Thus was a dark and gloomy prospect a second time presented to the

framers of the Constitution. If, on the one side, there were States

feeling themselves bound as a class to insist on certain concessions,

on the other side were those by whom such concessions could not be

made. The chief motive with the Eastern, and with most of the Northern

States, in seeking a new union under a new frame of government, was a

commercial one. They had suffered so severely from the effects of the

commercial policy of England and other European nations, and from the

incapacity of Congress to control that policy, that it had become

indispensable to them to secure a national power which could dictate

the terms and vehicles of commercial intercourse with the whole

country. Cut off from the British West India trade by the English

Orders in Council, the Eastern and Middle States required other means

of counteracting those oppressive regulations than could be found in

their separate State legislation, which furnished no power whatever

for obtaining a single commercial treaty.[223] Besides these

considerations, which related to the special interests of the

commercial States, the want of a navy, which could only be built up by

measures that would encourage the growth of the mercantile marine, and

which, although needed for the protection of commerce, was also

required for the defence of the whole country, made it necessary that

the power to pass a navigation act should be burdened with no serious

restrictions.

The idea of requiring a vote of two thirds in Congress for the passage

of a navigation act, founded on the assumed diversity of Northern and

Southern, or the commercial and the planting interests, proceeded upon

the necessity for a distinct protection of the latter against the

former, by means of a special legislative check. To a certain extent,

as I have already said, these interests, when regarded in their

aggregates, offered a real diversity. But it did not follow that this

peculiar check upon the power of a majority was either a necessary or

an expedient mode of providing against oppressive legislation. In

every system of popular government, there are great disadvantages in

departing from the simple rule of a majority; and perhaps the

principle which requires the assent of more than a majority ought

never to be extended to mere matters of legislation, but should be

confined to treaty stipulations, and to those fundamental changes

which affect the nature of the government and involve the terms on

which the different portions of society are associated together.

It was undoubtedly the purpose of those who sought for this particular

restriction, to qualify the nature of the government, in its relation

to the interests of commerce. But the real question was, whether there

existed any necessary reason for placing those interests upon a

different footing from that of all other subjects of national

legislation. The operation of the old rule of the Confederation, which

required the assent of nine States in Congress to almost all the

important measures of government, many of which involved no

fundamental right of separate States, had revealed the inconveniences

of lodging in the hands of a minority the power to obstruct just and

necessary legislation. If, indeed, it was highly probable that the

power, by being left with a majority, would be abused,--if the

interests of the Eastern and Middle States were purely and wholly

commercial, and would be likely so to shape the legislation of the

country as to encourage the growth of its mercantile marine, at the

expense of other forms of industry and enterprise, and no other

suitable and efficient checks could be found,--then the restriction

proposed might be proper and necessary.

But in truth the separate interests of the Eastern and Middle States,

when closely viewed, were not in all respects the same. Connecticut

and New Jersey were agricultural States. New York and Pennsylvania,

although interested in maritime commerce, were destined to be great

producers of the most important grains. Maryland, although a

commercial, was also an agricultural State. The new States likely to

be formed in the West would be almost wholly agricultural, and would

have no more shipping than might be required to move the surplus

products of their soil upon their great inland lakes towards the

shores of the Atlantic. All these States, existing and expectant, were

interested to obtain commercial treaties with foreign countries; all

needed the benefits of uniform commercial regulations; but they were

not all equally interested in a high degree of encouragement to the

growth of American shipping, by means of a stringent navigation act,

that would bear heavily upon the Southern planter.

Not only was there a very considerable protection against the abuse of

its power by a sectional majority, in these more minute diversities of

interest, but there were also two very efficient legislative checks

upon that power already introduced into the government. If an unjust

and oppressive measure had commanded a majority in the House, it might

be defeated in the Senate, or, if that check should fail, it might be

arrested by the executive.

It had, nevertheless, been made part of the limitations upon the

commercial power, embraced in the report of the committee of detail,

that a navigation act should require a vote of two thirds of both

branches of the legislature. The vote which adopted the prohibition

against taxes on exports, taken on the 21st of August, was followed,

on that day and the next, by an excited debate on the taxation of the

slave-trade, in which the three States of Georgia, North Carolina, and

South Carolina made the limitation upon the power of the Union over

this traffic the condition of their accepting the Constitution. This

debate was closed by the proposition of Gouverneur Morris, to refer

the whole subject to a committee of one from each State, in order

that the three matters of exports, the slave-trade, and a navigation

act might form a bargain or compromise between the Northern and the

Southern States.[224] But the prohibition against taxing exports had

already been agreed to, and there remained to be committed only the

proposed restriction against taxing or prohibiting the migration or

importation of such persons as the States might see fit to admit, the

restriction which required a capitation tax to conform to the census,

and the proposed limitation upon the power to pass a navigation act.

Thus, in effect, the questions to come before this committee were,

whether the slave-trade should be excepted from both the commercial

and revenue powers of the general government, and whether the

commercial power should be subjected to a restriction which required a

vote of two thirds in dealing with the commercial interests of the

Union.

We know very little of the deliberations of this committee; but as

each State was equally represented in it, and as the position of the

different sectional objects is quite clear, we can have no difficulty

in forming an opinion as to the motives and purposes of the settlement

which resulted from their action, or in obtaining a right estimate of

the result itself.

In the first place, then, we are to remember the previous concessions

already made by the Northern States, and the advantages resulting from

them. These concessions were the representation of the slaves and the

exemption of exports from taxation. If the slaves had not been

included in the system of representation, the Northern States could

have had no political motive for acquiring the power to put an end to

the slave-trade. If the exports of their staple productions had not

been withdrawn from the revenue power, the Southern States could have

had no very strong or special motive to draw them into the new Union;

but with such an exemption, they could derive benefits from the

Constitution as great as those likely to be enjoyed by their Northern

confederates. Both parties, therefore, entered the final committee of

compromise with a strong desire to complete the Union and to establish

the new government. The Northern States wished for a full commercial

power, including the slave-trade and navigation laws, to be dependent

on the voices of a majority in Congress. The Southern States struggled

to retain the right to import slaves, and to limit the enactment of

navigation laws to a vote of two thirds. Both parties could be

gratified only by conceding some portion of their respective demands.

If the Northern States could accept a future, instead of an immediate,

prohibition of the slave-trade, they could gain ultimately a full

commercial power over all subjects, to be exercised by a national

majority. If the Southern States could confide in a national majority,

so far as to clothe them with full ultimate power to regulate

commerce, they could obtain the continuance of the slave-trade for a

limited period.

Such was in reality the adjustment made and recommended by the

committee. They proposed that the migration or importation of such

persons as the several States then existing might think proper to

admit, should not be prohibited by the national legislature before the

year 1800, but that a tax or duty might be imposed on such persons, at

a rate not exceeding the average of the duties laid on imports; that

the clause relating to a capitation tax should remain; and that the

provision requiring a navigation act to be passed by a vote of two

thirds, should be stricken out.[225]

No change was made in this arrangement, when it came before the

Convention, except to substitute the year 1808 as the period at which

the restriction on the commercial power was to terminate, and to

provide for a specific tax on the importation of slaves, not exceeding

ten dollars on each person.[226] The remaining features of this

settlement, relating to a capitation tax and a navigation act, were

sanctioned by a large majority of the States.[227]

Thus, by timely and well-considered concessions on each side, was the

slave-trade brought immediately within the revenue power of the

general government, and also, at the expiration of twenty years,

within its power to regulate commerce. By the same means, the

commercial power, without any other restriction than that relating to

the temporary toleration of the importation of slaves, was vested in

a national majority. This result at once placed the foreign

slave-trade by American vessels or citizens within the control of the

national legislature, and enabled Congress to forbid the carrying of

slaves to foreign countries; and at the end of the year 1808, it

brought the whole traffic within the reach of a national

prohibition.[228]

Too high an estimate cannot well be formed, of the importance and

value of this final settlement of conflicting sectional interests and

demands. History has to thank the patriotism and liberality of the

Northern States, for having acquired, for the government of the Union,

by reasonable concessions, the power to terminate the African

slave-trade. We know, from almost every day's experience since the

founding of the government, that individual cupidity, which knows no

geographical limits, which defies public opinion whether in the North

or in the South, required and still requires the restraint and

chastisement of national power. The separate authority of the States

would have been wholly unequal to the suppression of the slave-trade:

for even if they had all finally adopted the policy of a stringent

prohibition, without a navy, and without treaties, they could never

have contended against the bold artifice and desperate cunning of

avarice, stimulated by the enormous gains which have always been

reaped in this inhuman trade.

The just and candid voice of History has also to thank the Southern

statesmen who consented to this arrangement, for having clothed a

majority of the two houses of Congress with a full commercial power.

They felt, and truly felt, that this was a great concession. But they

looked at what they had gained. They had gained the exemption of their

staple productions from taxation as objects of foreign commerce; the

enumeration of their slaves in the basis of Congressional

representation; and the settlement of the slave-trade upon terms not

offensive to State pride. They had also gained the Union, with its

power to maintain an army and a navy,--with its power and duty to

protect them against foreign invasion and domestic insurrection, and

to secure their republican constitutions. They looked, therefore, upon

the grant of the power to regulate commerce by the ordinary modes of

legislation, in its relations to the interests of a great empire,

whose foundations ought to be laid broadly and deeply on the national

welfare.[229] They saw that the Revolution had cost the Eastern States

enormous sacrifices of commercial wealth, and that the weakness of the

Confederation had destroyed the little remnant of their trade.[230]

They saw and admitted the necessity for an unrestrained control over

the foreign commerce of the country, if it was ever to rise from the

prostrate condition in which it had been placed by foreign powers.

They acted accordingly; and by their action, they enabled the States

of North Carolina, South Carolina, and Georgia to enter the new Union

without humiliation and without loss.[231]

Thus was accomplished, so far as depended on the action of this

Convention, that memorable compromise, which gave to the Union its

control over the commercial relations of the States with foreign

nations and with each other. An event so fraught with consequences of

the utmost importance cannot be dismissed without some of the

reflections appropriate to its consideration.

Nature had marked America for a great commercial nation. The sweep of

the Atlantic coast, from the Bay of Fundy to the Gulf of Florida,

comprehending twenty degrees of latitude, broken into capacious bays

and convenient harbors, and receiving the inward flow of the sea into

great navigable rivers that stretched far into the interior, presented

an access to the ocean not surpassed by that of any large portion of

the globe. This long range of sea-coast embraced all the varieties of

climate that are found between a hard and sterile region, where summer

is but the breath of a few fervid weeks, and the ever blooming

tropics, where winter is unknown. The products of the different

regions, already entering, or fit to enter, into foreign commerce,

attested as great a variety of soils. The proximity of the country to

the West Indies, where the Eastern and the Middle States could find

the best markets for some of their most important exports, afforded

the promise of a highly lucrative trade; while the voyage to the East

Indies from any American port could be performed in as short a time as

from England or Holland or France. In the South, there were great

staples already largely demanded by the consumption of Europe. In the

North, there were fisheries of singular importance, capable of

furnishing enormous additions to the wealth of the country. Beyond the

Alleghanies, the West, with its vast internal waters and its almost

unequalled fertility, had been opened to a rapid emigration, which was

soon to lay the foundation of new States, destined to be the abodes of

millions of men.

