History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 / With Notices of Its Principle Framers

by George Ticknor Curtis

CHAPTER IX.

Report of the Committee of Detail.—Construction of the Legislature.—Time and Place of its Meeting.

Having now reached that stage in the process of framing the Constitution at which certain principles were confided to a committee of detail, the reader will now have an opportunity to observe the farther development and application of those principles, the mode in which certain chasms in the system were supplied, and the final arrangements which produced the complete instrument that was submitted to the people of the United States for their adoption.

Great power was necessarily confided to a committee, to whom was intrusted the first choice of means and of terms that were to give practical effect to the principles embraced in the resolutions of the Convention. There might be a substantial compliance with the intentions previously indicated by the debates and votes of the Convention, and at the same time the mode in which those intentions should be carried out by the committee might require a new consideration of the subjects involved. Hence it is important to pursue the growth of the Constitution through the entire proceedings.

The committee of detail presented their report on the 6th of August, in the shape of a Constitution divided into three-and-twenty Articles. It is not my purpose to examine this instrument in the precise order of its various provisions, or to describe all the discussions which took place upon its minute details. It is more consonant with the general purpose of this history, to group together the different features of the Constitution which relate to the structure and powers of the different departments and to the fundamental purposes of the new government.[130]

In accordance with the previous decisions of the Convention, the committee of detail had provided that the legislative power of the United States should be vested in a Congress, to consist of two branches, a House of Representatives and a Senate, each of which should have a negative on the other. But as to the persons by whom the members of the national legislature were to be appointed, no decision had been made in the Convention, excepting that the members of the House were to be chosen by the people of the States, and the members of the Senate by their legislatures. Nothing had been settled respecting the qualifications of the electors of representatives; nor had the qualifications of the members of either branch been determined.[131] Two great questions, therefore, remained open; first, with what class of persons was the election of members of the popular branch of the legislature to be lodged; secondly, what persons were to be eligible to that and to the other branch. In substance, these questions resolved themselves into the inquiry, in whom was the power of governing America to be vested; for it is to be remembered that, according to a decision of the Convention not yet reversed, the national executive was to be chosen by the national legislature.

So far as the people of the United States had evinced any distinct purpose, at the time when this Convention was assembled, it appeared to be well settled that the new system of government, whatever else it might be, should be republican in its form and spirit. When the States had assembled in Convention, it became the result of a necessary compromise between them, that the appointment of one branch of the legislature should be vested in the people of the several States. But who were to be regarded as the people of a State, for this purpose, was a question of great magnitude, now to be considered.

The situation of the country, in reference to this as well as to many other important questions, was peculiar. The streams of emigration, which began to flow into it from Europe at the first settlement of the different Colonies, had been interrupted only by the war of the Revolution. On the return of peace, the tide of emigration again began to set towards the new States, which had risen into independent existence on the western shores of the Atlantic by a struggle for freedom that had attracted the attention of the whole civilized world; and when the Constitution of the United States was about to be framed, large and various classes of individuals in the different countries of Europe were eagerly watching the result of the experiment. It appeared quite certain that great accessions of population would follow the establishment of free institutions in America, if they should be framed in a liberal and comprehensive spirit. It became necessary, therefore, to meet and provide for the presence in the country of great masses of persons not born upon the soil, who had not participated in the efforts by which its freedom had been acquired, and who would bring with them widely differing degrees of intelligence and of fitness to take part in the administration of a free government. The place that was to be assigned to these persons in the political system of the country was a subject of much solicitude to its best and most thoughtful statesmen.

On the one hand, all were aware that there existed among the native populations of the States a very strong American feeling, engendered by the war, and by the circumstances attending its commencement, its progress, and its results. It was a war begun and prosecuted for the express purpose of obtaining and securing, for the people who undertook it, the right of self-government. It necessarily created a great jealousy of foreign influence, whether exerted by governments or individuals, and a strong fear that individuals would be made the agents of governments in the exercise of such influence. The political situation of the country under the Confederation had increased rather than diminished these apprehensions. The relations of the States with each other and with foreign nations, under a system which admitted of no efficient national legislation binding upon all alike, afforded, or were believed to afford, means by which the policy of other countries could operate on our interests with irresistible force.

There was, therefore, among the people of the United States, and among their statesmen who were intrusted with the formation of the Constitution, a firmly settled determination, that the institutions and legislation of the country should be effectually guarded against foreign control or interference.

On the other hand, it was extremely important that nothing should be done to prevent the immigration from Europe of any classes of men who were likely to become useful citizens. The States which had most encouraged such immigration had advanced most rapidly in population, in agriculture, and the arts. There were, too, already in the country many persons of foreign birth, who had thoroughly identified themselves with its interests and its fate, who had fought in its battles, or contributed of their means to the cause of its freedom; and some of these men were at this very period high in the councils of the nation, and even occupied places of great importance in the Convention itself.[132] They had been made citizens of the States in which they resided, by the State power of naturalization; and they were in every important sense Americans. It was impossible, therefore, to adopt a rule that would confine the elective franchise, or the right to be elected to office, to the native citizens of the States. The States themselves had not done this; and the institutions of the United States could not rest on a narrower basis than the institutions of the States.

Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State constitutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Constitution. In some of the States, the right of voting was confined to "freeholders"; in others,—and by far the greater number,—it was extended beyond the holders of landed property, and included many other classes of the adult male population; while in a few, it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequence, therefore, of adopting any separate system of qualifications for the right of voting under the Constitution of the United States would have been, that, in some of the States, there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State constitution might have enjoyed it in national elections.

This embarrassment, however, did not extend to the qualifications which it might be thought necessary to establish for the right of being elected to office under the general government. As the State and the national governments were to be distinct systems, and the officers of each were to exercise very different functions, it was both practicable and expedient for the Constitution of the United States to define the persons who should be eligible to the offices which it created.

At the same time, in relation to both of these rights—that of electing and that of being elected to national offices—it was highly necessary that the national authority, either by direct provision of the Constitution, or by a legislative power to be exercised under it, should determine the period when the rights of citizenship could be acquired by persons of foreign birth. From the first establishment of the State governments down to the present period, those governments had possessed the power of naturalization. Their rules for the admission of foreigners to the privileges of citizenship were extremely unlike; and if the power of prescribing the rule were to be left to them, and the Constitution of the United States were to adopt the qualifications of voters fixed by the laws of the States, or were to be silent with respect to the qualifications of its own officers, the rights both of electing and of being elected to national office would, in respect to citizenship, be regulated by no uniform principle. If, therefore, the right of voting for any class of federal officers were to be in each State the same as that given by the State laws for the election of any class of State officers, it was quite essential that the States should surrender to the general government the power to determine, as to persons of foreign birth, what period of residence in the country should be required for the rights of citizenship. It was equally necessary that the national government should possess this power, if it was intended that citizenship should be regarded at all in the selection of those who were to fill the national offices.

The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own legislatures, should have the right to vote for the representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the circumstances and temper of their own people, it was certainly best to conciliate them to the support of the new Constitution by this concession. It was possible, indeed, but not very probable, that they might admit foreigners to the right of voting without the previous qualification of citizenship. It was possible, too, that they might establish universal suffrage in its most unrestricted sense. But against all these evils there existed one great security; namely, that the mischiefs of an absolutely free suffrage would be felt most severely by themselves in their domestic concerns; and against the special danger to be apprehended from the indiscriminate admission of foreigners to the right of voting, another feature of the proposed plan gave the national legislature power to withhold from persons of foreign birth the privileges of general citizenship, although a State might confer upon them the power of voting without previous naturalization.

This part of the scheme consisted in the transfer of the power of naturalization to the general government; a power that was necessarily made exclusive, by being made a power to establish a uniform rule on the subject.

These provisions were not only necessary in the actual situation of the States, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. In that branch the people of each State were to be represented; but they were to remain the people of a distinct community, whose modes of exercising the right of self-government would be peculiar to themselves; and that would obviously be the most successful representation of such a people in a national assembly, which most conformed itself to their habits and customs in the organization of their own legislative bodies. Accordingly, although very strenuous efforts were made to introduce into the Constitution of the United States particular theories with regard to popular suffrage,—some of the members being in favor of one restriction and some of another,—the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention. But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States in respect to the political rights to be conceded to persons not natives of the country.[133]

As we have already seen, the committee of detail had been instructed to report qualifications of property and citizenship for the members of every department of the government. But they found the subject so embarrassing, that they contented themselves with providing that the legislature of the United States should have authority to establish such uniform qualifications for the members of each house, with regard to property, as they might deem expedient.[134] They introduced, however, into their draft of a Constitution, an express provision that every member of the House of Representatives should be of the age of twenty-five years at least, should have been a citizen of the United States for at least three years before his election, and should be, at the time of his election, a resident in the State in which he might be chosen.[135]

A property qualification for the members of the House of Representatives was a thing of far less consequence than the fact of citizenship. Indeed, there might well be a doubt, whether a requisition of this kind would not be in some degree inconsistent with the character that had already been impressed upon the government, by the compromise which had settled the nature of the representation in the popular branch. It was to be a representation of the people of the States; and as soon as it was determined that the right of suffrage in each State should be just as broad as the legislative authority of the State might see fit to make it, the basis of the representation became a democracy, without any restrictions save those which the people of each State might impose upon it for themselves. If then the Constitution were to refrain from imposing on the electors a property qualification, for the very purpose of including all to whom the States might concede the right of voting within their respective limits, thus excluding the idea of a special representation of property, it was certainly not necessary to require the possession of property by the representatives, or to clothe the national legislature with power to establish such a qualification. The clause reported by the committee of detail for this purpose was accordingly left out of the Constitution.[136]

But with respect to citizenship, as a requisite for the office of a representative or a senator, very different considerations applied. With whatever degree of safety the States might be permitted to determine who should vote for a representative in the national legislature, it was necessary that the Constitution itself should meet and decide the grave questions, whether persons of foreign birth should be eligible at all, and if so, at what period after they had acquired the general rights of citizens. It seems highly probable, from the known jealousies and fears that were entertained of foreign influence, that the eligibility to office would have been strictly confined to natives, but for a circumstance to which allusion has already been made. The presence of large numbers of persons of foreign birth, who had adopted, and been adopted by, some one of the States, who stood on a footing of equality with the native inhabitants, and some of whom had served the country of their adoption with great distinction and unsuspected fidelity, was the insuperable obstacle to such a provision. The objection arising from the impolicy of discouraging future immigration had its weight; but it had not the decisive influence which was conceded to the position of those foreigners already in the country and already enjoying the rights of citizenship under the laws and constitutions of the several States. That men should be perpetually ineligible to office under a constitution which they had assisted in making, could not be said to be demanded by the people of America.

