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

FOOTNOTES:

[1] Rhode Island.

[2] New Jersey specifically contemplated a regulation of commerce. See the proceedings of Congress, and those of the States, ante, Vol. I. pp. 361, 367, notes.

[3] Thus, for example, the regulation of commerce was not one of the original purposes for which the Union was formed in 1775 or in 1781. But it became one of the exigencies of the Union, by becoming a national want, and by the revealed incompetency of most of the States to deal with the subject so as to promote their own welfare, or to avoid injury to their confederates. So of a great many other things, for which we must resort, as the framers of the Constitution resorted, to the history of the times.

[4] See the preamble to the act of Virginia, ante, Vol. I. p. 367, note.

[5] See the Resolve of Congress, passed April 18, 1783, proposing to amend the Articles of Confederation. This Resolve was the origin of the proportion of three fifths, in counting the slaves. See post, Chapter II. p. 48; ante, Vol. I. p. 213, note 2.

[6] Madison, Elliot, V. 96.

[7] Ibid. 124.

[8] Elliot, I. 126.

[9] Ibid. 351.

[10] Edmund Randolph. See ante, Vol. I. p. 480.

[11] Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, ay, 6; Connecticut, no, 1; New York divided (Colonel Hamilton ay, Mr. Yates no). Madison, Elliot, V. 132, 134.

[12] Madison, Elliot, V. 134, 135.

[13] Ibid. 135. The vote of Pennsylvania, in compliance with the wishes of Dr. Franklin, was given for a single house.

[14] Massachusetts, New York, Pennsylvania, Virginia, North Carolina, Georgia, ay, 6; New Jersey, South Carolina, no, 2; Connecticut and Delaware divided.

[15] See Mr. Sherman's remarks, made in committee, June 6; Madison, Elliot, V. 161.

[16] See Mr. Madison's views, as stated in his debates, Elliot, V. 161.

[17] Connecticut, New Jersey, South Carolina, ay, 3; Massachusetts, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, no, 8.

[18] Mr. Wilson was in favor of this plan, and Mr. Madison seems to have favored it.

[19] Madison, Elliot, V. 170.

[20] Ante, Vol. I. Book I. ch. I. pp. 15-17.

[21] Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 7; New York, New Jersey, Delaware, no, 3; Maryland, divided.

[22] They contained 1,793,407 inhabitants; the other eight States had 1,845,595 when the federal census of 1790 was taken.

[23] See the census of 1790, post, p. 55.

[24] The population of the States was adopted in the committee of the whole, instead of their quotas of contribution, which, in one or another form, was the alternative proposition. The slaves were included, in a proportion accounted for in the text, as a part of the aggregate population; and it was not until a subsequent stage of the proceedings that this result was defended on the ground of their forming part of the aggregate wealth of the State.

[25] Ante, Vol. I. Book II. ch. III. p. 213, note 2, where the origin of the proportion of three fifths is explained.

[26] By Mr. Sherman and Mr. Ellsworth.

[27] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, Delaware, Maryland, no, 5. Elliot, V. 182.

[28] Madison, Elliot, V. 139.

[29] Mr. Madison, Mr. Wilson, Mr. C. Pinckney, Mr. Dickinson. On the other hand, Mr. Williamson, Mr. Sherman, Mr. Bedford, and Mr. Butler strenuously opposed this plan.

[30] Accordingly, a proposition to extend the negative on State legislation to all cases received the votes of three States only, viz. Massachusetts, Pennsylvania, and Virginia.

[31] Adopted by the votes of eight States against two,—Connecticut and Maryland voting in the negative.

[32] Pennsylvania, Maryland, ay, 2; Massachusetts, Connecticut, New York, Delaware, Virginia, North Carolina, South Carolina, Georgia, no, 8.

[33] Pennsylvania and Maryland, no.

[34] New York, Delaware, and Maryland, no.

[35] Nine States voted against it, and one (Delaware) was divided.

[36] The Federalist, No. 21.

[37] Madison, Elliot, V. p. 140.

[38] Eight States in the affirmative, two in the negative, and one divided.

[39] This was afterwards applied to the judges of the inferior courts also.

[40] Act 12 & 13 William III. ch. 2.

[41] Act 1 Geo. III. ch. 23.

[42] This was afterwards stricken out.

[43] Ante, Vol. I. Book III. Chap. V.

[44] Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the Encyclopédie Méthodique, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other Colony shall be admitted to the same unless such admission be agreed to by nine States.' When the plan of April, 1784, for establishing new States, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine States agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected,—1. That the words of the Confederation, 'no other Colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for 'admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow 'nine' States to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that 'the consent of so many States in Congress shall be first obtained as may at the time be competent'; thus leaving the question whether the eleventh Article applies to the admission of new States to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine States required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz. 'so many States in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the thirteenth Article, which forbids 'any alteration unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State.' The independence of the new States of Kentucky and Franklin will soon bring on the ultimate decision of all these questions." (Jefferson's Works, IX. 251.) That the admission of a new State into the Union could have been regarded as an alteration of the Articles of Confederation, within the meaning and intention of the thirteenth Article, seems scarcely probable. Such an admission would only have increased the number of the parties to the Union, but it would of itself have made no change in the Articles; and it was against alterations in the Articles that the provision of the thirteenth was directed. The objections which Mr. Jefferson informs us were raised in Congress to a deduction of the power from the eleventh Article, appear to be decisive. In truth, when the Articles of Confederation were framed, the subject of the admission of new States, so far as it had been considered at all, was connected with the difficult and delicate controversy respecting the western boundaries of some of the old States, and the equitable claim of the Union to become the proprietor of the unoccupied lands beyond those boundaries. An attempt was made to obtain for Congress, in the Articles of Confederation, power to ascertain and fix the western boundaries of those States, and to lay out the lands beyond them into new States. But it failed (ante, Vol. I. 291), and Congress could thereafter be said to possess no power to admit new States, except what depended on a doubtful construction of the Articles of Confederation.