The very variety and extent of these interests had for many years

occasioned a struggle for some mode of reconciling and harmonizing

them all. But divided into separate governments, the commercial

legislation of the States could produce nothing but the confusion and

uncertainty which retaliation necessarily engenders. Different systems

and rates of revenue were in force in seaports not a hundred miles

apart, through which the inhabitants of other jurisdictions were

obliged to draw their supplies of foreign commodities, and to export

their own productions. The paper-money systems of the several States

made the commercial value of coin quite different in different places,

and gave an entirely insecure basis to trade.

The reader, who has followed me through the preceding volume, has

seen how the people of the United States, from the earliest stages of

the Revolution, struggled to free themselves from these

embarrassments;--how they commenced with a jealous reservation of

State authority over all matters of commerce and revenue; how they

undertook to supply the necessities of a central government by

contributions which they had not the power to make good, because their

commercial condition did not admit of heavy taxation; how they

endeavored to pass from this system to a grant of temporary revenues

and temporary commercial regulation, to be vested in the federal

Union; how they found it impracticable to agree upon the principles

and details of a temporary power; how they turned to separate

commercial leagues, each with its immediate neighbors, and were

disappointed in the result or frustrated in the effort; and how at

last they came to the conception of a full and irrevocable surrender

of commercial and fiscal regulations to a central legislature, that

could grasp the interests of the whole country and combine them in one

harmonious system.

The influence of the commercial and revenue powers, thus obtained by

the general government, on the condition of this country, has far

exceeded the most sanguine hopes which the framers of the Constitution

could have indulged. No one can doubt that the people of America owe

to it both the nature and the degree of their actual prosperity;--and

as the national prosperity has given them importance in the world, it

is just and accurate to say, that commerce and its effects have

elevated republican institutions to a dignity and influence which they

have attained through no other of the forms or the spirit of society.

Let the reader consider the interests of commerce, in their widest

relations with all that they comprehend,--the interests of the

merchant, the artisan, and the tiller of the soil being alike

involved,--as the chief purpose of the new government given to this

Union; let him contemplate this as the central object around which are

arranged almost all the great provisions of the Constitution of the

United States;--and he will see in it a wonderfully harmonious and

powerful system, created for the security of property, and the

promotion of the material welfare and prosperity of individuals,

whatever their occupation, employment, or condition. That such a code

of civil government should have sprung from the necessities of

commerce, is surely one of the triumphs of modern civilization.

It is not to be denied, that the sedulous care with which this great

provision was made for the general prosperity has had the effect of

impressing on the national character a strong spirit of acquisition.

The character of a people, however, is to be judged not merely by the

pursuit or the possession of wealth, but chiefly by the use which they

make of it. If the inhabitants of the United States can justly claim

distinction for the benevolent virtues; if the wealth that is eagerly

sought and rapidly acquired is freely used for the relief of human

suffering; if learning, science, and the arts are duly cultivated; if

popular education is an object of lavish expenditure; if the

institutions of religion, though depending on a purely voluntary

support, are provided for liberally, and from conscientious

motives;--then is the national spirit of acquisition not without

fruits, of which it has no need to be ashamed.

The objection, that the Constitution of the United States, and the

immense prosperity which has flowed from it, were obtained by certain

concessions in favor of the institution of slavery, results from a

merely superficial view of the subject. If we would form a right

estimate of the gain or loss to human nature effected by any given

political arrangement, we must take into consideration the antecedent

facts, and endeavor to judge whether a better result could have been

obtained by a different mode of dealing with them. We shall then be

able to appreciate the positive good that has been gained, or the

positive loss that has been suffered.

The prominent facts to be considered in this connection are, in the

first place, that slavery existed, and would long exist, in certain of

the States; and that the condition of the African race in those States

was universally regarded as a matter of purely local concern. It could

not in fact have been otherwise; for there were slaves in every State

excepting Massachusetts and New Hampshire; and among the other States

in which measures had been, or were likely to be, taken for the

removal of slavery, there was a great variety of circumstances

affecting the time and mode in which it should be finally

extinguished. As soon as the point was settled, in the formation of

the Constitution of the United States, that the State governments were

to be preserved, with all their powers unimpaired which were not

required by the objects of the national government to be surrendered

to the Union, the domestic relations of their inhabitants with each

other necessarily remained under their exclusive control. Those

relations were not involved in the purposes of the Federal Union.

So soon, also, as this was perceived and admitted, it became a

necessary consequence of the admission, that the national authority

should guarantee to the people of each State the right to shape and

modify their own social institutions; for without this principle laid

at the foundation of the Union, there could be no peace or security

for such a mixed system of government.

In the second place, we have to consider the fact, that, among the

political rights of the States anterior to the national Constitution,

was the right to admit or to prohibit the further importation of

slaves;--a traffic not then forbidden by any European nation to its

Colonies, but which had been interdicted by ten of the American

States. The transfer of this right to the Federal Union was a purely

voluntary act; it was not strictly necessary for the purposes for

which it was proposed to establish the Constitution of the United

States; although there were political reasons for which a part of the

States might wish to acquire control over this subject, as well as

moral reasons why all the States should have desired to vest that

control in the general government. Three of the States, however, as we

have seen, took a different view of their interest and duty, and

declined to enter the new Union unless this traffic should be excepted

from the power over commerce for a period of twenty years.

It is quite plain, that, if these facts had been met and dealt with in

a manner different from the settlement that was actually made, one of

two consequences must have ensued;--either no Constitution at all

could have been adopted, or there would have been a Union of some

kind, from which three at least of the States must have been excluded.

If the first, by far the most probable contingency, had happened, a

great feebleness and poverty of society must have continued to be the

lot of all these States; there must have been perpetual collisions and

rival confederacies; there certainly would have been an indefinite

continuance of the slave-trade, accompanied and followed by a great

external pressure upon the States which permitted it, which would have

led to a war of races, or to a frightful oppression of the slaves.

Most of these evils would have followed the establishment of a partial

confederacy.

On the other hand, we are to consider what has been gained to humanity

by the establishment of the Constitution. The extinction of the

slave-trade, followed by a public opinion with reference to it that is

as strong and reliable in the Southern as in the Northern States, was

purchased at a price by no means unreasonable, when compared with the

magnitude of the acquisition. The great prosperity and high

civilization which are due to the commercial power of the Constitution

have been a vast benefit to both races;--to the whites by the superior

refinement they have created, and to the blacks by the gradual but

certain amelioration of their condition. The social strength and

security occasioned by constantly increasing wealth, combined with the

acknowledgment and establishment of the doctrine which makes every

State the uncontrolled arbiter of the domestic condition of its

inhabitants, has put it in the power of those who have charge of the

negro to deal prudently and wisely with their great problem, without

the interference of those who could benefit neither race by their

intervention. This, in every rational view of the subject, cannot but

be regarded as one of the chief blessings conferred by the

Constitution of the United States.

It has made emancipation possible, where otherwise it would have been

impossible, or where it could have been obtained only through the

horrors of both servile and civil war. It has enabled local

authorities to adapt changes to local circumstances. Its beneficent

influences may be traced in the laws of the States, in the records of

their jurisprudence, and in the advanced and advancing condition of

their public sentiment; and he who should follow those influences in

all their details, and count the sum of what it has effected for the

moral and physical well-being of the subjected race, would find cause

for devout gratitude to the Ruler of the Universe. Great as has been

the increase of slaves in the United States during the last seventy

years, there can be no question that the general improvement of their

condition has been equally great, and that it has kept pace with the

increasing prosperity of the country. That prosperity has enabled

individual enterprise and benevolence to plant a colony upon the coast

of Africa, which, after centuries of discipline and education, may yet

be the means of restoring to its native soil, as civilized and

Christian men, a race that came to us as heathens and barbarians.

Surely, then, with such results to look back upon, with such hopes in

the future, the patriot and the Christian can have no real cause for

regret or complaint, that in a system of representative government,

made necessary by controlling circumstances, the unimportant anomaly

should be found, of a representation of men without political rights

or social privileges; or that the question of emancipation, either for

the mass or the individual, should be carefully secured to local

authority; or even that the slave-trade should have been prosecuted

for a few years, to be extinguished by America first of all the

nations of the world.

FOOTNOTES:

[211] See Madison, Elliot, V. 302, 357.

[212] See the remarks of Gouverneur Morris in the debate on the

apportionment of representatives, in which he stated the dilemma

precisely in this way. Elliot, V. 301.

[213] No candid man, said Rufus King, could undertake to justify to

them a system under which slaves were to continue to be imported, and

to be represented, while the exports produced by their labor were not

to pay any part of the expenses of the government which would be

obliged to defend their masters against domestic insurrections or

foreign attacks. Elliot, V. 391.

[214] See the remarks of Mr. Ellsworth and General Pinckney, as

reported by Mr. Madison, Elliot, V. 458, 459.

[215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and

Wilson. I have classed Mr. Ellsworth among the representatives of

non-slaveholding States; for although there were between two and three

thousand slaves in Connecticut at this time, provision had already

been made for its prospective and gradual abolition. It was not

finally extinct in that State until after the year 1840. The United

States census for 1790 returned 2,759 slaves for Connecticut; the

census for 1840 returned 17; in the census for 1850 none were

returned. A like gradual abolition took place in New Hampshire, Rhode

Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery

was abolished by the State Constitution of 1780.

[216] See the remarks of Mr. Madison, Elliot, V. 490.

[217] Madison, Elliot, V. 391, 392.

[218] Ibid. 392, 393.

[219] New Jersey.

[220] The opposition to a power to tax exports was not confined to the

members from North and South Carolina and Georgia. Ellsworth and

Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts

considered such a power wrong in principle, and incapable of being

exercised with equality and justice.

[221] The vote was taken (August 21) upon so much of the fourth

section of the seventh article of the reported draft, as affirmed that

"no tax or duty shall be laid by the legislature on articles exported

from any State." Massachusetts, Connecticut, Maryland, Virginia

(General Washington and Mr. Madison _no_), North Carolina, South

Carolina, Georgia, _ay_, 7; New Hampshire, New Jersey, Pennsylvania,

Delaware, _no_, 4.--If the subject had been left in this position,

exports would have been taxable by the States. The plan of restraining

the power of the States over exports was subsequently adopted, after

the compromise involving the revenue and commercial powers of the

general government had been settled.

[222] Elliot, V. 457-461.

[223] See _ante_, Vol. I. Book III. Chap. IV., on the origin and

necessity of the commercial power.

[224] Elliot, V. 460.

[225] Elliot, V. 470, 471.

[226] Two grave objections were made to this settlement respecting the

importation of slaves. Mr. Madison records himself as saying, in

answer to the motion of General Pinckney to adopt the year 1808, that

twenty years would produce all the mischief that could be apprehended

from the slave-trade, and that so long a term would be more

dishonorable to the American character, than to say nothing about it

in the Constitution. But the real question was, whether the power to

prohibit the importation at any time could be acquired for the

Constitution; and the facts show that it could have been obtained only

by the arrangement proposed and carried. The votes of seven States

against four, given for General Pinckney's motion, show the

convictions then entertained. The other objection (urged by Roger

Sherman and Mr. Madison) was, that to lay a tax upon imported slaves

implied an acknowledgment that men could be articles of property. But

it appears from the statements of other members, also recorded by

Madison, that it was part of the compromise agreed upon in committee,

that the slave-trade should be placed under the revenue power, in

consideration of its not being placed at once within the commercial

power. It also appears that the tax was made to apply to the

"_importation_ of such persons as the States might see fit to admit,"

until the year 1808, in order to include and to discourage the

introduction of convicts.