The subject, therefore, was found of necessity to resolve itself into the question, what period of previous citizenship should be required. The committee of detail proposed three years. Other members desired a much longer period. Hamilton, on the other hand, supported by Madison, proposed that no definite time should be established by the Constitution, and that nothing more should be required than citizenship and inhabitancy. He thought that the discretionary power of determining the rule of naturalization would afford the necessary means of control over the whole subject. But this plan did not meet the assent of a majority of the States, and, after various periods had been successively rejected, the term of seven years' citizenship as a qualification of members of the House of Representatives was finally established.

But was this qualification to apply to those foreigners who were then citizens of the States, and who, as such, would have the right to vote on the acceptance of the Constitution? Were they to be told that, although they could ratify the Constitution, they could not be eligible to office under it, until they had enjoyed the privileges of citizenship for seven years? They had been invited hither by the liberal provisions of the State institutions; they had been made citizens by the laws of the State where they resided; the Articles of Confederation gave them the privileges of citizens in every other State; and thus the very communities by which this Convention had been instituted were said to have pledged their public faith to these persons, that they should stand upon an equality with all other citizens. It is a proof that their case was thought to be a strong one, and it is a striking evidence of the importance attached to the principles involved, that an effort was made to exempt them from the operation of the rule requiring a citizenship of seven years, and that it was unsuccessful.[137]

It is impossible now to determine how numerous this body of persons were, in whose favor the attempt was made to establish an exception to the rule; and their numbers constitute a fact that is now historically important only in its bearing upon a principle of the Constitution. From the arguments of those who sought to introduce the exception, it appears that fears were entertained that the retrospective operation of the rule would expose the acceptance of the Constitution to great hazards; for the States, it was said, would be reduced to the dilemma of rejecting it, or of violating the faith pledged to a part of their citizens. Accordingly, the implied obligation of the States to secure to their citizens of foreign birth the same privileges with natives was urged with great force, and it was inferred from the notorious inducements that had been held out to foreigners to emigrate to America, and to avail themselves of the easy privileges of citizenship. Whether the United States were in any way bound to redeem these alleged pledges of the States, was a nice question of casuistry, that was a good deal debated in the discussion. But in truth there was no obligation of public faith in the case, the disregard of which could be justly made a matter of complaint by anybody. When the States had made these persons citizens, and through the Articles of Confederation had conferred upon them the privileges of citizens in every State in the Union, they did not thereby declare that such adopted citizens should be immediately eligible to any or all of the offices under any new government which the American people might see fit to establish at any future time. To have said that they never should be eligible, would have been to establish a rule that would have excluded some of the most eminent statesmen in the country. But the period in their citizenship when they should be made eligible, was just as much an open question of public policy, as the period of life at which all native and all adopted citizens should be deemed fit to exercise the functions of legislators. If the citizen of foreign birth was disfranchised by the one requirement, the native citizen was equally disfranchised by the other, until the disability had ceased. The question was decided, therefore, and rightly so, upon large considerations of public policy; and the principal reasons that exercised a controlling influence upon the decision, and caused the refusal to establish any exception to the rule, afford an interesting proof of the national tone and spirit that were intended to be impressed upon the government at the beginning of its history.

It was quite possible, as all were ready to concede, that the time might arrive, when the qualification of so extended a period of citizenship as seven years might not be practically very important; since the people, after having been long accustomed to the duty of selecting their representatives, would not often be induced to confer their suffrages upon a foreigner recently admitted to the position of a citizen. The mischiefs, too, that might be apprehended from such appointments would be far less, after the policy of the government had been settled and the fundamental legislation necessary to put the Constitution into activity had been accomplished. But the first Congress that might be assembled under the Constitution would have a work of great magnitude and importance to perform. Indeed, the character which the government was to assume would depend upon the legislation of the few first years of its existence. Its commercial regulations would then be mainly determined. The relations of the country with foreign nations, its position towards Europe, its rights and duties of neutrality, its power to maintain a policy of its own, would all then be ascertained and settled. Nothing, therefore, could be more important, than to prevent persons having foreign attachments from insinuating themselves into the public councils; and with this great leading object in view, the Convention refused, though by a mere majority only of the States, to exempt from the rule those foreigners who had been made citizens under the naturalization laws of the States.[138]

Thus it appears that the Constitution of the United States discloses certain distinct purposes with reference to the participation of foreigners in the political concerns of the country. In the first place, it was clearly intended that there should be no real discouragement to immigration. The position and history of the country from its first settlement, its present and prospective need of labor and capital, its territorial extent, and the nature of its free institutions, were all inconsistent with any policy that would prevent the redundant population of Europe from finding in it an asylum. Accordingly, the emigrant from foreign lands was placed under no perpetual disqualifications. The power of naturalization that was conferred upon the general government, and the accompanying circumstances attending its transfer by the States, show an intention that some provision should be made for the admission of emigrants to the privileges of citizenship, and that in this respect the inducements to a particular residence should be precisely equal throughout the whole of the States. The power was not to remain dormant, under ordinary circumstances, although there might undoubtedly be occasions when its exercise should be suspended. The intention was, that the legislature of the United States should always exercise its discretion on the subject; but the existence of the power, and the reasons for which it was conferred, made it the duty of the legislature to exercise that discretion according to the wants of the country and the requirements of public policy.

In the second place, it is equally clear that the founders of the government intended that there should be a real, as well as formal, renunciation of allegiance to the former sovereign of the emigrant,—a real adoption, in principle and feeling, of the new country to which he had transferred himself,—an actual amalgamation of his interests and affections with the interests and affections of the native population,—before he should have the power of acting on public affairs. This is manifest, from the discretionary authority given to Congress to vary the rule of naturalization from time to time as circumstances might require,—an authority that places the States under the necessity of restricting their right of suffrage to citizens, if they would avoid the evils to themselves of an indiscriminate exercise of that right by all who might choose to claim it. The period of citizenship, too, that was required as a qualification for a seat in the popular branch of the government, and which was extended to nine years for the office of senator, was placed out of the discretionary power of change by the legislature, in order that an additional term, beyond that required for the general rights of citizenship, might for ever operate to exclude the dangers of foreign predilections and an insufficient knowledge of the duties of the station.

No one who candidly studies the institutions of America, and considers what it was necessary for the founders of our government to foresee and provide for, can hesitate to recognize the wisdom and the necessity of these provisions. A country of vast extent opened to a boundless immigration, which nature invited and which man could scarcely repel,—a country, too, which must be governed by popular suffrage,—could not permit its legislative halls to be invaded by foreign influence. The independence of the country would have been a vain and useless achievement, if it had not been followed by the practical establishment of the right of self-government by the native population; and that right could be secured for their posterity only by requiring that foreigners, who claimed to be regarded as a part of the people of the country, should be first amalgamated in spirit and interest with the mass of the nation.

No other changes were made in the proposed qualifications for the representatives, excepting to require that the person elected should be an inhabitant of the State for which he might be chosen, at the time of election, instead of being a resident. This change of phraseology was adopted to avoid ambiguity; the object of the provision being simply to make the representation of the State a real one.

The Convention, as we have seen, had settled the rule for computing the number of inhabitants of a State, for the purposes of representation, and had made it the same with that for apportioning direct taxes among the States.[139] The committee of detail provided that there should be one representative for every forty thousand inhabitants, when Congress should find it necessary to make a new apportionment of representatives; a ratio that had not been previously sanctioned by a direct vote of the Convention, but which had been recommended by the committee of compromise, at the time when the nature of the representation in both houses was adjusted.[140] This ratio was now adopted in the article relating to the House of Representatives; but not before an effort was made to exclude the slaves from the enumeration.[141] The renewed discussion of this exciting topic probably withdrew the attention of members from the consideration of the numbers of the representatives, and nothing more was done, at the time we are now examining, than to make a provision that the number should not exceed one for every forty thousand inhabitants. But at a subsequent stage of the proceedings,[142] before the Constitution was sent to the committee of revision, Wilson, Madison, and Hamilton endeavored to procure a reconsideration of this clause, for the purpose of establishing a more numerous representation of the people. Hamilton, who had always and earnestly advocated the introduction of a strong democratic element into the Constitution, although he desired an equally strong check to that element in the construction of the Senate, is represented to have expressed himself with great emphasis and anxiety respecting the representation in the popular branch. He avowed himself, says Mr. Madison, a friend to vigorous government, but at the same time he held it to be essential that the popular branch of it should rest on a broad foundation. He was seriously of opinion, that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties.[143]

But the motion to reconsider was lost,[144] and it was not until the Constitution had been engrossed, and was about to be signed, that an alteration was agreed to, at the suggestion of Washington. This was the only occasion on which he appears to have expressed an opinion upon any question depending in the Convention. With the habitual delicacy and reserve of his character, he had confined himself strictly to the duties of a presiding officer, throughout the proceedings. But now, as the Constitution was likely to go forth with a feature that would expose it to a serious objection, he felt it to be his duty to interpose. But it was done with great gentleness. As he was about to put the question, he said that he could not forbear expressing his wish that the proposed alteration might take place. The smallness of the proportion of representatives had been considered by many members, and was regarded by him, as an insufficient security for the rights and interests of the people. Late as the moment was, it would give him much satisfaction to see an amendment of this part of the plan adopted. The intimation was enough; no further opposition was offered, and the ratio was changed to one representative for thirty thousand inhabitants.[145]

It is now necessary to trace the origin of a peculiar power of the House of Representatives, that is intimately connected with the practical compromises on which the government was founded, although the circumstances and reasons of its introduction into the Constitution are not generally understood. I refer to the exclusive power of originating what are sometimes called "money bills." In making this provision, the framers of our government are commonly supposed to have been guided wholly by the example of the British constitution, upon an assumed analogy between the relations of the respective houses in the two countries to the people and to each other. This view of the subject is not wholly correct.

