their local and peculiar interests.

Was the commercial power to experience a like diminution from the full

proportions of a just authority over the external trade of the States?

Were the States, whose great homogeneous products, derived from the

labor of slaves, would supply no revenue to the national treasury, to

be left at liberty to import all the slaves that Africa could furnish?

Were the commercial States to see the carrying trade of the

country--embracing the very exports thus exempted from burdens of

every kind, and thus stimulated by new accessions of slaves--pass

into foreign bottoms, and be unable to protect their interests by a

majority of votes in the national legislature? Was there to be no

advantageous commercial treaty obtained from any foreign power, unless

the measures needful to compel it could gain the assent of two thirds

of Congress? Was the North to be shut out for ever from the West India

trade, and was it at the same time to see the traffic in slaves

prosecuted without restraint, and without the prospect or the hope of

a final termination?

These were grave and searching questions. The vote exempting exports

from the revenue power could not be recalled. It had passed by a

decided majority of the States; and many suffrages had been given for

the exemption, not from motives of a sectional nature, but on account

of the difficulty that must attend the exercise of the power, and from

the conviction that such taxation is incorrect in principle. So far,

therefore, the Southern States had gained all that they desired in

respect to the revenue power, and now three of them, with great

firmness, declared that the question in relation to the commercial

power was, whether they should or should not be parties to the Union.

If required to surrender their right to import slaves, North Carolina,

South Carolina, and Georgia would not accept the Constitution,

although they were willing to make slaves liable to an equal tax with

other imports.[222] It was also manifest, that the clause which

required a navigation act to be passed by two thirds of each house,

was to be insisted on by some, although not by all, of the Southern

members.