But the principal object was undoubtedly the slave-trade; and this

particular phraseology was employed, instead of speaking directly of

the importation of _slaves_ into the States of North Carolina, South

Carolina, and Georgia, in order, on the one hand, not to give offence

to those States, and on the other, to avoid offending those who

objected to the use of the word "slaves" in the Constitution. Elliot,

V. 477, 478.

[227] That part of the compromise relating to the slave-trade, &c. was

adopted in Convention by the votes of New Hampshire, Massachusetts,

Connecticut, Maryland, North Carolina, South Carolina, Georgia, _ay_,

7; New Jersey, Pennsylvania, Delaware, Virginia, _no_, 4. Maryland,

Virginia, North Carolina, and Georgia voted for a proposition made by

C. Pinckney, to postpone the report, in order to take up a clause

requiring all commercial regulations to be passed by two thirds of

each house. But on the rejection of this motion, the report of the

compromise committee, recommending that a two-thirds vote for a

navigation act be stricken out, was agreed to, _nem. con._; as was

also the clause relating to a capitation tax.

[228] See the note on the American abolition of the slave-trade,

_ante_, Vol. I. p. 460.

[229] See the remarks of John Rutledge. Madison, Elliot, V. 491.

[230] General Pinckney. Ibid. 489.

[231] The point respecting the slave-trade was insisted upon by the

delegates of those three States, both as a matter of State pride and a

matter of practical interest. They regarded the increase of their

slave population by new importations as a thing of peculiarly domestic

concern, the control of which they were unwilling to transfer to the

general government. But they also contended for a political right

which their States intended to exercise. The following table, taken

from the United States Census, shows that in the twenty years which

elapsed from 1790 to 1810 during eighteen of which the importation of

slaves could not be prohibited by Congress, the slaves of those three

States increased in a ratio so much larger than the rate of increase

after the year 1808, as to make it apparent that it was not a mere

abstraction on which they insisted. The right to admit the importation

of slaves was exercised, and was intended to be exercised;--as some of

the delegates of the three States declared in the Convention.

PROGRESS OF THE SLAVE POPULATION FROM 1790 TO 1850, SHOWING THE

INCREASE PER CENT IN EACH PERIOD OF TEN YEARS.

North Carolina. South Carolina. Georgia.

1790 to 1800 32.53 36.46 102.99

1800 to 1810[A] 26.65 34.35 77.12

1810 to 1820 21.43 31.62 42.23

1820 to 1830 19.79 22.62 45.35

1830 to 1840[B] 0.08 3.68 29.15

1840 to 1850 17.38 17.71 35.85

[A] The constitutional power of Congress to prohibit the importation

took effect and was exercised in 1808.

[B] The great diminution in the rates of increase during this period

is probably due to the removal of slaves into Alabama, Arkansas,

Louisiana, and Texas.

But while the census shows that the power to admit slaves was

exercised freely during the twenty years that followed the adoption of

the Constitution of the United States, it also shows that the States

which insisted on retaining it for that period could well afford to

surrender it at the stipulated time. In 1810, the proportion of the

blacks of North Carolina to the whole population was 32.24 per cent,

and in 1850 it was 36.36; in South Carolina the proportion in 1810 was

48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in

1850, 42.44. It is not probable, therefore, that the prosperity of

those States has been diminished by the discontinuance of the

slave-trade; for it is not likely that they could well sustain a much

larger ratio of the blacks to the whites than that which now exists,

and which will probably continue to be maintained at about the same

point for a long period of time.

CHAPTER XI.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--THE REMAINING POWERS OF

CONGRESS.--RESTRAINTS UPON CONGRESS AND UPON THE STATES.

In the last preceding chapter, the reader has traced the origin of the

revenue and commercial powers, and of certain restrictions applied to

them in the progress of those great compacts, by means of which they

became incorporated into the Constitution. We have now to examine some

other qualifications which were annexed to those powers after the

first draft of the instrument had been prepared and reported by the

committee of detail.

That committee had presented a naked power to lay and collect taxes,

duties, imposts, and excises,[232] with a certain restriction as to

the taxation of exports, the final disposition of which has been

already described; but they had designated no particular objects to

which the revenues thus derived were to be applied. The general clause

embracing the revenue power was affirmed unanimously by the

Convention, on the 16th of August, leaving the exception of exports

for future action. At a subsequent period we find the words, "to pay

the debts and provide for the common defence and general welfare of

the United States," added to the clause which empowers Congress to

levy taxes and duties; and it is a somewhat important inquiry, how and

with what purpose they were placed there.

While the powers proposed by the committee of detail were under

consideration, Mr. Charles Pinckney introduced several topics designed

to supply omissions in their report, which were thereupon referred to

that committee. The purpose of one of his suggestions was to provide,

on the one hand, that funds appropriated for the payment of public

creditors should not, during the time of such appropriation, be

diverted to any other purpose; and, on the other hand, that Congress

should be restrained from establishing perpetual revenues. Another of

his suggestions contemplated a power to secure the payment of the

public debt, and still another to prevent a violation of the public

faith when once pledged to any public creditor.[233] Immediately after

this reference, Mr. Rutledge moved for what was called a grand

committee,[234] to consider the expediency of an assumption by the

United States of the State debts; and after some discussion of the

subject, such a committee was raised, and Mr. Rutledge's motion was

referred to them, together with a proposition introduced by Mr. Mason

for restraining grants of perpetual revenue.[235] Thus it appears that

the principal subject involved in the latter reference was the

propriety of inserting in the Constitution a specific power to make

special appropriations for the payment of debts of the United States

and of the several States, incurred during the late war for the common

defence and general welfare; and not to make a declaration of the

general purposes for which revenues were to be raised. Both

committees, however, seemed to have been charged with the

consideration of some restraint on the revenue power, with a view to

prevent perpetual taxes of any kind. The grand committee reported

first, presenting the following special provision:--"The legislature

of the United States shall have power to fulfil the engagements which

have been entered into by Congress, and to discharge, as well the

debts of the United States, as the debts incurred by the several

States during the late war for the common defence and general

welfare."[236] On the following day, the committee of detail presented

a report, recommending that at the end of the clause already adopted,

which contained the grant of the revenue power, the following words

should be added: "for payment of the debts and necessary expenses of

the United States; provided that no law for raising any branch of

revenue, except what may be specially appropriated for the payment of

interest on debts or loans, shall continue in force for more than

----years."[237]

Two distinct propositions were thus before the Convention. One of them

contemplated a qualification of the revenue power, the other did not.

One was to give authority to Congress to pay the revolutionary debt,

both of the United States and of the States, and to fulfil all the

engagements of the Confederation; the other was to declare that

revenues were to be raised and taxes levied for the purpose of paying

the debts and necessary expenses of the United States, limiting all

revenue laws, excepting those which were to appropriate specific funds

to the payment of interest on debts or loans, to a term of years. When

these propositions came to be acted upon, that reported by the grand

committee was modified into the declaration that "all debts contracted

and engagements entered into, by or under the authority of Congress,

shall be as valid against the United States, under this Constitution,

as under the Confederation." The State debts were thus left out; the

declaration was prefixed, as an amendment, to the clause which granted

the revenue power, and was thus obviously no qualification of that

power.[238]

But it was thought by Mr. Sherman, that the clause for laying taxes

and duties ought to have connected with it an express provision for

the payment of the old debts; and he accordingly moved to add to that

clause the words, "for the payment of said debts, and for the

defraying the expenses that shall be incurred for the common defence

and general welfare." This was regarded by the Convention as

unnecessary, and was therefore not adopted.[239] But the provision

reported by the committee of detail, which was intended as a

qualification of the revenue power, by declaring the objects for which

taxes and duties were to be levied, had not yet been acted upon, and

on the 31st of August, this, with all other matters not disposed of,

was referred to a new grand committee, who, on the 4th of September,

introduced an amendment to the revenue clause, which made it read as

follows:--"The legislature shall have power to lay and collect taxes,

duties, imposts, and excises, to pay the debts, and provide for the

common defence and general welfare of the United States." This

amendment was unanimously adopted;[240] and when the Constitution was

revised, at the close of the proceedings, the declaration which made

the debts and engagements of the Confederation obligatory upon the new

Congress, was separated from the context of the revenue clause, and

placed by itself in the _sixth_ article.

There is one other restraint upon the revenue, as well as upon the

commercial power, the history of which now demands our inquiries. But

in order to understand it correctly, it will be necessary for the

reader to recur to the position in which the revenue and commercial

powers were left by the sectional compromises described in the last

chapter. The struggle between the Northern and the Southern States

concerning the limitations of those powers turned, as we have seen, on

certain restrictions desired by the latter. They wished to have

exports excepted out of the revenue power; they wished to have a vote

of two thirds made necessary to the passage of any commercial

regulation; and three of them wished to have the slave-trade excepted

from both the revenue and the commercial powers. We have seen that the

result of the sectional compromises was to leave the commercial and

revenue powers unlimited, excepting by the saving in relation to the

slave-trade; that they left the revenue power unlimited, excepting by

the restriction concerning exports and a capitation tax; and that the

commercial power was to be exercised, like other legislative powers,

by a majority in Congress. General commercial and revenue powers,

then, without other restrictions than these, would enable Congress to

collect their revenues where they should see fit, without obliging

them to adopt the old ports of entry of the States, or to consider the

place where a cargo was to be unladen. They might have custom-houses

in only one place in each State, or in only such States as they might

choose to select, and might thus compel vessels bound from or to all

the other States to clear or enter at those places. But, on the other

hand, a constitutional provision which would require them to establish

custom-houses at the old ports of entry of the States, without leaving

them at liberty to establish other ports of entry, or to compel

vessels to receive on board revenue officers before they had reached

their ports of destination, would create opportunities and facilities

for smuggling.

It appears that the people of Maryland felt some apprehension that an

unrestricted power to make commercial and fiscal regulations might

result in compelling vessels bound to or from Baltimore to enter or

clear at Norfolk, or some other port in Virginia. The delegates of

Maryland accordingly introduced a proposition, which embraced two

ideas; first, that Congress shall not oblige vessels, domestic or

foreign, to enter or pay duties or imposts in any other State than in

that to which they may be bound, or to clear from any other State than

that in which their cargoes may be laden; secondly, that Congress

shall not induce vessels to enter or clear in one State in preference

to another, by any privileges or immunities.[241] This proposition

became the basis of that clause of the Constitution, which declares

that "no preference shall be given by any regulation of commerce or

revenue to the ports of one State over those of another; nor shall

vessels bound to, or from, one State, be obliged to enter, clear, or

pay duties in another."[242]

It was while this subject of the equal operation of the commercial and

revenue powers upon the different States was under consideration, that

the further provision was devised and incorporated into the

Constitution, which requires all duties, imposts, and excises to be

uniform throughout the United States. This clause, in the final

revision of the instrument, was annexed to the power of taxation.[243]

The commercial power, besides being subjected to the restrictions

which have been thus described, was extended to a subject not embraced

in it by the report of the committee of detail. They had included in

it "commerce with foreign nations, and among the several

States";--meaning, by the former term, not to include the Indian

tribes upon this continent, but all other communities, civilized and

barbarian, foreign to the people of the United States. By the system

which had always prevailed in the relations of Europeans and their

descendants with the Indians of America, those tribes had constantly

been regarded as distinct and independent political communities,

retaining their original rights, and among them the undisputed

possession of the soil; subject to the exclusive right of the European

nation making the first discovery of their territory to purchase it.