At an early period in the deliberations, when the outline of the Constitution was prepared in a committee of the whole, a proposition was brought forward to restrain the Senate from originating money bills, upon the ground that the House would be the body in which the people would be the most directly represented, and in order to give effect to the maxim which declares that the people should hold the purse-strings. The suggestion was immediately encountered by a general denial of all analogy between the English House of Lords and the body proposed to be established as the American Senate. In truth, as the construction of the Senate then stood in the resolutions agreed to in the committee of the whole, the supposed reason for the restriction in England would have been inapplicable; for it had been voted that the representation in the Senate should be upon the same proportionate rule as that of the House, although the members of the former were to be chosen by the legislatures, and the members of the latter by the people, of the States. It was rightly said, therefore, at this time, that the Senate would represent the people as well as the House; and that if the reason in England for confining the power to originate money bills to the House of Commons was that they were the immediate representatives of the people, the reason had no application to the two branches proposed for the Congress of the United States.[146] It was however admitted, that, if the representation in the Senate should not finally be made a proportionate representation of the people of the several States, there might be a cause for introducing this restriction.[147] This intimation referred to a reason that subsequently became very prominent. But when first proposed, the restriction was rejected in the committee by a vote of seven States against three; there being nothing involved in the question at that time excepting the theoretical merits of such a distinction between the powers of the two houses.[148]

But other considerations afterwards arose. When the final struggle came on between the larger and the smaller States, upon the character of the representation in the two branches, the plan of restricting the origin of money bills to the House of Representatives presented itself in a new aspect. The larger States were required to concede an equality of representation in the Senate; and it was supposed, therefore, that they would desire to increase the relative power of the branch in which they would have the greatest numerical strength. The five States of Massachusetts, Pennsylvania, Virginia, North Carolina, and South Carolina had steadily resisted the equality of votes in the Senate. When it was at length found that the States were equally divided on this question, and it became necessary to appoint the first committee of compromise, the smaller States tendered to the five larger ones the exclusive money power of the House, as a compensation for the sacrifice required of them. It was so reported by the committee of compromise; and although it met with resistance in the Convention, and was denied to be a concession of any importance to the larger States, it was retained in the report,[149] and thus formed a special feature of the resolutions sent to the committee of detail. But those resolutions had also established the equality of representation in the Senate, and the whole compromise, with its several features, had therefore been once fully ascertained and settled. A strong opposition, nevertheless, continued to be made to the exclusive money power of the House, by those who disapproved of it on its merits; and when the article by which it was given in the reported draft prepared by the committee of detail was reached, it was stricken out by a very large vote of the States.[150] In this vote there was a concurrence of very opposite purposes on the part of the different States composing the majority. New Jersey, Delaware, and Maryland, for example, feeling secure of their equality in the Senate, were not unwilling to allow theoretical objections to prevail, against the restriction of money bills to the branch in which they would necessarily be outnumbered. On the other hand, some of the delegates of Pennsylvania, Virginia, and South Carolina, still unwilling to acquiesce in the equality of representation in the Senate, may have hoped to unhinge the whole compromise. There was still a third party among the members, who insisted on maintaining the compromise in all its integrity, and who considered that the nature of the representation in the Senate, conceded to the wishes of the smaller States, rendered it eminently fit that the House alone should have the exclusive power to originate money bills.[151]

This party finally prevailed. They rested their first efforts chiefly upon the fact that the Senate was to represent the States in their political character. Although it might be proper to give such a body a negative upon the appropriations to be made by the representatives of the people, it was not proper that it should tax the people. They first procured a reconsideration of the vote which had stricken out this part of the compromise. They then proposed, in order to avoid an alleged ambiguity, that bills for raising money for the purpose of revenue, or appropriating money, should originate in the House, and should not be so amended or altered in the Senate as to increase or diminish the sum to be raised, or change the mode of levying it, or the object of its appropriation.[152] An earnest and somewhat excited debate followed this proposition, but it was lost.[153]

In a day or two, however, another effort was made, conceding to the Senate the power to amend, as in other cases, but confining the right to the House of originating bills for raising money for the purpose of revenue, or for appropriating the same, and for fixing the salaries of officers of the government.[154]

This new proposition was postponed for a long time, until it became necessary to refer several topics not finally acted upon to a committee of one member from each State.[155] Among these subjects there was one that gave rise to protracted conflicts of opinion, which will be examined hereafter. It related to the mode of choosing the executive. In the plan reported by the committee of detail, pursuant to the instructions of the Convention, the executive was to be chosen by the national legislature, for a period of seven years, and was to be ineligible a second time. Great efforts were subsequently made to change both the mode of appointment and the tenure of the office, and the whole subject was finally referred with others to a committee. In this committee, a new compromise, which has attracted but little attention, embraced the long-contested point concerning the origin of money bills. In this compromise, as in so many of the others on which the Constitution was founded, two influences are to be traced. There were in the first place what may be called the merits of a proposition, without regard to its bearing on the interests of particular States; and in the second place there were the local or State interests, which entered into the treatment of every question by which they could be affected. In studying the compromises of the Constitution, it is constantly necessary to observe how the arrangement finally made was arrived at by the concurrence of votes given from these various motives.

It was now proposed in the new committee, that the executive should be chosen by electors, appointed by each State in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; that the person having the greatest number of votes, provided it were a majority of the electors, should be declared elected; that if there should be more than one having such a majority, the Senate should immediately choose one of them by ballot; and that if no person had a majority, the Senate should immediately choose by ballot from the five highest candidates on the list returned by the electors. This plan of vesting the election in the Senate, in case there should be no choice by the electors, was eagerly embraced by the smaller States, because it was calculated to restore to them the equilibrium which they would lose in the primary election, by the preponderance of votes held by the larger States. At the same time, it gave to the larger States great influence in bringing forward the candidates, from whom the ultimate choice must be made, when no choice had been effected by the electors; and it put it in their power, by a combination of their interests against those of the smaller States, to choose their candidate at the first election. To this great influence, many members from the larger States desired, naturally, to add the privilege of confining the origin of revenue bills to the House of Representatives. They found in the committee some members from the smaller States willing to concede this privilege, as the price of an ultimate election of the executive by the Senate, and of other arrangements which tended to elevate the tone of the government, by increasing the power and influence of the Senate. They found others also who approved of it upon principle. The compromise was accordingly effected in the committee, and in this attitude the question concerning revenue bills again came before the Convention.[156]

But there, a scheme that seemed likely to elevate the Senate into a powerful oligarchy, and that would certainly put it in the power of seven States, not containing a third of the people, to elect the executive, when there failed to be a choice by the electors, met with strenuous resistance. For these and other reasons, not necessary to be recounted here, the ultimate choice of the executive was transferred from the Senate to the House of Representatives.[157] This change, if coupled with the concession of revenue bills to the House, without the right to amend in the Senate, would have thrown a large balance of power into the former assembly; and in order to prevent this inequality, a provision was made, in the words used in the Constitution of Massachusetts, that the Senate might propose or concur with amendments, as on other bills. With this addition, the restriction of the origin of bills for raising revenue to the House of Representatives finally passed, with but two dissentient votes.[158]

The qualifications of the Senators had been made superior in some respects to those of the members of the House of Representatives, on account of the peculiar duties which it was intended they should discharge, and the length of their term of office. They were to be of the age of thirty years; to be inhabitants of the States for which they might be chosen; and in the report of the committee of detail the period of four years' citizenship was made one of the requirements. But so great was the jealousy of foreign influence, and so important was the position of a senator likely to become, that, when this particular qualification came to be considered, it was found to be altogether impossible to make so short a period of citizenship acceptable to a majority. According to the plan then contemplated, the Senate was to be a body of great power. Its legislative duties were to form but a part of its functions. It was to have the making of treaties, and the appointment of ambassadors and judges of the Supreme Court, without the concurrent action of any other department of the government. In addition to these special powers, it was to have a concurrent vote with the House of Representatives in the election of the executive. It was also to exercise the judicial function of hearing and determining questions of boundary between the States.

This formidable array of powers, which were subsequently much modified or entirely taken away, but which no one could then be sure would not be retained as they had been proposed, rendered it necessary to guard the Senate with peculiar care. A very animated discussion, in which the same reasons were urged on both sides which had entered into the debate on the qualifications of the representatives, enforced by the peculiar dangers to which the Senate might be exposed, at length resulted in a vote establishing the period of nine years' citizenship as a qualification for the office of a senator.[159]

The origin of the number of senators and of the method of voting forms an interesting and important topic, to which our inquiries should now be directed. We have already seen that, in the formation of the Virginia plan of government, as it was digested in the committee of the whole, the purpose was entertained, and was once sanctioned by a bare majority of the States, of giving to both branches of the legislature a proportional representation of the respective populations of the States; and that the sole difference between the two chambers then contemplated was to be in the mode of election. But in the actual situation of the different members of the confederacy, it was a necessary consequence of such a representation, that the Senate would be made by it inconveniently large, whether the members were to be elected by the legislatures, the executives, or the people of the States. It would, in fact, have made the first Senate to consist of eighty or a hundred persons, in order to have entitled the State of Delaware to a single member. This inconvenience was pointed out at an early period, by Rufus King;[160] but it did not prevent the adoption of this mode of representation. On the one side of that long contested question were those who desired to found the whole system of representation, as between the States, upon their relative numbers of inhabitants. On the other side were those who insisted upon an absolute equality between the States. But among the former there was a great difference of opinion as to the best mode of choosing the senators,—whether they should be elected by the people in districts, by the legislatures or the executives of the States, or by the other branch of the national legislature. So strongly, however, were some of the members even from the most populous States impressed with the necessity of preserving the State governments in some connection with the national system, that, while they insisted on a proportional representation in the Senate, they were ready to concede to the State legislatures the choice of its members, leaving the difficulty arising from the magnitude of the body to be encountered as it might be.[161] The delegates of the smaller States accepted this concession, in the belief that the impracticability of constructing a convenient Senate in this mode would compel an abandonment of the principle of unequal representation, and would require the substitution of the equality for which they contended.