Still, both when they invited the cessions of their territorial claims by the States of Virginia, New York, &c., and after those cessions had been made, Congress acted as if they had constitutional authority to form new States, and to admit them into the Union. (Ante, Vol. I. 292-308.) When the Ordinance of 1787, for the regulation and government of the Northwestern Territory, was adopted, the power to admit new States was again assumed. The Convention for forming the Constitution was, however, then sitting, and it may be that the framers of the Ordinance introduced into that instrument the stipulation that the new States should be admitted on an equal footing with the old ones, in the confidence that the constitutional power would be supplied by the Convention. At any rate, the provisions of the Ordinance, as well as those of the previous resolves of Congress on the same subject of the Northwestern Territory, and the position of Kentucky, Vermont, Maine, and Tennessee (then called Franklin), imposed upon the Convention an imperative necessity for some action that would open the door of the Union to new members.

[45] Ante, Vol. I. Book III. Chap. III. pp. 260-275.

[46] As the resolution was originally passed, it declared that "a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States." On account of the ambiguity of the expression "existing laws," and the controversies to which it might give rise, the provision was subsequently changed to a guaranty of "a republican form of government," and of protection against "invasion" and "domestic violence," as it now stands in Art. IV. Sect. 4 of the Constitution.

[47] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New York, Delaware, and Maryland voted against it (5).

[48] See Madison, Elliot, V. 157, 158, 183.

[49] Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, New York, New Jersey, no, 3; Delaware, Maryland, divided. See further on the subject of "Ratification," post, Index.

[50] The report was in the following words:—

"1. Resolved, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

"2. Resolved, That the national legislature ought to consist of two branches.

"3. Resolved, That the members of the first branch of the national legislature ought to be elected by the people of the several States for the term of three years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service, and under the national government, for the space of one year after its expiration.

"4. Resolved, That the members of the second branch of the national legislature ought to be chosen by the individual legislatures; to be of the age of thirty years, at least; to hold their offices for a term sufficient to insure their independence, namely, seven years; to receive fixed stipends, by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and under the national government, for the space of one year after its expiration.

"5. Resolved, That each branch ought to possess the right of originating acts.

"6. Resolved, That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union.

"7. Resolved, That the right of suffrage in the first branch of the national legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation; namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each State.

"8. Resolved, That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first.

"9. Resolved, That a national executive be instituted, to consist of a single person, to be chosen by the national legislature, for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for, to be ineligible a second time, and to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed stipend, by which he may be compensated for the devotion of his time to the public service, to be paid out of the national treasury.

"10. Resolved, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two thirds of each branch of the national legislature.

"11. Resolved, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature, to hold their offices during good behavior, and to receive punctually, at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution.

"12. Resolved, That the national legislature be empowered to appoint inferior tribunals.

"13. Resolved, That the jurisdiction of the national judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony.

"14. Resolved, That provision ought to be made for the admission of States lawfully arising without the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

"15. Resolved, That provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements.

"16. Resolved, That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States.

"17. Resolved, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.

"18. Resolved, That the legislative, executive, and judiciary powers within the several States ought to be bound by oath to support the Articles of Union.

"19. Resolved, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon."

[51] The regulation of commerce was not, any more than other specific powers, otherwise provided for than by these general descriptions.

[52] This, together with the Virginia plan, which was recommitted along with it, was referred to a second committee of the whole, June 15th.

[53] William Patterson of New Jersey.

[54] See the remarks of Wilson, Pinckney, and Randolph, as given in Madison, Elliot, V. 195-198.

[55] See his letter of September 16, 1803, addressed to Timothy Pickering; first published in Niles's Register, November 7, 1812.

[56] See the note at the end of this chapter.

[57] See the note at the end of this chapter.

[58] Mr. Brearly and Mr. Patterson.

[59] Louis XVI.

[60] Necker.

[61] Mr. Patterson had said, that, if they were to depart from the principle of equal sovereignty, the only expedient that would cure the difficulty would be to throw the States into hotchpot. To say that this was impracticable, would not make it so. Let it be tried, and they would see whether Massachusetts, Pennsylvania, and Virginia would accede to it. (Madison, Elliot, V. 194.)

[62] Elliot, V. 206-211.

[63] Madison, Elliot, V. 212. Journal, Elliot, I. 180. This vote was taken, and the committee of the whole were discharged, on the 19th of June.

[64] Rhode Island was never represented in the Convention, and the delegation of New Hampshire had not yet attended.

[65] In all these statements of the relative rank of the States, I compare the census of 1790 and that of 1850.

[66] The two great exceptions of course were Hamilton and Jay.

[67] See the candid and moderate letter of Messrs. Yates and Lansing to the legislature of the State, giving their reasons for not signing the Constitution. (Elliot, I. 480.)

[68] In the New Jersey plan, which the New York gentlemen (Hamilton excepted) supported, although the power to levy duties and the regulation of commerce were to be added to the existing powers of the old Congress, yet as these powers were to be exerted against the States, in the last resort, by force, it would only have been necessary for a State to place itself in an attitude of resistance, by a public act, and then the grant of power might have been considered to be revoked by the very act of resisting its execution.

[69] Three of the delegates of the State, James McHenry, Daniel of St. Thomas Jenifer, and Daniel Carroll, signed the Constitution.

[70] Yates's Minutes, Elliot, I. 433.

[71] Dr. Johnson of Connecticut.

[72] Mr. Hallam has traced the present constitution of Parliament to the sanction of a statute in the 15th of Edward II. (1322), which he says recognizes it as already standing upon a custom of some length of time. Const. History, I. 5.