This principle, incorporated into the public law of Europe at the time

of the discovery and settlement of the New World, and practised by

general consent of the nations of Europe, was the basis of all the

relations maintained with the Indian tribes by the imperial

government, in the time of our colonial state, by our Revolutionary

Congress, and by the United States under the Confederation. It

recognized the Indian tribes as nations, but as nations peculiarly

situated, inasmuch as their intercourse and their power to dispose of

their landed possessions were restricted to the first discoverers of

their territory. This peculiar condition drew after it two

consequences;--first, that, as they were distinct nations, they could

not be treated as part of the subjects of any one of the States, or of

the United States; and secondly, that, as their intercourse and trade

were subjected to restraint, that restraint would be most

appropriately exercised by the federal power. So general was the

acquiescence in these necessities imposed by the principle of public

law which defined the condition of the Indian tribes, that during the

whole of the thirteen years which elapsed from the commencement of the

Revolution to the adoption of the Constitution, the regulation of

intercourse with those tribes was left to the federal authority. It

was tacitly assumed by the Revolutionary Congress, and it was

expressly conferred by the Articles of Confederation.

The provision of the Confederation on this subject gave to the United

States the exclusive right and power "of regulating the trade and

managing all affairs with the Indians not members of any of the

States, provided that the legislative right of any State within its

own limits be not infringed or violated." The exception of such

Indians as were members of any State, referred to those broken

members of tribes who had lost their nationality, and had become

absorbed as individuals into the political community of the whites.

With all other Indians, remaining as distinct and self-governing

communities, trade and intercourse were subject to the regulation of

Congress; while at the same time each State retained to itself the

regulation of its commerce with all other nations. The broad

distinction thus early established, and thus perpetuated in the

Confederation, between commerce with the Indian tribes, and commerce

with "foreign nations," explains the origin and introduction of a

special provision for the former, as distinguished from the latter, in

the Constitution of the United States.

For although there might have been some reason to contend that

commerce with "foreign nations"--if the grant of the commercial power

had not expressly embraced the Indian tribes--would have extended to

those tribes, as nations foreign to the United States, yet the entire

history of the country, and the peculiarity of the intercourse needful

for their security, made it eminently expedient that there should be a

distinct recognition of the Indian communities, in order that the

power of Congress to regulate all commerce with them might not only be

as ample as that relating to foreign nations, but might stand upon a

distinct assertion of their condition as _tribes_. Accordingly, Mr.

Madison introduced the separate proposition "to regulate affairs with

the Indians, as well within as without the limits of the United

States";[244] and the committee to whom it was referred gave effect to

it, by adding the words, "and with the Indian tribes," to the end of

the clause containing the grant of the commercial power.[245]

The remaining powers of Congress may be considered in the order in

which they were acted upon by the Convention. The powers to establish

a uniform rule of naturalization, to coin money and regulate the value

thereof and of foreign coin, and fix the standard of weights and

measures, were adopted without discussion and with entire unanimity,

as they had been proposed in the draft prepared by the committee of

detail. The power to establish post-offices was extended to embrace

post-roads.[246]

These were succeeded by the subject of borrowing money and emitting

bills on the credit of the United States; a power that was proposed to

be given by the committee of detail, while they at the same time

proposed to restrain the States from emitting bills of credit. I have

not been able to discover upon what ground it was supposed to be

proper or expedient to confer a power of emitting bills of credit on

the United States, and to prohibit the States from doing the same

thing. That the same thing was in contemplation in the two provisions

reported by the committee, sufficiently appears from the debates and

from the history of the times. The object of the prohibition on the

States was to prevent the issue and circulation of paper money; the

object of the proposed grant of power to the United States was to

enable the government to employ a paper currency, when it should have

occasion to do so. But the records of the discussions that have come

down to us do not disclose the reasons which may have led to the

supposition that a paper currency could be used by the United States

with any more propriety or safety than by a State. One of the

principal causes which had led to the experiment of making a national

government with power to prevent such abuses, had been the frauds and

injustice perpetrated by the States in their issues of paper money;

and there was at this very time a loud and general outcry against the

conduct of the people of Rhode Island, who had kept themselves aloof

from the national Convention, for the express purpose, among others,

of retaining to themselves the power to issue such a currency.

It is possible that the phrase "emit bills on the credit of the United

States" might have been left in the Constitution, without any other

danger than the hazards of a doubtful construction, which would have

confined its meaning to the issuing of certificates of debt under the

power to "borrow money." But this was not the sense in which the term

"bills of credit" was generally received throughout the country, nor

the sense intended to be given to it in the clause which contained the

prohibition on the States. The well-understood meaning of the term had

reference to paper issues, intended to circulate as currency, and

bearing the public promise to pay a sum of money at a future time,

whether made or not made a legal tender in payment of debts. It would

have been of no avail, therefore, to have added a prohibition against

making such bills a legal tender. If a power to issue them should once

be seen in the Constitution, or should be suspected by the people to

be there, wrapt in the power of borrowing money, the instrument would

array against itself a formidable and probably a fatal opposition. It

was deemed wiser, therefore, even if unforeseen emergencies might in

some cases make the exercise of such a power useful, to withhold it

altogether. It was accordingly stricken out, by a vote of nine States

against two, and the authority of Congress was thus confined to

borrowing money on the credit of the United States, which appears to

have been intended to include the issuing of government notes not

transferable as currency.[247]

The clauses which authorize Congress to constitute tribunals inferior

to the Supreme Court,[248] and to make rules as to captures on land

and water,[249]--the latter comprehending the grant of the entire

prize jurisdiction,--were assented to without discussion.[250] Then

came the consideration of the criminal jurisdiction in admiralty, and

that over offences against the law of nations. The committee of

detail had authorized Congress "to declare the law and punishment of

piracies and felonies committed on the high seas, ... and of offences

against the law of nations." The expression to "declare the law," &c.

was changed to the words "define and punish," for the following

reason. Piracy is an offence defined by the law of nations, and also

by the common law of England. But in those codes a single crime only

is designated by that term.[251] It was necessary that Congress should

have the power to declare whether this definition was to be adopted,

and also to determine whether any other crimes should constitute

piracy. In the same way, the term "felony" has a particular meaning in

the common law, and it had in the laws of the different States of the

Union a somewhat various meaning. It was necessary that Congress

should have the power to adopt any definition of this term, and also

to determine what other crimes should be deemed felonies. So also

there were various offences known to the law of nations, and generally

regarded as such by civilized States. But before Congress could have

power to punish for any of those offences, it would be necessary that

they, as the legislative organ of the nation, should determine and

make known what acts were to be regarded as offences against the law

of nations; and that the power to do this should include both the

power to adopt from the code of public law offences already defined

by that code, and to extend the definition to other acts. The term

"declare" was therefore adopted expressly with a view to the

ascertaining and creating of offences, which were to be treated as

piracies and felonies committed on the high seas, and as offences

against the law of nations.[252]

The same necessity for an authority to prescribe a previous definition

of the crime of counterfeiting the securities and current coin of the

United States would seem to have been felt; and it was probably

intended to be given by the terms "to provide for the punishment of"

such counterfeiting.[253]

The power to "declare" war had been reported by the committee as a

power to "make" war. There was a very general acquiescence in the

propriety of vesting the war power in the legislature rather than the

executive; but the former expression was substituted in place of the

latter, in order, as it would seem, to signify that the legislature

alone were to determine formally the state of war, but that the

executive might be able to repel sudden attacks.[254] The clause which

enables Congress to grant "letters of marque and reprisal" was added

to the war power, at a subsequent period, on the recommendation of a

committee to whom were referred sundry propositions introduced by

Charles Pinckney, of which this was one.[255]

In addition to the war power, which would seem to involve of itself

the authority to raise all the necessary forces required by the

exigencies of a war, the committee of detail had given the separate

power "to raise armies," which the Convention enlarged by adding the

term to "support."[256] This embraced standing armies in time of

peace, and, as the clause thus amended would obviously allow, such

armies might be enlarged to any extent and continued for any time. The

nature of the government, and the liberties and the very prejudices of

the people, required that some check should be introduced, to prevent

an abuse of this power. A limitation of the number of troops that

Congress might keep up in time of peace was proposed, but it was

rejected by all the States as inexpedient and impracticable.[257]

Another check, capable of being adapted to the proper exercise of the

power itself, was to be found in an idea suggested by Mr. Mason, of

preventing a perpetual revenue.[258] The application of this principle

to the power of raising and supporting armies would furnish a salutary

limitation, by requiring the appropriations for this purpose to pass

frequently under the review of the representatives of the people,

without embarrassing the exercise of the power itself. Accordingly,

the clause now in the Constitution, which restricts the appropriation

of money to the support of the army to a term not longer than two

years, was added to the power of raising and supporting armies.[259]

Authority "to provide and maintain a navy" was unanimously agreed as

the most convenient definition of the power, and to this was added,

from the Articles of Confederation, the power "to make rules for the

government and regulation of the land and naval forces."[260]

The next subject which required consideration was the power of the

general government over the militia of the States. There were few

subjects dealt with by the framers of the Constitution exceeding this

in magnitude, in importance, and delicacy. It involved not only the

relations of the general government to the States and the people of

the States, but the question whether and how far the whole effective

force of the nation could be employed for national purposes and

directed to the accomplishment of objects of national concern. The

mode in which this question should be settled would determine, in a

great degree, and for all time, whether the national power was to

depend, for the discharge of its various duties in peace and in war,

upon standing armies, or whether it could also employ and rely upon

that great reservation of force that exists in all countries

accustomed to enroll and train their private citizens to the use of

arms.

The American Revolution had displayed nothing more conspicuously than

the fact, that, while the militia of the States were in general

neither deficient in personal courage, nor incapable of being made

soldiers, they were inefficient and unreliable as troops. One of the

principal reasons for this was, that, when called into the field in

the service of the federal power, the different corps of the several

States looked up to their own local government as their sovereign; and

being amenable to no law but that of their own State, they were

frequently indisposed to recognize any other authority. But a far more

powerful cause of their inefficiency lay in the fact that they were

not disciplined or organized or armed upon any uniform system. A

regiment of militia drawn from New Hampshire was a very different body

from one drawn from New York, or Pennsylvania, or New Jersey, or South

Carolina. The consequence was, that when these different forces were

brought to act together, there were often found in the same campaign,

and sometimes in the same engagement, portions of them in a very

respectable state of discipline and equipment, and others in no state

of discipline or equipment at all.