In this expectation they were not disappointed; for when the system framed in the committee came under revision in the Convention, and the severe and protracted contest ended at last in the compromise described in a previous chapter, the States were not only permitted to choose the members of the Senate, but they were admitted to an equality of representation in that branch, and the subject was freed from the embarrassment arising from the numbers that must have been introduced into it by the opposite plan. From this point, the sole questions that required to be determined related to the number of members to be assigned to each State, and the method of voting. The first was a question of expediency only; the last was a question both of expediency and of principle.

The constant aim of the States, which had from the first opposed a radical change in the structure of the government, was to frame the legislature as nearly as possible upon the model of the Congress of the Confederation. In that assembly, each State was allowed not more than seven, and not less than two members; but in practice, the delegations of the States perpetually varied between these two numbers, or fell below the lowest, and in the latter case the State was not considered as represented. The method of voting, however, rendered it unimportant how many members were present from a State, provided they were enough to cast the vote of the State at all; for all questions were decided by the votes of a majority of the States, and not of a majority of the members voting. I have already had occasion more than once to notice the fact,—and it is one of no inconsiderable importance,—that the first Continental Congress, assembled in 1774, adopted the plan of giving to each Colony one vote, because it was impossible to ascertain the relative importance of the different Colonies. The record that was then made of this reason for a method of voting that would have been otherwise essentially unjust, shows quite clearly that a purpose was then entertained of adopting some other method at a future time. But when the Articles of Confederation were framed, in 1781, it appears as clearly from the discussions in Congress, not only that the same difficulty of obtaining the information necessary for a different system continued, but that some of the States were absolutely unwilling to enter the Confederation upon any other terms than a full federal equality. In this way the practice of voting by States in Congress was perpetuated down to the year 1787. It had come to be regarded by some of the smaller States, notwithstanding the injustice and inconvenience which it constantly produced, as a kind of birthright; and when the Senate of the United States came to be framed, and an equality of representation in it was conceded, some of the members of those States still considered it necessary to preserve this method of voting, in order to complete the idea of State representation, and to enable the States to protect their individual rights.[162] But it is obvious that, for this purpose, the question had lost its real importance, when an equal number of Senators was assigned to each State; since, upon every measure that can touch the separate rights and interests of a State, the unanimity which is certain to prevail among its representatives makes the vote of the State as efficient as it could be if it were required to be cast as a unit, while the chances for its protection are increased by the opportunity of gaining single votes from the delegations of other States.

These and similar considerations ultimately led a large majority of the States to prefer a union of the plan of an equal number of senators from each State with that which would allow them to vote per capita.[163] The number of two was adopted as the most convenient, under all the circumstances, because most likely to unite the despatch of business with the constant presence of an equal number from every State.

With this peculiar character, the outline of the institution went to the committee of detail. On the consideration of their report, these provisions, as we have seen, became complicated with the restriction of "money bills" to the House of Representatives, and the choice of the executive. The mode in which those controversies were finally settled being elsewhere stated, it only remains here to record the fact that the particular nature and form of the representation in the Senate was generally acquiesced in, when its relations to the other branches of the government had been determined.

The difference of origin of the two branches of the legislature made it necessary to provide for different modes of supplying the vacancies that might occur in them. The obvious way of effecting this in the case of a vacancy in the office of a representative was to order a new election by the people, who can readily assemble for such a purpose; and the duty of ordering such elections was imposed on the executives of the States, because those functionaries would be best informed as to the convenience of their meeting. But the State legislatures, to whom the choice of senators was to be confided, would be in session for only a part of the year; and to summon them for the special purpose of filling a vacancy in the Senate might occasion great inconvenience. The committee of detail, therefore, provided that vacancies in the Senate might be supplied by the executive of the State until the next meeting of its legislature.

It is now time to turn to the examination of that great scheme of separate and concurrent powers, which it had been proposed to confer upon the Senate, and the suggestion of which influenced to a great degree the qualifications of the members, their term of office, and indeed the entire construction of this branch of the legislature. The primary purpose of a Senate was that of a second legislative chamber, having equal authority in all acts of legislation with the first, the action of both being necessary to the passage of a law. As the formation of the Constitution proceeded, from the single idea of such a second chamber, without any special character of representation to distinguish it from the first, up to the plan of an equal representation of the States, there was a strong disposition manifested to accumulate power in the body for which this peculiar character had been gained. It had been made the depositary of a direct and equal State influence; and this feature of the system had become fixed and irrevocable before the powers of the other departments, or their origin or relations, had been finally settled. The consequence was, that for a time, wherever jealousy was felt with regard to the executive or the judiciary,—wherever there was a doubt about confiding in the direct action of the people,—wherever a chasm presented itself, and the right mode of filling it did not occur,—there was a tendency to resort to the Senate.

Thus, when the committee of detail were charged with the duty of preparing the Constitution according to the resolutions agreed upon in the Convention, the Senate had not only been made a legislative body, with authority co-ordinate to that of the House, but it had received the separate power of appointing the judges, and the power to give a separate vote in the election of the executive. The power to make war and treaties, the appointment of ambassadors, and the trial of impeachments, had not been distinctly given to any department; but the general intention to be inferred from the resolutions was, that these matters should be vested in one or both of the two branches of the legislature. To the executive, the duty had been assigned, which the name of the office implies, of executing the laws; to which had been added a revisionary check upon legislation, and the appointment to offices in cases not otherwise provided for. The judicial power had been described in general and comprehensive terms, which required a particular enumeration of the cases embraced by the principles laid down; but it had not been distinctly foreseen, that one of the cases to which those principles must lead would be an alleged conflict between an act of legislation and the fundamental law of the Constitution. The system thus marked out was carried into detail by the committee, by vesting in the Senate the power to make treaties, to appoint ambassadors and judges of the Supreme Court, and to adjudicate questions of boundary between the States; by giving to the two branches of the legislature the power to declare war; by assigning the trial of impeachments to the Supreme Court, and enumerating the other cases of which it was to have cognizance; and by providing for the election of the executive by the legislature, and confining its powers and duties to those prescribed for it by the resolutions.

It is scarcely necessary to pause for the purpose of commenting on the practical inconveniences of some of these arrangements. However proper it may be, in a limited and republican government, to vest the power of declaring war in the legislative department, the negotiation of treaties by a numerous body had been found, in our own experience, and in that of other republics, extremely embarrassing. However wise may be a jealousy of the executive department, it is difficult to say that the same authority that is intrusted with the appointment to all other offices should not be permitted to make an ambassador or a judge. However august may be a proceeding that is to determine a boundary between sovereign States, it is nothing more and nothing less than a strictly judicial controversy, capable of trial in the ordinary forms and tribunals of judicature, besides being one that ought to be safely removed from all political influences. However necessary it may be that an impeachment should be conducted with the solemnities and safeguards of allegation and proof, it is not always to be decided by the rules with which judges are most familiar, or to be determined by that body of law which it is their special duty to administer. However desirable it may be, that an elective chief magistracy should be filled with the highest capacity and fitness, and that popular tumults should be avoided, no government has yet existed, in which the election of such a magistrate by the legislative department has afforded any decided advantage over an election directly or indirectly by the people; and to give a body constituted as the American Senate is a negative in the choice of the executive, would be certainly inconvenient, probably dangerous.

But the position of the Senate as an assembly of the States, and certain opinions of its superior fitness for the discharge of some of these duties, had united to make it far too powerful for a safe and satisfactory operation of the government. It was found to be impossible to adjust the whole machine to the quantity of power that had been given to one of its parts. It was eminently just and necessary that the States should have an equal and direct representation in some branch of the government; but that a majority of the States, containing a minority of the people, should possess a negative in the appointment of the executive, and in the question of peace or war, and the sole voice in the appointment of judges and ambassadors, was neither necessary nor proper. Theoretically, it might seem appropriate that a question of boundary between any two of the States represented in it should be committed to the Senate, as a court of the peers of the sovereign parties to the dispute; but practically, this would be a tribunal not well fitted to try a purely judicial question. It became necessary, therefore, to discover the true limit of that control which the nature of the representation in the Senate was to be allowed to give to a majority of the States. There had been some effort, in the progress of the controversy respecting the representative system, to confine the equal power of the States, in matters of legislation, to particular questions or occasions; but it had turned out to be impracticable thus to divide or limit the ordinary legislative authority of the same body. If the Senate, as an equal assembly of the States, was to legislate at all, it must legislate upon all subjects by the same rule and method of suffrage. But when the question presented itself as to the separate action of this assembly,—how far it should be invested with the appointment of other functionaries, how far it should control the relations of the country with foreign nations, how far it should partake both of executive and judicial powers,—it was much less difficult to draw the line, and to establish proper limits to the direct agency of the States. Those limits could not indeed be ascertained by the mere application of theoretical principles. They were to be found in the primary necessity for reposing greater powers in other departments, for adjusting the relations of the system by a wider distribution of authority, and for confiding more and more in the intelligence and virtue of the people; and therefore it is, that, in these as in other details of the Constitution, we are to look for the clew that is to give us the purpose and design, quite as much to the practical compromises which constantly took place between opposite interests, as to any triumph of any one of opposite theories.