[73] Mr. Hallam does not concur in what he says has been a prevailing opinion, that Parliament was not divided into two houses at the first admission of the commons. That they did not sit in separate chambers proves nothing; for one body may have sat at the end of Westminster Hall, and the other at the opposite end. But he thinks that they were never intermingled in voting; and, in proof of this, he adduces the fact that their early grants to the King were separate, and imply distinct grantors, who did not intermeddle with each others' proceedings. He further shows, that in the 11th Edward I. the commons sat in one place and the lords in another; and that in the 8th Edward II. the commons presented a separate petition or complaint to the King, and the same thing occurred in 1 Edward III. He infers from the rolls of Parliament, that the houses were divided as they are at present in the 8th, 9th and 19th Edward II. (See the very valuable Chapter VIII., on the English Constitution, in Hallam's Middle Ages, III. 342.)

[74] See on this subject Lieber on Civil Liberty, I. 209, edit. 1853.

[75] Connecticut upon this question voted with the majority.

[76] Madison, Elliot, V. 240.

[77] June 28.

[78] Madison, Elliot, V. 256.

[79] Madison, Elliot, V. 258.

[80] It was made at this stage by Dr. Johnson.

[81] The States opposed to an equality of suffrage in the first branch were Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia, 6; those in favor of it were Connecticut, New York, New Jersey, and Delaware. The vote of Maryland was divided.

[82] Mr. Baldwin of Georgia suggested this model.

[83] David Brearly.

[84] New York and New Jersey.

[85] The question was put upon Ellsworth's motion to allow the States an equal representation in the Senate. The vote stood, Connecticut, New York, New Jersey, Delaware, Maryland, ay. 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, no, 5; Georgia divided. The person who divided the vote of Georgia, and thus prevented a decision which must have resulted in a disruption of the Convention, was Abraham Baldwin. We have no account of the motives with which he cast this vote, except an obscure suggestion by Luther Martin, which is not intelligible. (Elliot, I. 356.) Baldwin was a very wise and a very able man. He was not in favor of Ellsworth's proposition, but he probably saw the consequences of forcing the minority States to the alternatives of receiving what they regarded as an unjust and unsafe system, or of quitting the Union. By dividing the vote of his State he prevented this issue, although he also made it probable that the Convention must be dissolved without the adoption of any plan whatever.

[86] The committee consisted of Gerry, Ellsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin.

[87] The committee was appointed on the 2d of July, and made their report on the 5th. The Convention in the interval transacted no business.

[88] See further as to this exclusive power of the House, post.

[89] Madison, Butler, Gouverneur Morris, and Wilson.

[90] Five States voted to retain it, three voted against it, and three were divided. This was treated as an affirmative vote. Elliot, V. 255.

[91] Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, ay 6; Pennsylvania, Virginia, South Carolina, no,3; Massachusetts, Georgia, divided. Ibid. 285, 286.

[92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King.

[93] They gave to New Hampshire, 2; Massachusetts, 7; Rhode Island, 1; Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware, 1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5; Georgia, 2.

[94] Elliot, V. 287, 288.

[95] This apportionment gave to New Hampshire, 3; Massachusetts, 8; Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3.

[96] See Mr. Gorham's explanation; Madison, Elliot, V. 288.

[97] Sherman and Gorham.

[98] Of North Carolina.

[99] Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, ay, 6; Delaware, Maryland, South Carolina, Georgia, no, 4. The votes of South Carolina and Georgia were given in the negative, because they desired that the blacks should be included in the census equally with the whites. For the same reason, as we shall see presently, those States voted against the other branch of the proposition, which would give but three fifths of the slaves. But upon what principle, unless it was from general opposition to all numerical representation, the State of Delaware should have voted with them on both of these features of the proposed census, is, I confess, to me inexplicable.

[100] Connecticut, Virginia, North Carolina, Georgia, ay, 4; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, no, 6. South Carolina voted in the negative, for a reason suggested in the previous note, ante, p. 153.

[101] See the note on the population of the slaveholding and non-slaveholding States, at the end of this chapter.

[102] See Mr. Jefferson's notes of this debate in the Congress of 1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp. 496-498.

[103] Samuel Chase of Maryland.

[104] See ante, Vol. I. pp. 210-213.

[105] See Mr. Madison's notes of the debate in the Congress of 1783, Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783). Ante, Vol. I. p. 213.

[106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and Governor Randolph. Elliot, V. 294-305.

[107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, ay, 6; New Jersey, Delaware, no, 2; Massachusetts, South Carolina, divided.

[108] The only opposition was from Delaware, the vote of which was divided.

[109] See the note at the end of this chapter.

[110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr. Spaight, no), ay, 5; Pennsylvania, Virginia, South Carolina, Georgia, no, 4; Massachusetts divided (Mr. Gerry, Mr. Strong, ay, Mr. King, Mr. Gorham, no). The delegates of New York were all absent; Messrs. Yates and Lansing left the Convention on the 5th of July, after the principle of popular representation had been adopted. Colonel Hamilton was absent on private business. If the two former had been present, the vote of the State would doubtless have been given in favor of the report, on account of the basis which it gave to the Senate.

[111] Elliot, V. 319.

[112] Mr. Madison, who was to the last a strenuous opponent of the equality of votes in the Senate, candidly and truly stated its merits in the 62d number of the Federalist, as they had been disclosed to him by subsequent reflection.

[113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the person appointed in the place of Patrick Henry, who declined to attend the Convention.

[114] New Jersey, Pennsylvania, Delaware, Virginia, ay, 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, no, 6.