The necessity, therefore, for a uniform system of disciplining and

arming the militia was a thing well ascertained and understood, at the

time of the formation of the Constitution. But the control of this

whole subject was a part of the sovereignty of each State, not likely

to be surrendered without great jealousy and distrust; and one of the

most delicate of the tasks imposed upon the Convention was that of

determining how far and for what purposes the people of the several

States should be asked to confer upon the general government this very

important part of their political sovereignty. One thing, however, was

clear;--that, if the general government was to be charged with the

duty of undertaking the common defence against an external enemy, or

of suppressing insurrection, or of protecting the republican character

of the State constitutions, it must either maintain at all times a

regular army suitable for any such emergency, or it must have some

power to employ the militia. The latter, when compared with the

resource of standing armies, is, as was said of the institution of

chivalry, "the cheap defence of nations"; and although no nation has

found, or will be likely to find, it sufficient, without the

maintenance of some regular troops, the nature of the liberties

inherent in the construction of the American governments, and the

whole current of the feelings of the American people, would lead them

to the adoption of a policy that might restrain, rather than

encourage, the growth of a permanent army. So far, therefore, it

seemed manifest, from the duties which were to be imposed on the

government of the Union, that it must have a power to employ the

militia of the States; and this would of necessity draw after it, if

it was to be capable of a beneficial exercise, the power to regulate,

to some extent, their organization, armament, and discipline.

But the first draft of the Constitution, prepared by the committee of

detail, contained no express power on this subject, excepting "to

call forth the aid of the militia in order to execute the laws of the

Union, enforce treaties, suppress insurrections, and repel

invasions."[261] Possibly it might have been contended, after the

Constitution had gone into operation, that the general power to make

all laws necessary and proper for the execution of the powers

specially enumerated, would enable Congress to prescribe regulations

of the force which they were authorized to employ, since the authority

to employ would seem to involve the right to have the force kept in a

fit state to be employed. But this would have been a remote

implication of power, too hazardous to be trusted; and it at once

occurred to one of the wisest and most sagacious of the statesmen

composing the Convention, who, though he never signed the

Constitution, exercised a great and salutary influence in its

preparation,--Mr. Mason of Virginia,--that an express and unequivocal

power of regulating the militia must be conferred. He stated the

obvious truth, that, if the disciplining of the militia were left in

the hands of the States, they never would concur in any one system;

and as it might be difficult to persuade them to give up their power

over the whole, he was at first disposed to adopt the plan of placing

a part of the militia under the control of the general government, as

a select force.[262] But he, as well as others, became satisfied that

this plan would not produce a uniformity of discipline throughout the

entire mass of the militia. The question, therefore, resolved itself

practically into this,--what should be the nature and extent of the

control to be given to the general government, assuming that its

control was to be applicable to the entire militia of the several

States. This important question, involved in several distinct

propositions, was referred to a grand committee of the States.[263] It

was by them that the plan was digested and arranged by which Congress

now has the power to provide for organizing, arming, and disciplining

the militia, and for governing such part of them as may be employed in

the service of the United States, reserving to the States the

appointment of the officers, and the authority of training the militia

according to the discipline prescribed by Congress;[264]--a provision

that was adopted by a large majority of the States. The clause

reported by the committee of detail was also adopted, by which

Congress is enabled to provide for calling forth the militia to

execute the laws of the Union, suppress insurrections, and repel

invasions.[265]

The next subject in the order of the report made by the committee of

detail was that general clause now found at the close of the

enumeration of the express powers of Congress, which authorizes them

"to make all laws which may be necessary and proper for carrying into

execution the foregoing powers, and all other powers vested by this

Constitution in the government of the United States, or in any

department or officer thereof."[266] Nothing occurred in the

proceedings on this provision which throws any particular light upon

its meaning, excepting a proposition to include in it, expressly, the

power to "establish all offices" necessary to execute the powers of

the Constitution; an addition which was not made, because it was

considered to be already implied in the terms of the clause.[267]

The subjects of patents for useful inventions and of copyrights of

authors appear to have been brought forward by Mr. Charles Pinckney.

They gave rise to no discussion in the Convention, but were considered

in a grand committee, with other matters, and there is no account of

the views which they took of this interesting branch of the powers of

Congress. We know, however, historically, that these were powers not

only possessed by all the States, but exercised by some of them,

before the Constitution of the United States was formed. Some of the

States had general copyright laws, not unlike those which have since

been enacted by Congress;[268] but patents for useful inventions were

granted by special acts of legislation in each case. When the power to

legislate on these subjects was surrendered by the States to the

general government, it was surrendered as a power to legislate for the

purpose of securing a natural right to the fruits of mental labor.

This was the view of it taken in the previous legislation of the

States, by which the power conferred upon Congress must of course, to

a large extent, be construed.

Such are the legislative powers of Congress, which are to be exercised

within the States themselves;--and it is at once obvious, that they

constitute a government of limited authority. The question arises,

then, whether that authority is anywhere full and complete, embracing

all the powers of government and extending to all the objects of which

it can take cognizance. It has already been seen, that, when provision

was made for the future acquisition of a seat of government, exclusive

legislation over the district that might be acquired for that purpose

was conferred upon Congress.[269] In the same clause, the like

authority was given over all places that might be purchased, with the

consent of any State legislature, for the erection of forts,

magazines, arsenals, dock-yards, and other needful buildings.[270] All

the other places to which the authority of the United States can

extend are included under the term "territories," which are out of the

limits and jurisdiction of any State. As this is a subject which is

intimately connected with the power to admit new States into the

Union, we are now to consider the origin and history of the authority

given to Congress for that purpose.

In examining the powers of Congress contained in the first article of

the Constitution, the reader will not find any power to admit new

States into the Union; and while he will find there the full

legislative authority to govern the District of Columbia and certain

other places ceded to the United States for particular purposes, of

which I have already spoken, he will find no such authority there

conferred in relation to the territory which had become the property

of the United States by the cession of certain of the States before

and after the adoption of the Articles of Confederation. If this power

of legislation exists as to the territories, it is to be looked for in

another connection; and although it is not the special province of

this work to discuss questions of construction, it is proper here to

state the history of those portions of the Constitution which relate

to this branch of the authority of Congress.

In the first volume of this work, I have given an account of the

origin of the Northwestern Territory, of its relations to the Union,

and of the mode in which the federal Congress had dealt with it down

to the time when the national Convention was assembled.[271] From the

sources there referred to, and from others to which reference will now

be made, it may be convenient to recapitulate what had been done or

attempted by the Congress of the Confederation.

It appears that during the preparation of the Articles of

Confederation an effort was made to include in them a grant of express

power to the United States in Congress to ascertain and fix the

western boundaries of the existing States, and to lay out the

territory beyond the boundaries that were to be thus ascertained into

new States. This effort totally failed. It was founded upon the idea

that the land beyond the rightful boundaries of the old States was

already, or would by the proposed grant of power to ascertain those

boundaries become, the common property of the Union. But the States,

which then claimed an uncertain extension westward from their actual

settlements, were not prepared for such an admission, or such a grant;

and accordingly the Articles of Confederation, which were issued in

1777 and took effect in 1781, contained no express power to deal with

landed property of the United States, and no provision which could

safely be construed into a power to form and admit new States out of

then unoccupied lands anywhere upon the continent. Still, the Articles

were successively ratified by some of the States, and finally became

established, in the express contemplation that the United States

should be made the proprietor of such lands, by the cession of the

States which claimed to hold them. In order to procure such cessions,

as the means of inducing a unanimous accession to the confederacy, the

Congress in 1780 passed a resolve, in which they promised to dispose

of the lands for the common benefit of the United States, to settle

and form them into distinct republican States, and to admit such

States into the Union on an equal footing with its present

members.[272] The great cession by Virginia, made in 1784, was

immediately followed by another resolve, for the regulation of the

territory thus acquired.[273]

This resolve, as originally reported by Mr. Jefferson, embraced a plan

for the organization of temporary governments in certain States which

it undertook to describe and lay out in the Western territory, and for

the admission of those States into the Union. In one particular, also,

it undertook, as it was first reported, to regulate the personal

rights or relations of the settlers, by providing that, after the year

1800, slavery, or involuntary servitude except for crime, should not

exist in any of the States to be formed in the territory. But this

clause was stricken out before the resolve was passed, and its removal

left the measure a mere provision for the political organization of

temporary and permanent governments of States, and for the admission

of such States into the Union. So far as personal rights or relations

were involved in it, the settlers were authorized to adopt, for a

temporary government, the constitution and laws of any one of the

original States, but the laws were to be subject to alteration by

their ordinary legislature. The conditions of their admission into the

Union referred solely to their political relations to the United

States, or to the rights of the latter as the proprietor of the

ungranted lands.

In about a year from the passage of this measure introduced by Mr.

Jefferson, and after he had gone on his mission to France, an effort

was made by Mr. King to legislate on the subject of the immediate and

perpetual exclusion of slavery from the States described in Mr.

Jefferson's resolve. Mr. King's proposition was referred to a

committee, but it does not appear that it was ever acted upon.[274]

The cessions of Massachusetts and Connecticut followed, in 1785 and

1786. Within two years from this period, such had been the rapidity of

emigration and settlement, and so inconvenient had become the plan of

1784, that Congress felt obliged to legislate anew on the whole

subject of the Northwestern Territory, and proceeded to frame and

adopt the Ordinance of July 13, 1787. This instrument not only

undertook to make political organizations, and to provide for the

admission of new States into the Union, but it also dealt directly

with the rights of individuals. Its exclusion of slavery from the

territory is well known as one of its fundamental articles, not

subject to alteration by the people of the territory, or their

legislature.[275]

The power of Congress to deal with the admission of new States was not

only denied at the time, but its alleged want of such power was one of

the principal reasons which were said to require a revision of the

federal system. It does not appear that the subject of legislation on

the rights or condition of persons attracted particular attention; nor

do we know, from anything that has come down to us, that the clause

relating to slavery was stricken from Mr. Jefferson's resolve in

1784, upon the special ground of a want of constitutional power to

legislate on such a question. But Mr. Jefferson has himself informed

us, that a majority of the States in Congress would not consent to

construe the Articles of Confederation as if they had reserved to nine

States in Congress power to admit new States into the Union from the

territorial possessions of the United States; and that they so shaped

his measure, as to leave the question of power and the rule for voting

to be determined when a new State formed in the territory should apply

for admission.[276] It seems, also, that although the power to frame

territorial governments, to organize States and admit them into the

Union, was assumed in the Ordinance of 1787, the Congress of the

Confederation never acted upon the power so far as to admit a

State.[277] Finally, we are told by Mr. Madison, in the Federalist,

that all that had been done in the Ordinance by the Congress of the

Confederation, including the sale of lands, the organization of

governments, and the prescribing of conditions of admission into the

Union, had been done "without the least color of constitutional

authority";[278]--an assertion which, whether justifiable or not,

shows that the power of legislation was by some persons strenuously

denied.[279]

With regard to the powers of Congress, under the Confederation, to

erect new States in the Northwestern Territory, and to admit them into

the Union, the truth seems to be this. There is no part of the

Articles of Confederation which can be said to confer such a power;

and, in fact, when the Articles were framed, the Union, although it

then existed by an imperfect bond, not only possessed no such

territory, but it did not then appear likely to become the proprietor

of lands, claimed by certain of the States as the successors of the

crown of Great Britain, and lying within what they regarded as their

original chartered limits. The refusal of those States to allow the

United States to determine their boundaries, made it unnecessary to

provide for the exercise of authority over a public domain. But in the

interval between the preparation of the Articles and their final

ratification, a great change took place in the position of the Union.