The first experiment that was made towards a restriction of the power of the Senate, and an adjustment of its relations to the other departments, was the preparation of a plan, by which the President was to have the making of treaties, and the appointment of ambassadors, judges of the Supreme Court, and all other officers not otherwise provided for, by and with, the advice and consent of the Senate. The trial of impeachments, of the President included, was transferred to the Senate, and the trial of questions of boundary was placed, like other controversies between States, within the scope of the judicial power. The choice of the President was to be made in the first instance by electors appointed by each State, in such manner as its legislature might direct, each State to have a number of electors equal to the whole number of its senators and representatives in Congress; but if no one of the persons voted for should have a majority of all the electors, or if more than one person should have both a majority and an equal number of votes, the Senate were to choose the President from the five highest candidates voted for by the electors. In this plan, there was certainly a considerable increase of the power of the President; but there was not a sufficient diminution of the power of the Senate. The President could nominate officers and negotiate treaties; but he must obtain the consent of the body by whom he might have been elected, and by whom his re-election might be determined, if he were again to become a candidate. It appeared, therefore, to be quite necessary, either to take away the revisionary control of the Senate over treaties and appointments, or to devise some mode by which the President could be made personally independent of that assembly. He could be made independent only by taking away all agency of the Senate in his election, or by making him ineligible to the office a second time. There were two serious objections to the last of these remedies,—the country might lose the services of a faithful and experienced magistrate, whose continuance in office would be highly important; and even in a case where no pre-eminent merit had challenged a re-election, the effect of an election by the Senate would always be pernicious, and must be visible throughout the whole term of the incumbent who had been successful over four other competitors.

And after all, what necessity was there for confiding this vast power to the Senate, opening the door of a small body to the corruption and intrigue for which the magnitude of the prize to be gained and to be given, and the facility for their exercise, would furnish an enormous temptation? Was it so necessary that the States should force their equality of privilege and of power into every department of the Constitution, making it felt not only in all acts of legislation, but in the whole administration of the executive and judicial duties? Was nothing due to the virtue and sense and patriotism of a majority of the people of the United States? Might they not reasonably be expected to constitute a body of electors, who, chosen for the express purpose, and dissolved as soon as their function had been discharged, would be able to make an upright and intelligent choice of a chief magistrate from among the eminent citizens of the Union?

Questions like these, posterity would easily believe, without the clear record that has descended to them, must have anxiously and deeply employed the framers of the Constitution. They were to consider, not only what was theoretically fit and what would practically work with safety and success, but what would be accepted by the people for whom they were forming these great institutions. That people undoubtedly detested everything in the nature of a monarchy. But there was another thing which they hated with equal intensity, and that was an oligarchy. Their experience had given them quite as much reason for abhorring the one as the other. Such, at least, was their view of that experience. A king, it is true, was the chief magistrate of the mother country against which they had rebelled, against which they had fought successfully for their independence. The measures that drove them into that resistance were executed by the monarch; but those measures were planned, as they believed, by a ministry determined to enslave them, and were sanctioned by a Parliament in which even the so-called popular branch was then but another phase of the aristocracy which ruled the empire. The worst enemy our grandfathers supposed they had in England, throughout their Revolution, was the ministerial majority of that House of Commons, made up of placemen sitting for rotten boroughs, the sons of peers, and the country gentlemen, who belonged to a caste as much as their first-cousins who sat by titles in the House of Lords. Our ancestors did not know—they went to their graves without knowing—that in the hard, implacable temper of the king, made harder and more implacable by a narrow and bigoted conscientiousness, was the real cause for the persistency in that fatal policy which severed these Colonies from his crown.

That long struggle had been over for several years, and its result was certainly not to be regretted by the people of America. But it had left them, as it naturally must have left them, with as strong prejudices and jealousies against every aristocratic, as against every monarchical institution. Public liberty in England they knew might consist with an hereditary throne, and with a privileged and powerful aristocracy. But public liberty in America could consist with neither. The people of the United States could submit to restraints; they could recognize the necessity for checks and balances in the distribution of authority; and they understood as much of the science of government as any people then alive. But an institution,—however originating and however apparently necessary its peculiar construction might be,—embracing but a small number of persons, with power to elect the chief magistrate, with power to revise every appointment from a chief justice down to a tidewaiter, with power to control the President through his subordinate agents, with power to reject every treaty that he might negotiate, and with power to sit in judgment on his impeachment, they would not endure. "We have, in some revolutions of this plan of government," said Randolph, "made a bold stroke for monarchy. We are now doing the same for an aristocracy."

How to attain the true intermediate ground, to avoid the substance of a monarchy and the substance of an aristocracy, and yet not to found the system on a mere democracy, was a problem not easy of solution. All could see, that a government extended over a country so large, which was to have the regulation of its commerce, the collection of great revenues, the care of a vast public domain, the superintendence of intercourse with hordes of savage tribes, the control of relations with all the nations of the world, the administration of a peculiar jurisprudence, and the protection of the local constitutions from violence, must have an army and a navy, and great fiscal, administrative, and judicial establishments, embracing a very numerous body of public officers. To give the appointment of such a multitude of public servants, invested with such functions, to the unchecked authority of the President, would be to create an executive with power not less formidable and real than that of some monarchs, and far greater than that of others. No one desired that a sole power of appointment should be vested in the President alone; it was universally conceded that there must be a revisionary control lodged somewhere, and the only question was where it should be placed. That it ought to be in a body independent of the executive, and not in any council of ministers that might be assigned to him, was apparent; and there was no such body, excepting the Senate, which united the necessary independence with the other qualities needful for a right exercise of this power.

The negotiation of treaties was obviously a function that should be committed to the executive alone. But a treaty might undertake to dismember a State of part of its territory, or might otherwise affect its individual interests; and even where it concerned only the general interests of all the States, there was a great unwillingness to intrust the treaty-making power exclusively to the President. Here, the States, as equal political sovereignties, were unwilling to relax their hold upon the general government; and the result was that provision of the Constitution which makes the consent of two thirds of the Senators present necessary to the ratification of a treaty.

But if it was to have these great overruling powers, the Senate must have no voice in the appointment of the executive. There were two modes in which the election might be arranged, so as to prevent a mutual connection and influence between the Senate and the President. The one was, to allow the highest number of electoral votes to appoint the President;[164] the other was, to place the eventual election—no person having received a majority of all the electoral votes—in the House of Representatives. The latter plan was finally adopted, and the Senate was thus effectually severed from a dangerous connection with the executive.

This separation having been effected, the objections which had been urged against the length of the senatorial term became of little consequence. In the preparation of the plan marked out in the resolutions sent to the committee of detail, the Senate had been considered chiefly with reference to its legislative function; and the purpose of those who advocated a long term of office was to establish a body in the government of sufficient wisdom and firmness to interpose against the impetuous counsels and levelling tendencies of the democratic branch.[165] Six years was adopted as an intermediate period between the longest and the shortest of the terms proposed; and in order that there might be an infusion of different views and tendencies from time to time, it was provided that one third of the members should go out of office biennially.[166] Still, in the case of each individual senator, the period of six years was the longest of the limited terms of office created by the Constitution. Under the Confederation, the members of the Congress had been chosen annually, and were always liable to recall. The people of the United States were in general strongly disposed to a frequency of elections. A term of office for six years would be that feature of the proposed Senate most likely, in the popular mind, to be regarded as of an aristocratic tendency. If united with the powers that have just passed under our review, and if to those powers it could be said that an improper influence over the executive had been added, the system would in all probability be rejected by the people. But if the Senate were deprived of all agency in the appointment of the President, it would be mere declamation to complain of their term of office; for undoubtedly the peculiar duties assigned to the Senate could be best discharged by those who had had the longest experience in them. The solid objection to such a term being removed, the complaint of aristocratic tendencies would be confined to those who might wish to find plausible reasons for opposition, and might not wish to be satisfied with the true reasons for the provision.

Having now described the formation and the special powers of the two branches of the legislature, I proceed to inquire into the origin and history of the disqualifications to which the members were subjected.

The Constitution of the United States was framed and established by a generation of men, who had observed the operation upon the English legislature of that species of influence, by the crown or its servants, which, from the mode of its exercise, not seldom amounting to actual bribery, has received the appropriate name of parliamentary corruption. That generation of the American people knew but little—they cared less—about the origin of a method of governing the legislative body, which implies an open or a secret venality on the part of its members, and a willingness on the part of the administration to purchase their consent to its measures. What they did know and what they did regard was, that for a long succession of years the votes of members of Parliament had been bought, with money or office, by nearly every minister who had been at the head of affairs; that, if this practice had not been introduced under the prince who was placed upon the throne by the revolution of 1688, it had certainly grown to a kind of system in the hands of the statesmen by whom that revolution was effected, and had attained its greatest height under the first two princes of the house of Hanover; that it was freely and sometimes shamefully applied throughout the American war; and that, down to that day, no British statesman had had the sagacity to discover, and the virtue to adopt, a purer system of administration.[167] Whether this was a necessary vice of the English constitution; whether it was inherent or temporary; or whether it was only a stage in the development of parliamentary government, destined to pass away when the relations of the representative body to the people had become better settled,—could not then be seen even in England. But to our ancestors, when framing their Constitution, it presented itself as a momentous fact; whose warning was not the less powerful, because it came from the centre of institutions with which they had been most familiar, and from the country to which they traced their origin,—a country in which parliamentary government had had the fairest chances for success that the world had witnessed.

Yet it would not have been easy at that time, as it is not at the present, and as it may never be, to define with absolute precision the true limits which executive influence with the legislative body should not be suffered to pass. Still less is it easy to say that such influence ought not to exist at all;[168] although it is not difficult to say that there are methods in which it should not be suffered to be exercised. The more elevated and more clear-sighted public morality of the present age, in England and in America, condemns with equal severity and equal justice both the giver and the receiver in every transaction that can be regarded as a purchase of votes upon particular measures or occasions, whatever may have been the consideration or motive of the bargain. But whether that morality goes, or ought to go, farther,—whether it includes, or ought to include, in the same condemnation, every form of influence by which an administration can add extrinsic weight to the merits of its measures,—is a question that admits of discussion.