[115] I understand Mr. Madison to have voted for this proposition, and that his view of it was, that it might be a necessary expedient to prevent a dangerous union of the legislative and executive departments. He said that the propriety of the plan of an executive during good behavior would depend on the practicability of instituting a tribunal for impeachments, as certain and as adequate in the case of the executive as in the case of the judges. His remarks, of course, were predicated upon the idea of a final necessity for retaining the choice of the executive by the legislature. In a note to his "Debates," appended to the vote on this question, it is said: "This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, and thereby to facilitate some final arrangement of a contrary tendency. The avowed friends of an executive 'during good behavior' were not more than three or four, nor is it certain they would have adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed friends of an executive during good behavior," I understand Mr. Madison to mean those who would have preferred that tenure, under all forms and modes of election. I can trace in the debates no evidence that any other person except Gouverneur Morris was indifferent to the mode in which the executive should be chosen, provided he held his place by this tenure. Whether Hamilton held this opinion, and adhered to it throughout, is a disputed point. In a letter to Timothy Pickering, written in 1803, he says that his final opinion was against an executive during good behavior, "on account of the increased danger to the public tranquillity incident to the election of a magistrate of this degree of permanency." In proof of this view of the subject, he remarks: "In the plan of a constitution which I drew up while the Convention was sitting, and which I communicated to Mr. Madison about the close of it, perhaps a day or two after, the office of President has no longer duration than for three years." (Niles's Register, November 7, 1812.) In this he was probably mistaken. (See Hamilton's Works, II. 401. Madison, Elliot, V. 584.)

[116] Ante, Chap. V.

[117] At this point (July 23) John Langdon and Nicholas Gilman took their seats as delegates from New Hampshire.

[118] See the letter of Messrs. Yates and Lansing to Governor Clinton, Elliot, I. 480.

[119] There seems to be a sound distinction between the two, which was pointed out by Mr. Madison. He said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league, or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a [State] law violating a treaty ratified by a pre-existing [State] law might be respected by the judges as a law, though an unwise or perfidious one. A [State] law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties was, that a breach of any one article by any of the parties freed the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact had always been understood to exclude such an interpretation." Elliot, V. 355, 356.

[120] Connecticut, Delaware, and Maryland voted for an amendment to the original resolution, which, if adopted, would have submitted the Constitution to the State legislatures. The resolution to refer it to assemblies chosen for the purpose by the people, was subsequently adopted, with the dissent of one State only, Delaware.

[121] For the history of the proceedings relating to the institution of the national Convention, see Ante, Vol. I. Book III. Chap. VI.

[122] By Mason.

[123] Maryland alone voted to retain it.

[124] As in the State of Massachusetts; where the sole money qualification required of a voter is the payment of an annual poll-tax of $1.25, or about five shillings sterling.

[125] Connecticut, Pennsylvania, and Delaware.

[126] See the title "Qualifications" in the Index.

[127] The committee of detail, appointed July 24, consisted of Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357.

[128] By a security against an emancipation of slaves, General Pinckney meant some provision for their extradition in cases of escape into the free States. This is apparent from the history of the extradition clause; and it is upon the notice thus given by him, and the action had upon this clause, that the statement often made, which assumes that the Constitution could not have been established without some provision on this subject—as well as upon general reasoning from the circumstances of the case—rests for its proof. See as to the origin and history of the extradition clause, post, p. 450.

[129] The resolutions, as referred, were as follows:—

"1. Resolved, That the government of the United States ought to consist of a supreme legislative, judiciary, and executive.

"2. Resolved, That the legislature consist of two branches.

"3. Resolved, That the members of the first branch of the legislature ought to be elected by the people of the several States for the term of two years; to be paid out of the public treasury; to receive an adequate compensation for their services; to be of the age of twenty-five years at least; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service of the first branch.

"4. Resolved, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of thirty years at least; to hold their offices for six years, one third to go out biennially; to receive a compensation for the devotion of their time to the public service; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term for which they are elected, and for one year thereafter.

"5. Resolved, that each branch ought to possess the right of originating acts.

"6. Resolved, That the national legislature ought to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

"7. Resolved, That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.

"8. Resolved, That, in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number, New Hampshire shall send three; Massachusetts, eight; Rhode Island, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, five; South Carolina, five; Georgia, three. But as the present situation of the States may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely: Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States,—

"9. Resolved, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18th of April, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly.

"10. Resolved, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated by the first branch.

"11. Resolved, That, in the second branch of the legislature of the United States, each State shall have an equal vote.

"12. Resolved, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of malepractice or neglect of duty; to receive a fixed compensation for the devotion of his time to the public service, to be paid out of the public treasury.

"13. Resolved, That the national executive shall have a right to negative any legislative act; which shall not be afterwards passed, unless by two third parts of each branch of the national legislature.

"14. Resolved, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature; to hold their offices during good behavior; to receive punctually, at stated times, a fixed compensation for their services, in which no diminution shall be made so as to affect the persons actually in office at the time of such diminution.

"15. Resolved, That the national legislature be empowered to appoint inferior tribunals.

"16. Resolved, That the jurisdiction of the national judiciary shall extend to cases arising under laws passed by the general legislature; and to such other questions as involve the national peace and harmony.

"17. Resolved, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

"18. Resolved, That a republican form of government shall be guaranteed to each State; and that each State shall be protected against foreign and domestic violence.

"19. Resolved, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.

"20. Resolved, That the legislative, executive, and judiciary powers, within the several States, and of the national government, ought to be bound, by oath, to support the Articles of Union.

"21. Resolved, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times, after the approbation of Congress, to be submitted to an assembly or assemblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon.

"22. Resolved, That the representation in the second branch of the legislature of the United States shall consist of two members from each State, who shall vote per capita.

"23. Resolved, That it be an instruction to the committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause, or clauses, requiring certain qualifications of property and citizenship in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States."