It was found that certain of the smaller States would not become

parties to the Confederation, if the great States were to persist in

their refusal to cede to the Union their claims to the unoccupied

Western lands; and although the States which thus held themselves

back, for a long time, from the ratification of the Articles, finally

adopted them, before the cessions of Western territory were made,

they did so upon the most solemn assertion that they expected and

confided in a future relinquishment of their claims by the other

States. Those just expectations were fulfilled. By the acts of

cession, and by the proceedings of Congress which invited them, the

United States not only became the proprietors of a great public

domain, but they received that domain upon the express trust that its

lands should be disposed of for the common benefit, and that the

country should be settled and formed into republican States, and that

those States should be admitted into the Union. In these conveyances,

made and accepted upon these trusts, there was a unanimous

acquiescence by the States.

While, therefore, in the formal instrument under which the Congress

was organized, and by which the United States became a corporate body,

there was no article which looked to the admission of new States into

that body, formed out of territory thus acquired, and no power was

conferred to dispose of such lands or govern such territory, there

were, outside of that instrument, and closely collateral to it,

certain great compacts between the States, arising out of deeds of

cession and the formal guaranties by which those cessions had been

invited, and with which they had been received, which proceeded as if

there were a competent authority in the United States in Congress to

provide for the formation of the States contemplated, and for their

admission into the Union. Strictly speaking, however, there was no

such authority. It was to be gathered, if at all, from public acts

and general acquiescence, and could not be found in the instrument

that formed the charter and established the powers of the Congress. It

was an authority, therefore, liable to be doubted and denied; it was

one for the exercise of which the Congress was neither well fitted nor

well situated; and it was moreover so delicate, so extensive, and so

different from all the other powers and duties of the government, as

to make it eminently necessary to have it expressly stated and

conferred in the instrument under which all the other functions of the

government were to be exercised.[280]

Such was the state of things at the period of the formation of the

Constitution; and as we are to look for the germ of every power

embraced in that instrument in some stage of the proceedings which

took place in the course of its preparation, it is important at once

to resort to the first suggestion of any authority over these

subjects. In doing so, we are to remember that the United States had

accepted cessions of the Northwestern Territory, impressed with two

distinct trusts: first, that the country should be settled and formed

into distinct republican States, which should be admitted into the

Union; secondly, that the lands should be disposed of for the common

benefit of all the States.[281]

Accordingly, we find in the plan of government presented by Governor

Randolph at the opening of the Convention, a resolution declaring

"that provision ought to be made for the admission of States lawfully

arising within the limits of the United States, whether from a

voluntary junction of government and territory or otherwise, with the

consent of a number of voices in the national legislature less than

the whole."[282] This resolution remained the same in phraseology and

in purpose through all the stages to which the several propositions

that formed the outline of the new government were subjected, down to

the time when they were sent to the committee of detail for the

purpose of having the Constitution drawn out. Looking to the manifest

want of power in the Confederation to admit new States into the

Union; to the probability that Vermont, Kentucky, Tennessee (then

called Franklin), and Maine,--none of which were embraced in any

cessions that had then been made to the United States,--might become

separate States; and to the prospective legislation of the Ordinance

of 1787 concerning the admission of States that were to be formed in

the territory northwest of the Ohio, which had been ceded to the

Union;--it seems quite certain that the purpose of the resolution was

to supply a power to admit new States, whether formed from the

territory of one of the existing States, or from territory that had

become the exclusive property of the United States. The resolution

contained, however, no positive restriction, which would require the

assent of any existing State to the separation of a part of its

territory; but as the States to be admitted were to be those "lawfully

arising," it is apparent that the original intention was that no

present State should be dismembered without its consent. But in order

to make this the more certain, the committee of detail, in the article

in which they carried out the resolution, gave effect to its

provisions in these words:--"New States lawfully constituted or

established within the limits of the United States may be admitted, by

the legislature, into this government; but to such admission the

consent of two thirds of the members present in each house shall be

necessary. If a new State shall arise within the limits of any of the

present States, the consent of the legislatures of such States shall

be also necessary to its admission. If the admission be consented to,

the new States shall be admitted on the same terms with the original

States. But the legislature may make conditions with the new States

concerning the public debt which shall be then subsisting."[283]

In the first draft of the Constitution, therefore, there was contained

a qualified power to admit new States, whether arising within the

limits of any of the old States, or within the territory of the United

States. But in this proposition there was a great omission; for

although the States to be admitted were to be those lawfully arising,

and such a State might be formed out of the territory of an existing

State by the legislative power of the latter, yet it was not

ascertained how a State was "lawfully to arise" in the territory of

the United States. Nor was there, at present, any provision introduced

into the Constitution by which Congress could dispose of the soil of

the national domain. These as well as other omissions at once

attracted the attention of Mr. Madison, who, as we have seen, held the

opinion that the entire legislation of the old Congress in reference

to the Northwestern Territory was without constitutional authority.

Before the article which embraced the admission of new States was

reached, he moved the following among other powers:[284] "to dispose

of the unappropriated lands of the United States"; and "to institute

temporary governments for new States arising therein." These

propositions were referred to the committee of detail, but before any

action upon them, the article previously reported by that committee

was reached and taken up, and there ensued upon it a course of

proceeding which resulted in the provisions that now stand in the

third section of the fourth article of the Constitution.[285]

The first alteration made in the article reported by the committee was

to strike out the clause which declared that the new States should be

admitted on an equal footing with the old ones. The reason assigned

for this change was, that the legislature ought not to be tied down to

such an admission, as it might throw the balance of power into the

Western States.[286] The next modification was to strike out the

clause which required a vote of two thirds of the members present for

the admission of a State.[287] This left the proposed article a mere

grant of power to admit new States, requiring the consent of the

legislature of any State that might be dismembered, as well as the

consent of Congress. An earnest effort was then made, by some of the

members from the smaller States, to remove this restriction, upon the

ground that the United States, by the treaty of peace with England,

had become the proprietor of the crown lands which were situated

within the limits claimed by some of the States that would be likely

to be divided; and it was urged, that to require the consent of

Virginia, North Carolina, and Georgia to the separation of their

Western settlements, might give those States an improper control over

the title of the United States to the vacant lands lying within the

jurisdiction claimed by those States, and would enable them to retain

the jurisdiction unjustly, against the wish of the settlers. But a

large majority of the States refused to concede a power to dismember a

State, without its consent, by taking away even its claims to

jurisdiction. It was considered by them, that as to municipal

jurisdiction over settlements already made within limits claimed by

Virginia, North Carolina, and Georgia, the Constitution ought not to

interfere, without the joint consent of the settlers and the State

exercising such jurisdiction; that if the title to lands unoccupied at

the treaty of peace, lying within the originally chartered limits of

any of the States, was in dispute between them and the United States,

that controversy would be within the reach of the judicial power, as

one between a State and the United States, or it might be terminated

by a voluntary cession of the State claim to the Union.[288]

The next step taken in the settlement of this subject was to provide

for the case of Vermont, which was then in the exercise of an

independent sovereignty, although it was within the asserted limits of

New York. It was thought proper, in this particular case, not to make

the State of Vermont, already formed, dependent for her admission

into the Union on the consent of New York. For this reason, the words

"hereafter formed" were inserted in the article under consideration,

and the word "jurisdiction" was substituted for "limits."[289] Thus

modified, the article stood as follows:--

"New States may be admitted by the legislature into the Union; but no

new State shall be hereafter formed or erected within the jurisdiction

of any of the present States, without the consent of the legislature

of such State, as well as of the general legislature."

This provision was quite unsatisfactory to the minority. They wished

to have the Constitution assert a distinct power in Congress to erect

new States within, as well as without, the territory claimed by any of

the States, and to admit such new States into the Union; and they also

wished for a saving clause to protect the title of the United States

to vacant lands ceded by the treaty of peace. Luther Martin

accordingly moved a substitute article, embracing these two objects,

but it was rejected.[290] A clause was then added to the article

pending, which declared that no State should be formed by the junction

of two or more States, or parts of States, without the consent of the

States concerned, as well as the consent of Congress. This completed

the substance of what is now the first clause of the third section of

the fourth article of the Constitution.[291]

Mr. Carroll thereupon renewed the effort to introduce a clause saving

the rights of the United States to vacant lands; and after some

modification, he finally submitted it in these words: "Nothing in this

Constitution shall be construed to alter the claims of the United

States, or of the individual States, to the Western territory; but all

such claims shall be examined into, and decided upon, by the Supreme

Court of the United States." Before any vote was taken upon this

proposition, however, Gouverneur Morris moved to postpone it, and

brought forward as a substitute the very provision which now forms the

second clause of the third section of article fourth, which he

presented as follows: "The legislature shall have power to dispose of,

and make all needful rules and regulations respecting, the territory

or other property belonging to the United States; and nothing in this

Constitution contained shall be so construed as to prejudice any

claims, either of the United States or of any particular State." This

provision was adopted, without any other dissenting vote than that of

the State of Maryland.[292]

The purpose of this provision, as it existed at the time in the minds

of the framers of the Constitution, must be gathered from the whole

course of their proceedings with respect to it, and from the

surrounding facts, which exhibit what was then, and what was

afterwards likely to become, the situation of the United States in

reference to the acquisition of territory and the admission of new

States. There were, then, at the time when this provision was made,

four classes of cases in the contemplation of the Convention. The

first consisted of the Northwestern Territory, in which the title to

the soil and the political jurisdiction were already vested in the

United States. The second embraced the case of Vermont, which was then

exercising an independent jurisdiction adversely to the State of New

York, and the case of Kentucky, then a district under the jurisdiction

of Virginia; in both of which the United States neither claimed nor

sought to acquire either the title to the vacant lands or the rights

of political sovereignty, but which would both require to be received

as new and separate States, the former without the consent of New

York, the latter with the consent of Virginia. The third class

comprehended the cessions which the United States in Congress were

then endeavoring to obtain from the States of North Carolina, South

Carolina, and Georgia, and in which were afterwards established the

States of Tennessee, Mississippi, and Alabama.[293] These cessions, as

it then appeared, might or might not all be made. If made, the title

of the United States to the unoccupied lands would be complete,

resting both upon the cessions and upon the treaty of peace with

England; and the political jurisdiction over the existing settlements,

as well as over the whole territory, would be transferred with the

cessions, subject to any conditions which the ceding States might

annex to their grants. If the cessions should not be made, the claims

of the United States to the unoccupied lands would stand upon the

treaty of peace, and would require to be saved by some clause in the

Constitution which should signify that they were not surrendered;

while the claims of the respective States would require to be

protected in like manner.

The reader will now be prepared to understand the following

explanation of the third section of the fourth article of the

Constitution. First, with reference to the Northwestern Territory, the

soil and jurisdiction of which was already completely vested in the

United States, it was necessary that the Constitution should confer

upon Congress power to exercise the political jurisdiction of the

United States, power to dispose of the soil, and power to admit new

States that might be formed there into the Union. Secondly, with

reference to such cases as that of Vermont, it was necessary that

there should be a power to admit new States into the Union without

requiring the assent of any other State, when such new States were not

formed within the actual jurisdiction of any other State. Thirdly,

with reference to such cases as that of Kentucky, which would be

formed within the actual jurisdiction of another State, it was

necessary that the power to admit should be qualified by the condition

of the consent of that State. Fourthly, with reference to such

cessions as were expected to be made by North Carolina, South

Carolina, and Georgia, it was necessary to provide the power of

political government, the power to admit into the Union, and the power

to dispose of the soil, if the cessions should be made; and at the

same time to save the claims of the United States and of the

respective States as they then stood, if the cessions anticipated

should not be made. None of these cases, however, were specifically

mentioned in the Constitution, but general provisions were made, which

were adapted to meet the several aspects of these cases. From the

generality of these provisions, it is held by some that the clause

which relates to "the territory or other property of the United

States," was intended to be applied to all cessions of territory that

might ever be made to the United States, as well as to those which had

been made, or which were then specially anticipated; while others give

to the clause a much narrower application.[294]

There now remain to be considered the restraints imposed upon the

exercise of the powers of Congress, both within the States and in all

other places; both where the authority of the United States is limited

to certain special objects, and where it is unlimited and universal,

excepting so far as it is narrowed by these constitutional restraints.