It may be said, assuming the good intentions of an administration, and the correctness of its policy and measures, that its policy and its measures should address themselves solely to the patriotism and sense of right of the members of the legislative department. But an ever active patriotism and a never failing sense of right are not always, if often, to be found; the members of a legislative body are men, with the imperfections, the failings, and the passions of men; and if pure patriotism and right perceptions of duty are alone relied upon, they may, and sometimes inevitably will be, found wanting. On the other hand, it is just as true, that the persons composing every administration are mere men, and that it will not do to assume their wisdom and good intentions as the sole foundations on which to rest the public security, leaving them at liberty to use all the appliances that may be found effectual for gaining right ends, and overlooking the character of the means. One of the principal reasons for the establishment of different departments, in the class of governments to which ours belongs, is, that perfect virtue and unerring wisdom are not to be predicated of any man in any station. If they were, a simple despotism would be the best and the only necessary form of government.

All correct reasoning on this subject, and all true construction of governments like ours, must commence with two propositions, one of which embraces a truth of political science, and the other a truth of general morals. The first is, that, while the different functions of government are to be distributed among different persons, and to be kept distinctly separated, in order that there may be both division of labor and checks against the abuse of power, it is occasionally necessary that some room should be allowed for supplying the want of wisdom or virtue in one department by the wisdom or virtue of another. In matters of government depending on mere discretion, unlimited confidence cannot with safety be placed anywhere.[169] The other proposition is the very plain axiom in morals, that, while in all human transactions there may be bad means employed to effect a worthy object, the character of those means can never be altered, nor their use justified, by the character of the end. With these two propositions admitted, what is to be done is to discover that arrangement of the powers and relations of the different departments whose acts involve, more or less, the exercise of pure discretion, which will give the best effect to both of these truths; and as all government and all details of government, to be useful, must be practically adapted to the nature of man, it will be found that an approximation in practice to a perfect theory is all that can be attained.

Thus the general duties and powers of the legislative and the executive departments are capable of distinct separation. The one is to make, the other is to execute the laws. But execution of the laws of necessity involves administration, and administration makes it necessary that there should be an executive policy. To carry out that policy requires new laws; authority must be obtained to do acts not before authorized; and supplies must be perpetually renewed. The executive stands therefore in a close relation to the legislative department;—a relation which makes it necessary for the one to appeal frequently, and indeed constantly, to the discretion of the other. If the executive is left at liberty to purchase what it believes or alleges to be the right exercise of that discretion, by the inducements of money or office applied to a particular case, the rule of common morals is violated; conscience becomes false to duty, and corruption, having once entered the body politic, may be employed to effect bad ends as well as good. Nay, as bad ends will stand most in need of its influence, it will be applied the most grossly where the object to be attained is the most culpable. On the other hand, if the members of the legislative body, by being made incapable of accepting the higher or more lucrative offices of state, are cut off from those inducements to right conduct and a true ambition which the imperfections of our nature have made not only powerful, but sometimes necessary, aids to virtue, the public service may have no other security than their uncertain impulses or imperfect judgments. In the midst of such tendencies to opposite mischiefs, all that human wisdom and foresight can do is, to anticipate and prevent the evils of both extremes, by provisions which will guard both the interests of morality and the interests of political expediency as completely as circumstances will allow.

I am persuaded it was upon such principles as I have thus endeavored to state, that the framers of our national Constitution intended to regulate this very difficult part of the relations between the executive and the legislature. During a considerable period, however, of their deliberations on the disabilities to which it would be proper to subject the members of the latter department, they had another example before them besides that afforded by the history of parliamentary corruption in England. The Congress of the Confederation had of course the sole power of appointment to offices under the authority of the United States; and although there is no reason to suppose that body at any time to have been justly chargeable with corrupt motives, there were complaints of the frequency with which it had filled the offices which it had created with its own members. In these complaints, the people overlooked the justification. They forgot that the nature of the government, and the circumstances of the country, rendered it difficult for an assembly which both made and filled the offices, and which exercised its functions at a time when the State governments absorbed by far the greater part of the interests and attention of their citizens, to find suitable men out of its own ranks. In that condition of things, it might have been expected,—and it implies no improper purpose,—that offices would be sometimes framed or regulated with a view to their being filled by particular persons. But the complaints existed;[170] the evil was one that tended constantly to become worse; and, in framing the new government, this was the first aspect in which the influence of office and its emoluments presented itself to the Convention.

For when the Virginia members, through Edmund Randolph, brought forward their scheme of government, they not only gave the executive no power of appointment to any office, but they proposed to vest the appointment of both the executive and the judiciary in the legislature. Hence they felt the necessity of guarding against the abuse that might follow, if the members of the legislature were to be left at liberty to appoint each other to office,—an abuse which they knew had been imputed to the Congress, and which they declared had been grossly practised by their own legislature.[171] They proposed, therefore, to go beyond the Confederation, and to make the members of both branches ineligible to any office established under the authority of the United States, (excepting those peculiarly belonging to their own functions,) during their term of service and for one year after its expiration. This provision passed the committee of the whole; but in the Convention, on a motion made by Mr. Gorham to strike it out, the votes of the States were divided. An effort was then made by Mr. Madison to find a middle ground, between an eligibility in all cases and an absolute disqualification. If the unnecessary creation of offices and the increase of salaries was the principal evil to be anticipated, he believed that the door might be shut against that abuse, and might properly be left open for the appointment of members to places not affected by their own votes, as an encouragement to the legislative service. But there were several of the stern patriots of the Convention who insisted on a total exclusion, and who denied that there was any such necessity for holding out inducements to enter the legislature.[172] This was a question on which different minds, of equal sagacity and equal purity, would naturally arrive at different conclusions. Still, it is apparent that the mischiefs most apprehended at the time of Mr. Madison's proposition would be in a great degree prevented, by taking from the legislature the power of appointing to office; and that this modification of the system was what was needed, to make his plan a true remedy for the abuses that had been displayed in our own experience. The stigma of venality cannot properly be applied to the laudable ambition of rising into the honorable offices of a free government; and if the opportunity to create places, or to increase their emoluments, and then to secure those places, is taken away, by vesting the appointment in the executive, the question turns mainly on the relations that ought to exist between that department and the legislature. But Mr. Madison's suggestion was made before it was ascertained that the executive would have any power of appointment, and it was accordingly rejected;—a majority of the delegations considering it best to retain the ineligibility in all cases, as proposed by the Virginia plan.[173] In this way, the disqualification became incorporated into the first draft of the Constitution, prepared by the committee of detail.[174]

But by this time it was known that a large part of the patronage of the government must be placed in the hands of the President; for it had been settled that he was to appoint to all offices not otherwise provided for, and the cases thus excepted were those of judges and ambassadors, which stood, in this draft of the Constitution, vested in the Senate. A strong opposition to this arrangement, however, had already manifested itself, and the result was very likely to be,—as it in fact turned out,—that nearly the whole of the appointments would be made on the nomination of the President, even if the Senate were to be empowered to confirm or reject them. Accordingly, when this clause came under consideration, the principle of an absolute disqualification for office was vigorously attacked, and as vigorously defended. The inconvenience and impolicy of excluding officers of the army and navy from the legislature; of rendering it impossible for the executive to select a commander-in-chief from among the members, in cases of pre-eminent fitness; of refusing seats to the heads of executive departments; and of closing the legislature as an avenue to other branches of the public service,—were all strenuously urged and denied.[175] At length, a middle course became necessary, to reconcile all opinions. By a very close vote, the ineligibility was restrained to cases in which the office had been created, or the emolument of it increased, during the term of membership;[176] and a seat in the legislature was made incompatible with any other office under the United States.[177]

Some at least of the probable sources of corruption were cut off by these provisions. The executive can make no bargain for a vote, by the promise of an office which has been acted upon by the member whose vote is sought for; and there can be no body of placemen, ready at all times to sell their votes as the price for which they are permitted to retain their places. At the same time, the executive is not deprived of the influence which attends the power of appointing to offices not created, or the emoluments of which have not been increased, by any Congress of which the person appointed has been a member. This influence is capable of abuse; it is also capable of being honorably and beneficially exerted. Whether it shall be employed corruptly or honestly, for good or for bad purposes, is left by the Constitution to the restraints of personal virtue and the chastisements of public opinion.

A serious question, however, has been made, whether the interests of the public service, involved in the relations of the two departments, would not have been placed upon a better footing, if some of the higher officers of state had been admitted to hold seats in the legislature. Under the English constitution, there is no practical difficulty, at least in modern times, in determining the general principle that is to distinguish between the class of officers who can, and those who cannot, be usefully allowed to have seats in the House of Commons. The principle which, after much inconsistent legislation and many abortive attempts to legislate, has generally been acted on since the reign of George II., is, that it is both necessary and useful to have in that House some of the higher functionaries of the administration; but that it is not at all necessary, and not useful, to allow the privilege of sitting in Parliament to subordinate officers.[178] The necessity of the case arises altogether from the peculiar relations of the ministry to the crown, and of the latter to the Commons. If the executive government were not admitted, through any of its members, to explain and vindicate its measures, to advocate new grants of authority, or to defend the prerogatives of the crown, the popular branch of the legislature would either become the predominant power in the state, or sink into insignificance. This is conceded by the severest writers on the English government.