[130] The first draft of the Constitution, reported by the committee of detail, will be found in the Appendix.

[131] A general instruction had been given to report "certain qualifications of property and citizenship," for the executive, the judiciary, and the members of both houses of Congress.

[132] It is only necessary to mention the names of Hamilton, Wilson, Robert Morris, and Fitzsimmons, to show the entire impracticability of a rule that would have excluded all persons of foreign birth from being electors, or from being elected to office.

[133] I have called the naturalization power a practical control upon the States in the matter of suffrage. It is indirect, but it is effectual; for I believe that no State has ever gone so far as, by express statutory or constitutional provision, to admit to the right of voting persons of foreign birth who are not naturalized citizens of the United States.

[134] Art. VI. Sect. 2 of the reported draft.

[135] Art. IV. Sect. 2 of the reported draft.

[136] New Hampshire, Massachusetts, and Georgia alone voted to retain it. Elliot, V. 404.

[137] The Constitution of Pennsylvania had given to foreigners, after two years' residence, all the rights of citizens. There were similar provisions in nearly all of the States.

[138] The members who advocated the exemption were G. Morris, Mercer, Gorham, Madison, and Wilson; those who opposed it were Rutledge, Sherman, General Pinckney, Mason, and Baldwin. The States voting for it were Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, 5; the States voting against it were New Hampshire, Massachusetts, Delaware, North Carolina, South Carolina, Georgia, 6. The question elicited a good deal of feeling, and was debated with some warmth.

[139] Ante, Chap. VII.

[140] See ante, Chap. VIII.

[141] See post, as to the compromise on this subject.

[142] September 8.

[143] Elliot, V. 530.

[144] By a majority of one State. Ibid.

[145] That is to say, Congress were authorized to apportion one representative to thirty thousand inhabitants, but not to exceed that number. Constitution, Art. I. § 2.

[146] Let the reader consult Mr. Hallam's acute and learned discussion of this exclusive privilege of the House of Commons, (Const. Hist., III. 37-46,) and he will probably be satisfied, that, whatever theoretical reasons different writers may have assigned for it, its origin is so obscure, and its precise limits and purposes, deduced from the precedents, are so uncertain, that it can now be said to rest on no positive principles. Its basis is custom; which, having no definite beginning, is now necessarily immemorial. It would not be quite safe, therefore, to reason upon the well-defined provision of our Constitution, as if there were a close analogy between the situation of the two houses of Congress and the two branches of the British legislature. The English example certainly had an influence, in suggesting the plan of such a restriction; but care must be taken not to overlook the peculiar arrangements which made it so highly expedient, that it may be said to have been a necessity, even if there had been no British example.

[147] C. Pinckney. Elliot, V. 189. June 13.

[148] On the question for restraining the Senate from originating money bills, New York, Delaware, Virginia, ay, 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, no, 7. Ibid.

[149] Elliot, V. 285. Ante, Chap. VIII.

[150] August 8. For striking out, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, ay, 7; New Hampshire, Massachusetts, Connecticut, North Carolina, no, 4.

[151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V. 395-397.) It would be endless to cite the observations of different members, to show the purposes which they entertained. The reader, who desires to test the accuracy of my inferences in any of these descriptions, must study the debates, and compare, as I have done, the different phases which the subject assumed from time to time.

[152] Moved by Randolph, August 13. Elliot, V. 414.

[153] Ibid. 420.

[154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought forward as an amendment to the article (Art. VI. § 12) which was to define the powers of the two houses.

[155] August 31. Elliot, V. 503.

[156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from this committee, was confined to "bills for raising revenue"; and these were made subject to "alterations and amendments by the Senate."

[157] Ibid. 519.

[158] The history of this provision shows clearly that a bill for appropriating money may originate in the Senate.

[159] August 9. Elliot, V. 398-401. Massachusetts, Connecticut, Pennsylvania, and Maryland voted in the negative, and the vote of North Carolina was divided.

[160] May 31. Elliot, V. 133.

[161] Dickinson, Gerry, Mason.

[162] Sherman, Luther Martin, Ellsworth. On the naked proposition, moved by Ellsworth, July 2, to allow each State one vote in the Senate, Connecticut, New York, New Jersey, Delaware, Maryland, ay, 5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, no, 5; Georgia divided.

[163] Maryland alone voted against it.

[164] This suggestion was made by Hamilton. Elliot, V. 517.

[165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June 26.

[166] Ibid.

[167] In Horace Walpole's Memoirs of the Reign of George II., there is an amusing parallel—gravely drawn, however—between the mode in which his father, Sir Robert, "traded for members," and the manner in which Mr. Pelham carried on his corruption. Lord Mahon has called Sir Robert Walpole "the patron and parent of parliamentary corruption." (Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say that it originated under Charles II., and both admit that it was practised down to the close of the American war. (Hallam's Const. Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III. 541-549.) The latter, in a very masterly analysis of its origin and history, treats it as a local disease, incident to the growth of the English constitution. It must be confessed, that it had become chronic.

[168] I am quite aware of the danger of reasoning from the circumstances of one country to those of another, even in the case of England and the United States. But I avail myself, in support of the text, of the authority of a writer, whose high moral tone, and whose profound knowledge of the constitution on which he has written, unite to make it unnecessary that its history should be written again;—I mean, of course, Mr. Hallam. He pronounces it an extreme supposition, and not to be pretended, that Parliament was ever "absolutely, and in all conceivable circumstances, under the control of the sovereign, whether through intimidation or corrupt subservience." "But," he adds, "as it would equally contradict notorious truth to assert that every vote has been disinterested and independent, the degree of influence which ought to be permitted, or which has at any time existed, becomes one of the most important subjects in our constitutional policy." (Const. Hist., III. 351.)