Some of them I have already described, in tracing the manner in which

they were introduced into the Constitution. We have seen how far the

commercial and revenue powers became limited in respect to the

slave-trade, to taxes on exports, to preferences between the ports of

different States, and to the levying of capitation or other direct

taxes. These restrictions were applicable to these special powers. But

others were introduced, which apply to the exercise of all the powers

of Congress, and are in the nature of limitations upon its general

authority as a government.

One of these is embraced in the provision, "that the privilege of the

writ of habeas corpus shall not be suspended, unless when, in cases of

rebellion or invasion, the public safety may require it."[295] The

common law of England, which recognizes the right to the writ of

habeas corpus for the purpose of delivery from illegal imprisonment

or restraint, was the law of each of the American States; and it

appears from the proceedings of the Convention to have been the

purpose of this provision to recognize this right, in the relations of

the people of the States to the general government, and to secure and

regulate it. The choice lay between a declaration of the existence of

the right, making it inviolable and absolute, under all circumstances,

and a recognition of its existence by a provision which would admit of

its being suspended in certain emergencies. The latter course was

adopted, although three of the States recorded their votes against the

exception of cases of rebellion or invasion.[296]

The prohibition upon Congress to pass bills of attainder, or _ex post

facto_ laws, came into the Constitution at a late period, and while

the first draft of it was under consideration. Bills of attainder, in

the jurisprudence of the common law, are acts of legislation

inflicting punishment without a judicial trial. The proposal to

prohibit them was received in the Convention with unanimous assent.

With regard to the other class of legislative acts, described as "_ex

post facto_ laws," there was some difference of opinion, in

consequence probably of different views of the extent of the term. In

the common law, this expression included only, then and since, laws

which punish as crimes acts which were not punishable as crimes when

they were committed. Laws of a civil nature, retrospective in their

operation upon the civil rights and relations of parties, were not

embraced by this term, according to the definition of English jurists.

But it is manifest from what was said by different members, that, at

the time when the vote was taken which introduced this clause into the

Constitution, the expression "_ex post facto_ laws" was taken in its

widest sense, embracing all laws retrospective in their operation. It

was objected, therefore, that the prohibition was unnecessary, since,

upon the first principles of legislation, such laws are void of

themselves, without any constitutional declaration that they are so.

But experience had proved that, whatever might be the principles of

civilians respecting such laws, the State legislatures had passed

them, and they had been acted on. A large majority of the Convention

determined, therefore, to place this restraint upon the national

legislature, and at the time of the vote I think it evident that all

retrospective laws, civil as well as criminal, were understood to be

included.[297] But when the same restraint came afterwards to be

imposed upon the State legislatures, the attention of the assembly was

drawn to the distinction between criminal laws and laws relating to

civil interests. In order to reach and control retrospective laws

operating upon the civil rights of parties, when passed by a State, a

special description was employed to designate them, as "laws impairing

the obligation of contracts," and the term "_ex post facto_ laws" was

thus confined to laws creating and punishing criminal offences after

the acts had been committed.[298] What is now the settled

construction of this term, therefore, is in accordance with the sense

in which it was finally intended to be used by the framers of the

Constitution before the instrument passed from their hands.

The committee of detail had reported in their draft of the

Constitution a clause which restrained the United States from granting

any title of nobility. The Convention, for the purpose of preserving

all officers of the United States independent of external influence,

added to this a provision that no person holding an office of profit

or trust under the United States shall, without the consent of

Congress, accept of any present, emolument, office, or title, of any

kind whatever, from any king, prince, or foreign state.[299]

In addition to the special powers conferred by the Constitution upon

the national government, it has imposed certain restraints on the

political power of the States, which qualify and diminish what would

otherwise be the unlimited sovereignty of each of them. These

restraints are of two classes;--a part of them being designed to

remove all obstructions that might be placed by State legislation or

action in the way of the appropriate exercise of the powers vested in

the United States, and a part of them being intended to assimilate the

nature of the State governments to that of the Union, by the

application of certain maxims or rules of public policy. These

restraints may now be briefly examined, with reference to this

classification.

The idea of imposing special restrictions upon the power of the

separate States was not expressly embraced in the plan of government

described by the resolutions on which the committee of detail were

instructed to prepare the instrument of government. Such restrictions,

however, were not unknown to the previous theory of the Union. They

existed in the Articles of Confederation, where they had been

introduced with the same general purpose of withdrawing from the

action of the States those objects, which, by the stipulations of that

instrument, had been committed to the authority of the United States

in Congress. But the inefficacy of those provisions lay in the fact,

that they were the mere provisions of a theory. The step now proposed

to be taken was to superadd to the prohibitions themselves the

principle of their supremacy as matters of fundamental law, and to

enable the national judiciary to make that supremacy effectual.

Almost all the restraints imposed by the Articles of Confederation

upon the States could be removed or relaxed by the consent of the

Congress to the doing of what was otherwise prohibited. In the first

draught of the Constitution, the committee of detail inserted four

absolute prohibitions, which could not be removed by Congress itself.

These related to the coining of money, the granting of letters of

marque and reprisal, the making of treaties, alliances, and

confederations, and the granting of titles of nobility. All the other

restraints on the States were to be operative or inoperative,

according to the pleasure of Congress.[300] Among these were included

bills of credit; laws making other things than specie a tender in

payment of debts; the laying of imposts or duties on imports; the

keeping of troops or ships of war in time of peace; the entering into

agreements or compacts with other States, or with foreign powers; and

the engaging in war, when not invaded, or in danger of invasion before

Congress could be consulted. The enactment of attainder and _ex post

facto_ laws, and of laws impairing the obligation of contracts, was

not prohibited at all.

But when these various subjects came to be regarded more closely, it

was perceived that the list of absolute prohibitions must be

considerably enlarged. Thus the power of emitting bills of credit,

which had been the fruitful source of great evils, must either be

taken away entirely, or the contest between the friends and the

opponents of paper money would be transferred from the State

legislatures to Congress, if Congress should be authorized to sanction

the exercise of the power. Fears were entertained that an absolute

prohibition of paper money would excite the strenuous opposition of

its partisans against the Constitution; but it was thought best to

take this opportunity to crush it entirely; and accordingly the votes

of all the States but two were given to a proposition to prohibit

absolutely the issuing of bills of credit.[301] To the same class of

legislation belonged the whole of that system of laws by which the

States had made a tender of certain other things than coin legal

satisfaction of a debt. By placing this class of laws under the ban of

a strict prohibition, not to be removed by the consent of Congress in

any case, the mischiefs of which they had been a fruitful source would

be at once extinguished. This was accordingly done, by unanimous

consent.[302]

At this point, the kindred topic of the obligation of contracts

presented itself to the mind of Rufus King, suggested doubtless by a

provision in the Ordinance then recently passed by Congress for the

government of the Northwestern Territory.[303] The idea of a special

restraint on legislative power, for the purpose of rendering inviolate

the obligation of contracts, appears to have originated with Nathan

Dane, the author of that Ordinance. It was not embraced in the resolve

of 1784, reported by Mr. Jefferson, which contained the first scheme

adopted by Congress for the establishment of new States in the

Northwestern Territory; and it first appears in our national

legislation in the Ordinance of 1787. Its transfer thence into the

Constitution of the United States was a measure of obvious expediency,

and indeed of clear necessity. In the Ordinance, Congress had

provided a system of fundamental law, intended to be of perpetual

obligation, for new communities, whose legislative power was to be

moulded by certain original maxims of assumed justice and right. The

opportunity thus afforded for shaping the limits of political

sovereignty according to the requirements of a preconceived policy,

enabled the framers of the Ordinance to introduce a limitation, which

is not only peculiar to American constitutional law, but which, like

many features of our institutions, grew out of previous abuses.

In the old States of the Confederacy, from the time when they became

self-governing communities, the power of a mere majority had been

repeatedly exercised in legislation, without any regard to its effect

on the civil rights and remedies of parties to existing contracts. The

law of debtor and creditor was not only subjected to constant changes,

but the nature of the change depended in many of the States upon the

will of the debtor class, who formed the governing majority. So

pressing were the evils thus engendered, that, when the framers of the

Ordinance came to provide for the political existence of communities

whose institutions they were to dictate, they determined to impose an

effectual restraint on legislative power; and they accordingly

provided, in terms much more stringent than were afterwards employed

in the Constitution, that no law should have effect in the Territory

which should in any manner whatever interfere with or affect private

contracts or engagements previously made.[304]

The framers of the Constitution were not engaged in the same work of

creating new political societies, but they were to provide for such

surrenders by existing States of their present unquestioned

legislative authority, as the dictates of sound policy and the evils

of past experience seemed to require. When this subject was first

brought forward in the Convention, the restriction was made to embrace

all retrospective laws bearing upon contracts, which were supposed to

be included in the term "_ex post facto_ laws." It being ascertained,

however, that the latter phrase would not, in its usual acceptation,

extend to civil cases, it became necessary to consider how such cases

were to be provided for, and how far the prohibition should extend.

The provision of the Ordinance was regarded as too sweeping; no

legislature, it was said, ever did or can altogether avoid some

retrospective action upon the civil relations of parties to existing

contracts, and to require it would be extremely inconvenient. At

length, a description was found, which embodied the extent to which

the prohibition could with propriety be carried. The legislatures of

the States were restrained from passing any "law impairing the

obligation of contracts";--a provision that has been found amply

sufficient, and attended with the most salutary consequences, under

the interpretation that has been given to it.[305]

Bills of attainder and _ex post facto_ laws, which had not been

included in the prohibitions on the States by the committee of detail,

were added by the Convention to the list of positive restrictions,

which was thus completed.

In the class of conditional prohibitions, or those acts which might be

done by the States with the consent of Congress, the committee of

detail had placed the laying of "imposts or duties on imports." To

this the Convention added "exports," in order to make the restriction

applicable both to commodities carried out of and those brought into a

State. But this provision, as thus arranged, would obviously make the

commercial system extremely complex and inconvenient. On the one hand,

the power to lay duties on imports had been conferred upon the general

government, for the purposes of revenue, and to leave the States at

liberty, with the consent of Congress, to lay additional duties, would

subject the same merchandise to separate taxation by two distinct

governments. On the other hand, if the States should be deprived of

all power to lay duties on exports, they would have no means of

defraying the charges of inspecting their own productions. At the same

time, it was apparent that, under the guise of inspection laws, if

such laws were not to be subject to the revision of Congress, a State

situated on the Atlantic, with convenient seaports, could lay heavy

burdens upon the productions of other States that might be obliged to

pass through those ports to foreign markets. Again, if the States

should be deprived of all power to lay duties on imports, they could

not encourage their own manufactures; and if allowed to encourage

their own manufactures by such State legislation, it must operate not

only upon imports from foreign countries, but upon imports from other

States of the Union, which would revive all the evils that had flowed

from the want of general commercial regulations. To prevent these

various mischiefs, the Convention adopted three distinct safeguards.