But when we pass from a civil polity which it has taken centuries to produce, and which has had its departments adjusted much less by reference to exact principles than by the results of their successive struggles for supremacy over each other, and when we come to an original distribution of powers, in the arrangements of a constitution made entire and at once by a single act of the national will, we must not give too much effect to analogies which after all are far from being complete. In preparing the Constitution of the United States, its framers had no prerogative, in any way resembling that of the crown of England, to consider and provide for. The separate powers to be conferred on the chief magistracy—aside from its concurrence in legislation—were simply executive and administrative; the office was to be elective, and not hereditary; and its functions, like those of the legislature, were to be prescribed with all the exactness of which a written instrument is capable. There was, therefore, little of such danger that the one department would silently or openly encroach on the rights or usurp the powers of the other, as there is where there exists hereditary right on the one side and customary right on the other, and where the boundaries between the two departments are to be traced by the aid of ancient traditions, or collected from numerous and perhaps conflicting precedents. There was no such necessity, therefore, as there is in England, for placing members of the administration in the legislature, in order to preserve the balance of the Constitution. The sole question with us was, whether the public convenience required that the administration should be able to act directly upon the course of legislation. The prevailing opinion was that this was not required. This opinion was undoubtedly formed under the fear of corruption and the jealousy of executive power, chiefly produced—and justly produced—by the example of what had long existed in England. That the error, if any was committed, lay on the safer side, none can doubt. It is possible that the chances of a corrupt influence would not have been increased, and that the opportunities for a salutary influence might have been enlarged,—as it is highly probable that the convenience of communication would have been promoted,—if some of the higher officers of state could have been allowed to hold seats in either house of Congress. But it is difficult to see how this could have been successfully practised, under the system of representation and election which the framers of the Constitution were obliged to establish: and perhaps this is a decisive answer to the objection.[179]

Among the powers conceded by the Constitution to the legislature of each State is that of prescribing the time, place, and manner of holding the elections of its senators and representatives in Congress. This provision[180] originated with the committee of detail; but, as it was reported by them, there was no other authority reserved to Congress itself than that of altering the regulations of the States; and this authority extended as well to the place of choosing the senators, as to all the other circumstances of the election.[181] In the Convention, however, the authority of Congress was extended beyond the alteration of State regulations, so as to embrace a power to make rules, as well as to alter those made by the States. But the place of choosing the senators was excepted altogether from this restraining authority, and left to the States.[182] Mr. Madison, in his minutes, adds the explanation, that the power of Congress to make regulations was supplied, in order to enable them to regulate the elections, if the States should fail or refuse to do so.[183] But the text of the Constitution, as finally settled, gives authority to Congress at "any time" to "make or alter such regulations"; and this would seem to confer a power, which, when exercised, must be paramount, whether a State regulation exists at the time or not.

There is one other peculiarity of the American legislature, of which it is proper in this connection to give a brief account; namely, the compensation of its members for their public services. In the plan presented by the Virginia delegation, it was proposed that the members of both branches should receive "liberal stipends"; but it was not suggested whether they were to be paid by the States, or from the national treasury. The committee of the whole determined to adopt the latter mode of payment; and as the representation in both branches, according to the first decision, was to be of the same character, no reason was then suggested for making a difference in the source of their compensation. But when the construction of the Senate was considered in the Convention, the idea was suggested that this body ought in some way to represent wealth; and it was apparently under the influence of this suggestion, that, after a refusal to provide for a payment of the senators by their States, payment out of the national treasury was stricken from the resolution under debate.[184] There was thus introduced into the resolutions sent to the committee of detail, a discrepancy between the modes of compensating the members of the two branches; for while the members of the House were to be paid "an adequate compensation" out of "the public treasury," the Senate were to receive "a compensation for the devotion of their time to the public service," but the source of payment was not designated. But when the whole body of those resolutions had been acted on, the character of the representation in the Senate had been settled, and the idea of its being made a representation of wealth, in any sense, had been rejected. The committee of detail had, therefore, in giving effect to the decisions of the Convention, to consider merely whether the members of the two branches should be paid by their States, or from the national treasury; and for the purpose of making the same provision as to both, and in order to avoid the question whether the Constitution should establish the amount, or should leave it to be regulated by the Congress itself, they provided that the members of each house should receive a compensation for their services, to be ascertained and paid by the State in which they should be chosen.[185]

This, however, was to encounter far greater evils than it avoided. If paid by their States, the members of the national legislature would not only receive different compensations, but they would be directly subjected to the prejudices, caprices, and political purposes of the State legislatures. Whatever theory might be maintained with respect to the relations between the representatives, in either branch, and the State in which they were chosen, or the people of the States, to subject one class of public servants to the power of another class could not fail to produce the most mischievous consequences. A large majority of the States, therefore, decided upon payment out of the national treasury,[186] and it was finally determined that the rate of compensation should not be fixed by the Constitution, but should be left to be ascertained by law.[187]

Among the separate functions assigned by the Constitution to the houses of Congress are those of presenting and trying impeachments. An impeachment, in the report of the committee of detail, was treated as an ordinary judicial proceeding, and was placed within the jurisdiction of the Supreme Court. That this was not in all respects a suitable provision, will appear from the following considerations. Although an impeachment may involve an inquiry whether a crime against any positive law has been committed, yet it is not necessarily a trial for crime; nor is there any necessity, in the case of crimes committed by public officers, for the institution of any special proceeding for the infliction of the punishment prescribed by the laws, since they, like all other persons, are amenable to the ordinary jurisdiction of the courts of justice, in respect of offences against positive law. The purposes of an impeachment lie wholly beyond the penalties of the statute or the customary law. The object of the proceeding is to ascertain whether cause exists for removing a public officer from office. Such a cause may be found in the fact, that, either in the discharge of his office, or aside from its functions, he has violated a law, or committed what is technically denominated a crime. But a cause for removal from office may exist, where no offence against positive law has been committed, as where the individual has, from immorality or imbecility or maleadministration, become unfit to exercise the office. The rules by which an impeachment is to be determined are therefore peculiar, and are not fully embraced by those principles or provisions of law which courts of ordinary jurisdiction are required to administer.

From considerations of this kind, especially when applied to the impeachment of a President of the United States, the Convention found it expedient to place the trial in the Senate. In fact, the whole subject of impeachments, as finally settled in the Constitution, received its impress in a great degree from the attention that was paid to the bearing of this power upon the executive. Few members of the Convention were willing to constitute a single executive, with such powers as were proposed to be given to the President, without subjecting him to removal from office on impeachment; and when it was perceived to be necessary to confer upon him the appointment of the judges, it became equally necessary to provide some other tribunal than the Supreme Court for the trial of his impeachment. There was no other body already provided for in the government, with whom this jurisdiction could be lodged, excepting the Senate; and the only alternative to this plan was to create a special tribunal for the sole purpose of trying impeachments of the President and other officers. This was justly deemed a manifest inconvenience; and although there were various theoretical objections suggested against placing the trial in the Senate, on the question being stated there were found to be but two dissentient States.[188] This point having been settled, in relation to impeachments of the President, the trial of impeachments of all other civil officers of the United States was, for the sake of uniformity, also confided to the Senate.[189] The power of impeachment was confined, as originally proposed, to the House of Representatives.[190]

The number of members of each house that should be made a quorum for the transaction of business gave rise to a good deal of difference of opinion. The controlling reason why a smaller number than a majority of the members of each house should not be permitted to make laws, was to be found in the extent of the country and the diversity of its interests. The central States, it was said, could always have their members present with more convenience than the distant States; and after some discussion, it was determined to establish a majority of each house as its quorum for the transaction of business, giving to a smaller number power to adjourn from day to day, and to compel the attendance of absent members.[191]

Provisions making each house the judge of the elections, returns, and qualifications of its own members; that for any speech, or debate in either house no member shall be questioned in any other place; and that in all cases, except treason, felony, or breach of the peace, the members shall be privileged from arrest during their attendance at, and in going to and returning from, the sessions of their respective houses,—were agreed to without any dissent.[192]

The power of each house to determine the rules of its proceedings, to punish its members for disorderly behavior, and to expel with the concurrence of two thirds, was agreed to with general assent.[193] Each house was also directed to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and one fifth of the members present in either house were empowered to require the yeas and nays to be entered on its journal.[194]

The report of the committee of detail had made no provision for such an officer as the Vice-President of the United States, and had therefore declared that the Senate, as well as the House, should choose its own presiding officer. This feature of their report received the sanction of the Convention; but subsequently, when it became necessary to create an officer to succeed the President of the United States, in case of death, resignation, or removal from office, the plan was adopted of making the former ex officio the presiding officer of the Senate, giving him a vote only in cases where the votes of the members are equally divided.[195] To this was added the further provision, that the Senate shall choose, besides all its other officers, a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States.[196] The House of Representatives were empowered to choose their own Speaker, and other officers, as originally proposed.[197]

The mode in which laws were to be enacted was the last topic concerning the action of the legislature which required to be dealt with in the Constitution. The principle had been already settled, that the negative of the President should arrest the passage of a law, unless, after he had refused his concurrence, it should be passed by two thirds of the members of each house. In order to give effect to this principle, the committee of detail made the following regulations, which were adopted into the Constitution;—that every bill, which shall have passed the two houses, shall, before it become a law, be presented to the President of the United States; that, if he approve, he shall sign it, but if not, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it; that if, after such reconsideration, two thirds of that house agree to pass the bill, it is to be sent with the objections to the other house, by which it is likewise to be reconsidered, and, if approved by two thirds of that house, it is to become a law; but in all such cases, the votes of both houses are to be determined by yeas and nays entered upon the journal. If any bill be not returned by the President within ten days (Sundays excepted) after it has been presented to him, it is to become a law, in like manner as if he had signed it, unless the Congress by adjourning prevent its return, in which case it is not to become a law. All orders, resolutions, and votes to which the concurrence of both houses is necessary, (except on a question of adjournment,) are subject to these provisions.[198]

The two important differences between the negative thus vested in the President of the United States and that which belongs to the King of England are, that the former is a qualified, while the latter is an absolute, power to arrest the passage of a law; and that the one is required to render to the legislature the reasons for his refusal to approve a bill, while the latter renders no reasons, but simply answers that he will advise of the matter, which is the parliamentary form of signifying a refusal to approve. The provision in our Constitution which requires the President to communicate to the legislature his objections to a bill, was rendered necessary by the power conferred upon two thirds of both houses to make it a law, notwithstanding his refusal to sign it. By this power, which makes the negative of the President a qualified one only, the framers of the Constitution intended that the two houses should take into consideration the objections which may have led the President to withhold his assent, and that his assent should be dispensed with, if, notwithstanding those objections, two thirds of both houses should still approve of the measure. These provisions, therefore, on the one hand, give to the President a real participation in acts of legislation, and impose upon him a real responsibility for the measures to which he gives his official approval, while they give him an important influence over the final action of the legislature upon those which he refuses to sanction; and, on the other hand, they establish a wide distinction between his negative and that of the King in England. The latter has none but an absolute "veto"; if he refuse to sign a bill, it cannot become a law; and it is well understood, that it is on account of this absolute effect of the refusal, that this prerogative has been wholly disused since the reign of William III., and that the practice has grown up of signifying, through the ministry, the previous opposition of the executive, if any exists, while the measure is under discussion in Parliament. It is not needful to consider here which mode of legislation is theoretically or practically the best. It is sufficient to notice the fact, that the absence from our system of official and responsible advisers of the President, having seats in the legislature, renders it impracticable to signify his views of a measure, while it is under the consideration of either house. For this reason, and because the President himself is responsible to the people for his official acts, and in order to accompany that responsibility with the requisite power both to act upon reasons and to render them, our Constitution has vested in him this peculiar and qualified negative.[199]