[169] The position and functions of the judiciary, after proper measures have been taken to secure individual capacity and integrity, do admit and require what may be called absolute confidence. That is to say, their action is not only final and conclusive, but it is never legitimately open to the influence of any other department. The reason is, that their action does not proceed from individual discretion, but is regulated by the principles of a moral science, whose existence is wholly independent of the will of the particular judge. Whereas the action of both the executive and the legislative departments, within the limits prescribed to it by the fundamental law, involves the exercise, to a wide extent, of mere individual discretion. The remedy for a failure in the judge to justify the confidence reposed in him is, therefore, only by impeachment.

[170] The legislature of Massachusetts had, before Congress recommended the national Convention, instructed its delegates in Congress not to agree to any modification of the fifth Article of the Confederation, which prohibited the members of Congress from holding any office under the United States, for which they or any other person for their benefit could receive any salary, fee, or emolument. This instruction was repealed, by the unqualified manner in which the State accepted the recommendation for a national Convention. But it shows the sentiment of the State on this point, and it also shows the jealousy that was felt.

[171] See the assertion by Mr. Mason, and the admission by Mr. Madison, Elliot, V. 230, 232.

[172] Butler, Mason, and Rutledge.

[173] Two States only, Connecticut and New Jersey, voted for Madison's amendment. June 23. Elliot, V. 230-233.

[174] The disqualification, as applied to members of both houses, was incorporated into one clause. Art. VI. § 9 of the draft of the committee of detail. Elliot, V. 377.

[175] See the debate, August 14. Elliot, V. 420-425.

[176] There was a majority of only one State in favor of this principle. Elliot, V. 506.

[177] This provision received a unanimous vote. Ibid.

[178] For the history of what have been called place-bills, see Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339, 341, 342, 479, 480, 528.

[179] Mr. Justice Story has suggested, that, "if it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their constituents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the House of Representatives, where they might freely debate without a title to vote." (Commentaries on the Constitution, I. § 869.) An officer of an executive department, thus admitted to a seat in Congress, must have been placed there merely in virtue of his office, by a special provision. He could have represented no real constituency, and must therefore have had an anomalous position. A territorial delegate is admitted as the representative of a dependency, somewhat colonial in its nature, whose inhabitants are not on an equal footing with the constituencies of the States. He has therefore no vote. When speaking for the interests of those whom he represents, he is in somewhat the same attitude as counsel admitted to be heard at the bar of the House. Whether the head of an executive department could with dignity and convenience be placed in a similar position, admits at least of grave doubt.

[180] Art. I. § 4 of the Constitution.

[181] Art. VI. § 1 of the first draft.

[182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309.

[183] Elliot, V. 402.

[184] Elliot, V. 247.

[185] Art. VI. § 10 of the first draft. Elliot, V. 378.

[186] Massachusetts and South Carolina in the negative.

[187] See the discussion on Art. VI. § 10 of the first draft. Elliot, V. 425-427.

[188] Pennsylvania and Virginia.

[189] See Elliot, V. 507, 528, 529.

[190] As to the other provisions of the Constitution on this subject, see the Index, verb. Impeachment.

[191] Elliot, V. 405, 406. Art. I. § 5 of the Constitution.

[192] Elliot, V. 406. Constitution, Art. I. §§ 5, 6.

[193] Elliot, V. 407. Constitution, Art. I. § 5.

[194] Elliot, V. 407. Constitution, Art. I. § 5.

[195] Elliot, V. 507, 520. Constitution, Art. I. § 3.

[196] Ibid.

[197] Art. I. § 2.

[198] Constitution, Art. I. § 7.

[199] A question has been made, whether it is competent to two thirds of the members present in each house to pass a bill notwithstanding the President's objections, or whether the Constitution means that it shall be passed by two thirds of all the members of each branch of the legislature. The history of the "veto" in the Convention seems to me to settle this question. There was a change of phraseology, in the course of the proceedings on this subject, which indicates very clearly a change of intention. The language employed in the resolutions, in all the stages through which they passed, was, that "The national executive shall have a right to negative any legislative act, which shall not be afterwards passed by two third parts of each branch of the national legislature." This was the form of expression contained in the resolutions sent to the committee of detail; and if it had been incorporated into the Constitution, there could have been no question but that its meaning would have been, that the bill must be afterwards passed by two thirds of all the members to which each branch is constitutionally entitled. But the committee of detail changed this expression, and employed one which has a technical meaning, that meaning being made technical by the Constitution itself. Before the committee came to carry out the resolution relating to the President's negative, they had occasion to define what should constitute a "house" in each branch of the legislature; and they did so by the provision that a majority of each house shall constitute a quorum to do business. This expression, a "house," or "each house," is several times employed in the Constitution, with reference to the faculties and powers of the two chambers respectively, and it always means, when so used, the constitutional quorum, assembled for the transaction of business, and capable of transacting business. This same expression was employed by the committee when they provided for the mode in which a bill, once rejected by the President, should be again brought before the legislative bodies. They directed it to be returned "to that HOUSE in which it shall have originated,"—that is to say, to a constitutional quorum, a majority of which passed it in the first instance; and they then provided, that, if "two thirds of that HOUSE shall agree to pass the bill, it shall be sent, together with the objections, to the other HOUSE,... and if approved by two thirds of that HOUSE, it shall become a law." This change of phraseology, taken in connection with the obvious meaning of the term "house," as used in the Constitution when it speaks of a chamber competent to do business, shows the intention very clearly. It is a very different provision from what would have existed, if the phrase "two third parts of each branch of the national legislature" had been retained. (See Elliot, V. 349, 376, 378, 431 536.)