They provided, first, by an exception, that the States might, without

the consent of Congress, lay such duties and imposts as "may be

absolutely necessary for executing their inspection laws"; second,

that the net produce of all duties and imposts laid by any State,

whether with or without the consent of Congress, shall be for the use

of the Treasury of the United States; third, that all such State laws,

whether passed with or without the previous consent of Congress, shall

be subject to the revision and control of Congress.[306] There is,

therefore, a twofold remedy against any oppressive exercise of the

State power to lay duties for purposes of inspection. The question

whether the particular duties exceed what is absolutely necessary for

the execution of an inspection law, may be made a judicial question;

and in addition to this, the law imposing the inspection duty is at

all times subject to the revision and control of Congress. Any

tendency to lay duties or imposts for purposes of revenue or

protection, is checked by the requirement that the net produce of all

duties or imposts laid by any State on imports or exports shall be

paid over to the United States, and such tendency may moreover be

suppressed by Congress at any time, by the exercise of its power of

revision and control.

In order to vest the supervision and control of the whole subject of

navigation in Congress, it was further provided that no State, without

the consent of Congress, shall lay any duty of tonnage. An exception,

proposed by some of the Maryland and Virginia members, with a view to

the situation of the Chesapeake Bay, illustrates the object of this

provision. They desired that the States might not be restrained from

laying duties of tonnage "for the purpose of clearing harbors and

erecting light-houses." It was perhaps capable of being contended,

that, as the regulation of commerce was already agreed to be vested in

the general government, the States were restrained by that general

provision from laying tonnage duties. The object of the special

restriction was, to make this point entirely certain; and the object

of the proposed exception was to divide the commercial power, and to

give the States a concurrent authority to regulate tonnage for a

particular purpose. But a majority of the States considered the

regulation of tonnage an essential part of the regulation of trade.

They adopted the suggestion of Mr. Madison, that the regulation of

commerce was, in its nature, indivisible, and ought to be wholly under

one authority. The exception was accordingly rejected.[307]

The same restriction, with the like qualification of the consent of

Congress, was applied to the keeping of troops or ships of war in time

of peace, entering into agreements or compacts with another State or a

foreign power, or engaging in war, unless actually invaded or in such

imminent danger as will not admit of delay.[308]

FOOTNOTES:

[232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V.

378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards

referred the subject of the militia. See _infra_.

[236] August 21. Elliot, V. 451.

[237] August 22. Ibid. 462.

[238] See the proceedings which took place, August 22, 24, and 25.

Elliot, V. 462, 463, 464, 471, 475-477.

[239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as

being unnecessary, was disagreed to"; that is, unnecessary as a

security of the _old debts_ of the United States.

[240] Ibid. 506, 507.

[241] Elliot, V. 478, 479.

[242] Constitution, Art. I. §9. See the proceedings which took place

on the proposition of the Maryland delegates. Elliot, V. 478, 479,

483, 502, 545.

[243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1.

[244] Elliot, V. 439.

[245] Ibid. 506, 507.

[246] Ibid. 434. Journal, Elliot, I. 245.

[247] See the debate, and Mr. Madison's explanation of his vote,

Elliot, V. 434, 435, and the note on the latter page.

[248] Constitution, Art. I. § 8, clause 9.

[249] Ibid., clause 11.

[250] Elliot, V. 436.

[251] That is to say, it is the same crime, committed on the high

seas, that is denominated robbery when committed on the land.

[252] Madison, Elliot, V. 436, 437.

[253] In the clause as it passed the Convention, the offence of

_counterfeiting_ was placed with the other crimes which Congress was

to "define" and "punish"; but, on the revision of the Constitution,

counterfeiting was placed in a separate clause, under the term "to

provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10.

[254] Elliot, V. 438, 439.

[255] Elliot, V. 440, 510, 511.

[256] Ibid. 442.

[257] Ibid. 443.

[258] Ibid. 440.

[259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12.

[260] Elliot, V. 443.

[261] Art. VII. § 1 of the first draft. Elliot, V. 379.

[262] Ibid. 440.

[263] Aug 18. Elliot, V. 445.

[264] Constitution, Art. I § 8, cl. 16.

[265] Art. I. § 8, cl. 15. Ibid. p. 467.

[266] Constitution, Art. I. § 8, cl. 18.

[267] Elliot, V. 447.

[268] See the statutes of Massachusetts and Connecticut, &c. cited in

Curtis on Copyright, pp. 77, 78, 79.

[269] _Ante_, Chap. IX.

[270] Elliot, V. 510, 511, 512.

[271] _Ante_, Vol. I. Book III. ch. 5, p. 291 _et seq._

[272] Resolve of October 10, 1780. Journals, VI. 325.

[273] Resolve of April 23, 1784. Journals, IX. 153.

[274] March 16, 1785. Journals, X. 79. See _ante_, Vol. I. p. 299.

[275] See the note on the authorship of the Ordinance of 1787, in the

Appendix to this volume.

[276] _Ante_, Chap. IV. p. 77, note.

[277] See the proceedings concerning Kentucky, in 1788. Journals,

XIII. 16, 32, 51, 52, 55.

[278] The Federalist, No. 38.

[279] The passage quoted from Mr. Jefferson, _ante_, p. 77, also shows

that strong doubts were felt in Congress, in 1784, respecting their

power to admit new States formed out of unoccupied territory. Indeed,

the whole of the proceedings upon Mr. Jefferson's measure of April 23,

1784, show that the powers of Congress over the territory that had

been acquired under the cession of Virginia were very variously

regarded by the different delegates. See Journals, IX. 138-156. The

State of South Carolina voted against the resolve on its final

passage, and after it had been modified to meet some of the objections

raised.

[280] I think we are to understand Mr. Madison's assertion in the

Federalist,--that what had been done by Congress in relation to the

Northwestern Territory was without constitutional authority,--to mean,

that it had been done without the authority of any proper

constitutional provision. Mr. Madison himself, being a member of

Congress in 1783, voted for the acceptance of a report, by the

adoption of which Congress settled the conditions on which the cession

of Virginia was to be received by the United States. These conditions

embraced the whole of the three fundamental points, that the territory

should be held and disposed of for the common benefit of the United

States, that it should be divided into States, and that those States

should be admitted into the Union. So that Mr. Madison was a party to

the arrangement by which Congress undertook to hold out these promises

to the States. (Journals of Congress for September 13, 1783, VIII.

355-359.) But he was not a member of Congress in 1784, when Mr.

Jefferson's measure was adopted; and although he was a member in 1787,

when the Ordinance was adopted, he was at that time in attendance upon

the national Convention, and consequently never voted upon the

Ordinance. His participation in the proceedings of the Convention, by

which the necessary power was created, shows his sense of its

necessity.

[281] See especially the cession by Virginia, of March 1, 1784.

Journals of Congress, IX. 67. Cession by Massachusetts, April 19,

1785. Journals, X. 128. Cession by Connecticut, September 13, 1786.

Journals, XI. 221. Also the resolve of Congress passed, in

anticipation of these cessions, October 10, 1780. Journals, VI. 325.

[282] Resolution 10. Madison, Elliot, V. 128.

[283] Art. XVII. of the draft prepared by the committee of detail.

Elliot, V. 381.

[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a

recommitment for the purpose of asserting in the Constitution the

right of the United States to the lands ceded by Great Britain in the

treaty of peace. New Jersey, Delaware, and Maryland alone voted for

the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_.

[291] When the Constitution was finally revised, the word "hereafter"

was left out of the first clause of the third section of article

fourth, apparently because the phraseology of the clause was

sufficient, without it, to save the case of Vermont, which was

regarded as not being within the "_jurisdiction_," although it was

within the asserted _limits_, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, title,

interest, jurisdiction, and claim" to the "territory or tract of

country" lying, within certain northern and southern limits, between

the western boundary of that State and the river Mississippi, was in

fact made and accepted in Congress, August 9-10, 1787, twenty days

before the territorial clause was finally settled in the Convention,

which took place August 30. (Journals of the Old Congress, XII.

129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the

same year, the Congress passed a resolution urging the States of North

Carolina and Georgia to cede their Western claims. This request was

not complied with until after the Constitution had gone into

operation. The cession of North Carolina was made February 25, 1790;

that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this

question. I have recently had occasion professionally to maintain that

the territorial clause is applicable to all territorial cessions made

to the United States, whether by States of the Union or by foreign

States, and that it clothes the government with a full legislative

power over such territories and their inhabitants, which is subject

only to the particular restrictions enumerated in the Constitution.

Perhaps it is needless for me to add that I entertain this opinion.

But it is rejected by others, and, in the present state of judicial

interpretation of this part of the Constitution, by the supreme

tribunal, it is not easy to determine what will finally become the

settled construction.

[295] Constitution, Art. I. § 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South

Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Constitution, Art. I. § 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was passed July 13, was published at length

in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on

the 25th of July (1787). Mr. King's motion was made August 28, and is

described by Mr. Madison as a motion "to add, in the words used in the

Ordinance of Congress establishing new States, a prohibition on the

States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452,

note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.

CHAPTER XII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE

NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON.

Among the resolutions sent to the committee, there were four which had

reference to the supremacy of the government of the United States.

They declared that it ought to consist of a supreme legislative,

executive, and judiciary;--that its laws and treaties should be the

supreme law of the several States, so far as they related to the

States or their citizens and inhabitants, and that the judiciaries of

the States should be bound by them, even against their own laws;--that

the officers of the States, as well as of the United States, should be

bound by oath to support the Articles of Union;--and that the question

of their adoption should be submitted to assemblies of representatives

to be expressly chosen by the people of each State under the

recommendation of its legislature.[309]

In order to give effect to these precise and stringent directions, the

committee of detail introduced into their draft of a constitution a

preamble; two articles asserting and providing for the supremacy of

the national government; a provision for the oath of officers; and a

declaration of the mode in which the instrument was intended to be

ratified.

The preamble of the Constitution, as originally reported by this

committee, differed materially from that subsequently framed and

adopted. It spoke in the name of the people of the States of New

Hampshire, Massachusetts, &c., who were said "to ordain, declare, and

establish this Constitution for the government of ourselves and our

posterity"; and it stated no special motives for its establishment. In

this form it was unanimously adopted on the 7th of August. But when,

at a subsequent period, the instrument was sent to another committee,

whose duty it was to revise its style and arrangement, this

phraseology was changed, and the preamble was made to speak in the

name of the people of the United States, and to declare the purposes

for which _they_ ordained and established the Constitution.[310] The

language thus employed in the preamble has justly been considered as

having an important connection with the provisions made for the

ratification of the instrument to which it was prefixed.

The articles specially designed to assert and carry out the supremacy

of the national government, as they came from the committee, embodied

the resolutions on the same subject which had passed the Convention.

The only material addition consisted in the qualification, that the

legislative acts of the United States, which were to be the supreme

law, were such as should be made in pursuance of the Constitution.

Subsequently, the article was so amended as to make the Constitution,

the laws passed in pursuance of it, and the treaties of the United

States, the supreme law of the land, binding upon all judicial

officers.[311]