The remaining topic that demands our inquiries, respecting the legislature, relates to the place of its meeting. The Confederation was a government without a capitol, or a seat; a want which seriously impaired its dignity and its efficiency, and subjected it to great inconveniences; at the same time, it was unable to supply the defect. Its Congress, following the example of their predecessors, had continued to assemble at Philadelphia, until June, 1783; when, as we have already seen, in consequence of a mutiny by some of the federal troops stationed in that neighborhood, against which the local authorities failed to protect them, they left that city, and reassembled at Princeton, in the State of New Jersey, in the halls of a college.[200] There, in the following October, a resolution was passed, directing that buildings for the use of Congress should be erected at some suitable place near the falls of the Delaware; for which the right of soil and an exclusive jurisdiction should be obtained.[201] But this was entirely unsatisfactory to the Southern States. They complained that the place selected was not central, was unfavorable to the Union, and unjust to them. They endeavored to procure a reconsideration of the vote, but without success.[202] Several days were then consumed in fruitless efforts to agree on a temporary residence; and at length it became apparent that there was no prospect of a general assent to any one place, either for a temporary or for a permanent seat. The plan of a single residence was then changed, and a resolution was passed, providing for an alternate residence at two places, by directing that buildings for the use of Congress, and a federal town, should also be erected at or near the lower falls of the Potomac, or Georgetown; and that until both places, that on the Delaware and that on the Potomac, were ready for their reception, Congress should sit alternately, for equal periods of not more than one year and not less than six months, at Trenton, the capital of the State of New Jersey, and at Annapolis, the capital of the State of Maryland. The President was thereupon directed to adjourn the Congress, on the 12th of the following November, to meet at Annapolis on the 26th, for the despatch of business. Thither they accordingly repaired, and there they continued to sit until June 3, 1784. A recess followed, during which a committee of the States sat, until Congress reassembled at Trenton, on the 30th of the following October.

At Trenton, the accommodations appear to have been altogether insufficient, and the States of South Carolina and Pennsylvania proposed to adjourn from that place.[203] The plan of two capitols in different places was then rescinded,[204] and an ordinance was passed, for the appointment of commissioners to establish a seat of government on the banks of the Delaware, at some point within eight miles above or below the lower falls of that river. Until the necessary buildings should be ready for their reception, the ordinance provided that Congress should sit at the city of New York.[205] When assembled there in January, 1785, they received and accepted from the corporation an offer of the use of the City Hall; and in that building they continued to hold their sessions until after the adoption of the Constitution.[206]

It does not appear that any steps were taken under the ordinance of 1784, or under any of the previous resolutions, for the establishment of a federal town and a seat of government at any of the places designated. Whether the Congress felt the want of constitutional power to carry out their project, or whether the want of means, or a difficulty in obtaining a suitable grant of the soil and jurisdiction, was the real impediment, there are now no means of determining. It seems quite probable, however, that, after their removal to the city of New York, they found themselves much better placed than they or their predecessors had ever been elsewhere; and as the discussions respecting a total revision of the federal system soon afterwards began to agitate the public mind, the plan of establishing a seat for the accommodation of the old government was naturally postponed.

The plan itself, on paper, was a bold and magnificent one. It contemplated a district not less than two and not more than three miles square, with a "federal house" for the use of Congress; suitable buildings for the executive departments; official residences for the president and secretary of Congress, and the secretaries of foreign affairs, of war, of the marine, and the officers of the treasury; besides hotels to be erected and owned by the States as residences for their delegates. But, for this fine scheme of a federal metropolis, an appropriation was made, which, even in those days, one might suppose, would scarcely have paid for the land required. The commissioners who were to purchase the site, lay out the town, and contract for the erection and completion of all the public edifices,—excepting those which were to belong to the States,—"in an elegant manner," were authorized to draw on the federal treasury for a sum not exceeding one hundred thousand dollars, for the whole of these purposes. If we are to understand it to have been really expected and intended that this sum should defray the cost of this undertaking, we must either be amused by the modest requirements of the Union at that day, or stand amazed at the strides it has since taken in its onward career of prosperity and power. From the porticos of that magnificent Capitol whose domes overhang the Potomac, the eye now looks down upon a city, in which, at a cost of many millions, provision has been made for the central functions of a government, whose daily expenditure exceeds the entire sum appropriated for the establishment of the necessary public buildings and official residences seventy years ago.

In truth, however, there is not much reason to suppose that the Congress of the Confederation seriously contemplated the establishment of a federal city. They were too feeble for such an undertaking. They could pass resolutions and ordinances for the purpose, and send them to the authorities of the States;—and if a more decent attention to the wants and dignity of the federal body was excited, it was well, and was probably the effect principally intended. If they had actually proceeded to do what their resolution of 1783 proposed,—to acquire the jurisdiction, as well as the right of soil, over a tract of land,—they must have encountered a serious obstacle in the want of constitutional power. This difficulty seems to have been felt at a later period; for the ordinance of 1784 only directs a purchase of the land, and is silent upon the subject of municipal jurisdiction. It is fortunate, too, on all accounts, that the design was never executed, if it was seriously entertained. The presence of Congress in the city of New York, where the legislature of the State was also sitting, in the winter of 1787, enabled Hamilton to carry those measures in both bodies, which led immediately to the summoning of the national Convention.[207] And it was especially fortunate that this whole subject came before the Convention unembarrassed with a previous choice of place by the old Congress, or with any steps concerning municipal jurisdiction which they might have taken, or omitted.

For it was no easy matter, in the temper of the public mind existing from 1783 to 1788, to determine where the seat of the federal, or that of the national government, ought to be placed. The Convention found this an unsettled question, and they wisely determined to leave it so. The cities of New York and Philadelphia had wishes and expectations, and it was quite expedient that the Constitution should neither decide between them, nor decide against both of them. It was equally important that it should not direct whether the seat of the national government should be placed at any of the other commercial cities, or at the capital or within the jurisdiction of any State, or in a district to be exclusively under the jurisdiction of the United States. These were grave questions, which involved the general interests of the Union; but however settled, they would cost the Constitution, in some quarter or other, a great deal of the support that it required, if determined before it went into operation.[208] Temporarily, however, the new government must be placed somewhere within the limits of a State, and at one of the principal cities; and as the Congress then sitting at New York would probably invite their successors to assemble there, it became necessary to provide for a future removal, when the time should arrive for a general agreement on the various and delicate questions involved. The difference of structure, however, between the two branches of the proposed Congress, and the difference of interests that might predominate in each, made a disagreement on these questions probable, if not inevitable; and a disagreement on the place of their future sessions, if accompanied by power to sit in separate places, would be fatal to the peace of the Union and the operation of the government.

The committee of detail, therefore, inserted in their draft a clause prohibiting either house, without the consent of the other, from adjourning for more than three days, or to any other place than that at which the Congress might be sitting. Mr. King expressed an apprehension that this implied an authority in both houses to adjourn to any place; and as a frequent change of place had dishonored the federal government, he thought that a law, at least, should be made necessary for a removal. Mr. Madison considered a central position would be so necessary, and that it would be so strongly demanded by the House of Representatives, that a removal from the place of their first session would be extorted, even if a law were required for it. But there was a fear that, if the government were once established at the city of New York, it would never be removed if a law were made necessary. The provision reported by the committee was therefore retained, and it was left in the power of the two houses alone, during a session of Congress, to adjourn to any place, or to any time, on which they might agree.[209]

Still it was needful that the Constitution should empower the legislature to establish a seat of government out of the jurisdiction of any of the States, and away from any of their cities. The time might come when this question could be satisfactorily met. The time would certainly come, when the people of the whole Union could see that the dignity, the independence, and the purity of the government would require that it should be under no local influences; when every citizen of the United States, called to take part in the functions of that government, ought to be able to feel that he and his would owe their protection to no power, save that of the Union itself. Some disadvantage, doubtless, might be experienced, in placing the government away from the great centres of commerce. But neither of the principal seats of wealth and refinement was very near to the centre of the Union; and if either of them had been, the necessity for an exclusive local jurisdiction would probably be found, after the adoption of the Constitution, to outweigh all other considerations. Accordingly, when the Constitution was revised for the purpose of supplying the needful provisions omitted in its preparation, it was determined that no peremptory direction on the subject of a seat of government should be given to the legislature; but that power should be conferred on Congress to exercise an exclusive legislation, in all cases, over such district, not exceeding ten miles square, as might, by cession of particular States and the acceptance of Congress, become the seat of government of the United States. This provision has made the Congress of the United States the exclusive sovereign of the District of Columbia, which it governs in its capacity of the legislature of the Union. It enabled Washington to found the city which bears his name; towards which, whatever may be the claims of local attachment, every American who can discern the connection between the honor, the renown, and the welfare of his country, and the dignity, convenience, and safety of its government, must turn with affection and pride.

With respect to a regular time of meeting, no instructions had been given to the committee of detail; but they inserted in their draft of the Constitution a clause which required the legislature to assemble on the first Monday of December in every year. There was, however, a great difference of opinion as to the expediency of designating any time in the Constitution, and as to the particular period adopted in the report. But as it was generally agreed that Congress ought to assemble annually, the provision which now stands in the Constitution, which requires annual sessions, and establishes the first Monday in December as the time of their commencement, unless a different day shall be appointed by law, was adopted as a compromise of different views.[210]

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