This view will be sustained by an examination of all the instances in which the votes of "two thirds" in either body are required. Thus, "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member." (Art. I. § 5.) The context of the same article defines what is to constitute a "house," and makes it clear that two thirds of a "house" may expel. That this was the intention is also clear from what took place in the Convention. Mr. Madison objected to the provision as it stood on the report of the committee, by which a mere majority of a quorum was empowered to expel, and, on his motion, the words "with the concurrence of two thirds" were inserted. (Elliot, V. 406, 407.) In like manner, the fifth Article of the Constitution empowers Congress, "whenever two thirds of both HOUSES shall deem it necessary," to propose amendments to the Constitution. The term "house" is here used as synonymous with a quorum.

It has been suggested, however, that the use of a positive expression, in relation to the action of the Senate upon treaties, throws some doubt upon the meaning of the term "two thirds," as used in other parts of the Constitution. A treaty requires the concurrence of "two thirds of the senators present"; and it has been argued that the omission of this term in the other cases shows that two thirds of all the members are required in those cases. But it is to be remembered, that the Constitution makes a general provision as to what shall constitute a house for the transaction of business; that when it means that a particular function shall not be performed by such a house, or quorum, it establishes the exception by a particular provision, as when it requires two thirds of all the States to be present in the House of Representatives on the choice of a President, and makes a majority of all the States necessary to a choice; and that whether the function of the Senate in approving treaties is or is not a part of the business which under the general provision is required to be done in a "house" or quorum consisting of a majority of all the members, the Constitution does not speak of this function as being done by a "house," but it speaks of the "advice and consent of the Senate," to be given "by two thirds of the senators present." The use of the term "present" was necessary, therefore, in this connection, because no term had preceded it which would guide the construction to the conclusion intended; but in the other cases, the previous use of the term "house," defined to be a majority of all the members, determines the sense in which the term "two thirds" is to be understood, and makes it, as I humbly conceive, two thirds of a constitutional quorum.

[200] Ante, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Passed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made.

[207] See ante, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See post, as to the power of the President to assemble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (§ 829), that this clause came into the Constitution in the revised draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385.

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

[212] See the remarks of Gouverneur Morris in the debate on the apportionment of representatives, in which he stated the dilemma precisely in this way. Elliot, V. 301.

[213] No candid man, said Rufus King, could undertake to justify to them a system under which slaves were to continue to be imported, and to be represented, while the exports produced by their labor were not to pay any part of the expenses of the government which would be obliged to defend their masters against domestic insurrections or foreign attacks. Elliot, V. 391.

[214] See the remarks of Mr. Ellsworth and General Pinckney, as reported by Mr. Madison, Elliot, V. 458, 459.

[215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. I have classed Mr. Ellsworth among the representatives of non-slaveholding States; for although there were between two and three thousand slaves in Connecticut at this time, provision had already been made for its prospective and gradual abolition. It was not finally extinct in that State until after the year 1840. The United States census for 1790 returned 2,759 slaves for Connecticut; the census for 1840 returned 17; in the census for 1850 none were returned. A like gradual abolition took place in New Hampshire, Rhode Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery was abolished by the State Constitution of 1780.

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

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

[218] Ibid. 392, 393.

[219] New Jersey.

[220] The opposition to a power to tax exports was not confined to the members from North and South Carolina and Georgia. Ellsworth and Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts considered such a power wrong in principle, and incapable of being exercised with equality and justice.

[221] The vote was taken (August 21) upon so much of the fourth section of the seventh article of the reported draft, as affirmed that "no tax or duty shall be laid by the legislature on articles exported from any State." Massachusetts, Connecticut, Maryland, Virginia (General Washington and Mr. Madison no), North Carolina, South Carolina, Georgia, ay, 7; New Hampshire, New Jersey, Pennsylvania, Delaware, no, 4.—If the subject had been left in this position, exports would have been taxable by the States. The plan of restraining the power of the States over exports was subsequently adopted, after the compromise involving the revenue and commercial powers of the general government had been settled.

[222] Elliot, V. 457-461.

[223] See ante, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power.

[224] Elliot, V. 460.

[225] Elliot, V. 470, 471.

[226] Two grave objections were made to this settlement respecting the importation of slaves. Mr. Madison records himself as saying, in answer to the motion of General Pinckney to adopt the year 1808, that twenty years would produce all the mischief that could be apprehended from the slave-trade, and that so long a term would be more dishonorable to the American character, than to say nothing about it in the Constitution. But the real question was, whether the power to prohibit the importation at any time could be acquired for the Constitution; and the facts show that it could have been obtained only by the arrangement proposed and carried. The votes of seven States against four, given for General Pinckney's motion, show the convictions then entertained. The other objection (urged by Roger Sherman and Mr. Madison) was, that to lay a tax upon imported slaves implied an acknowledgment that men could be articles of property. But it appears from the statements of other members, also recorded by Madison, that it was part of the compromise agreed upon in committee, that the slave-trade should be placed under the revenue power, in consideration of its not being placed at once within the commercial power. It also appears that the tax was made to apply to the "importation of such persons as the States might see fit to admit," until the year 1808, in order to include and to discourage the introduction of convicts.

But the principal object was undoubtedly the slave-trade; and this particular phraseology was employed, instead of speaking directly of the importation of slaves into the States of North Carolina, South Carolina, and Georgia, in order, on the one hand, not to give offence to those States, and on the other, to avoid offending those who objected to the use of the word "slaves" in the Constitution. Elliot, V. 477, 478.

[227] That part of the compromise relating to the slave-trade, &c. was adopted in Convention by the votes of New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, ay, 7; New Jersey, Pennsylvania, Delaware, Virginia, no, 4. Maryland, Virginia, North Carolina, and Georgia voted for a proposition made by C. Pinckney, to postpone the report, in order to take up a clause requiring all commercial regulations to be passed by two thirds of each house. But on the rejection of this motion, the report of the compromise committee, recommending that a two-thirds vote for a navigation act be stricken out, was agreed to, nem. con.; as was also the clause relating to a capitation tax.

[228] See the note on the American abolition of the slave-trade, ante, Vol. I. p. 460.

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

[230] General Pinckney. Ibid. 489.

[231] The point respecting the slave-trade was insisted upon by the delegates of those three States, both as a matter of State pride and a matter of practical interest. They regarded the increase of their slave population by new importations as a thing of peculiarly domestic concern, the control of which they were unwilling to transfer to the general government. But they also contended for a political right which their States intended to exercise. The following table, taken from the United States Census, shows that in the twenty years which elapsed from 1790 to 1810 during eighteen of which the importation of slaves could not be prohibited by Congress, the slaves of those three States increased in a ratio so much larger than the rate of increase after the year 1808, as to make it apparent that it was not a mere abstraction on which they insisted. The right to admit the importation of slaves was exercised, and was intended to be exercised;—as some of the delegates of the three States declared in the Convention.

Progress of the Slave Population from 1790 to 1850, showing the Increase per Cent in each Period of Ten Years.

	North Carolina.	South Carolina.	Georgia.
1790 to 1800	32.53	36.46	102.99
1800 to 1810[A]	26.65	34.35	77.12
1810 to 1820	21.43	31.62	42.23
1820 to 1830	19.79	22.62	45.35
1830 to 1840[B]	0.08	3.68	29.15
1840 to 1850	17.38	17.71	35.85

But while the census shows that the power to admit slaves was exercised freely during the twenty years that followed the adoption of the Constitution of the United States, it also shows that the States which insisted on retaining it for that period could well afford to surrender it at the stipulated time. In 1810, the proportion of the blacks of North Carolina to the whole population was 32.24 per cent, and in 1850 it was 36.36; in South Carolina the proportion in 1810 was 48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in 1850, 42.44. It is not probable, therefore, that the prosperity of those States has been diminished by the discontinuance of the slave-trade; for it is not likely that they could well sustain a much larger ratio of the blacks to the whites than that which now exists, and which will probably continue to be maintained at about the same point for a long period of time.

[A] The constitutional power of Congress to prohibit the importation took effect and was exercised in 1808.

[B] The great diminution in the rates of increase during this period is probably due to the removal of slaves into Alabama, Arkansas, Louisiana, and Texas.

[232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V. 378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See infra.

[236] August 21. Elliot, V. 451.

[237] August 22. Ibid. 462.

[238] See the proceedings which took place, August 22, 24, and 25. Elliot, V. 462, 463, 464, 471, 475-477.

[239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a security of the old debts of the United States.

[240] Ibid. 506, 507.

[241] Elliot, V. 478, 479.

[242] Constitution, Art. I. §9. See the proceedings which took place on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545.

[243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1.

[244] Elliot, V. 439.

[245] Ibid. 506, 507.

[246] Ibid. 434. Journal, Elliot, I. 245.

[247] See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page.

[248] Constitution, Art. I. § 8, clause 9.

[249] Ibid., clause 11.

[250] Elliot, V. 436.

[251] That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land.

[252] Madison, Elliot, V. 436, 437.

[253] In the clause as it passed the Convention, the offence of counterfeiting was placed with the other crimes which Congress was to "define" and "punish"; but, on the revision of the Constitution, counterfeiting was placed in a separate clause, under the term "to provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10.

[254] Elliot, V. 438, 439.

[255] Elliot, V. 440, 510, 511.

[256] Ibid. 442.

[257] Ibid. 443.

[258] Ibid. 440.

[259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12.

[260] Elliot, V. 443.

[261] Art. VII. § 1 of the first draft. Elliot, V. 379.

[262] Ibid. 440.

[263] Aug 18. Elliot, V. 445.

[264] Constitution, Art. I § 8, cl. 16.

[265] Art. I. § 8, cl. 15. Ibid. p. 467.

[266] Constitution, Art. I. § 8, cl. 18.

[267] Elliot, V. 447.

[268] See the statutes of Massachusetts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78, 79.

[269] Ante, Chap. IX.

[270] Elliot, V. 510, 511, 512.

[271] Ante, Vol. I. Book III. ch. 5, p. 291 et seq.

[272] Resolve of October 10, 1780. Journals, VI. 325.

[273] Resolve of April 23, 1784. Journals, IX. 153.

[274] March 16, 1785. Journals, X. 79. See ante, Vol. I. p. 299.

[275] See the note on the authorship of the Ordinance of 1787, in the Appendix to this volume.

[276] Ante, Chap. IV. p. 77, note.

[277] See the proceedings concerning Kentucky, in 1788. Journals, XIII. 16, 32, 51, 52, 55.

[278] The Federalist, No. 38.

[279] The passage quoted from Mr. Jefferson, ante, p. 77, also shows that strong doubts were felt in Congress, in 1784, respecting their power to admit new States formed out of unoccupied territory. Indeed, the whole of the proceedings upon Mr. Jefferson's measure of April 23, 1784, show that the powers of Congress over the territory that had been acquired under the cession of Virginia were very variously regarded by the different delegates. See Journals, IX. 138-156. The State of South Carolina voted against the resolve on its final passage, and after it had been modified to meet some of the objections raised.

[280] I think we are to understand Mr. Madison's assertion in the Federalist,—that what had been done by Congress in relation to the Northwestern Territory was without constitutional authority,—to mean, that it had been done without the authority of any proper constitutional provision. Mr. Madison himself, being a member of Congress in 1783, voted for the acceptance of a report, by the adoption of which Congress settled the conditions on which the cession of Virginia was to be received by the United States. These conditions embraced the whole of the three fundamental points, that the territory should be held and disposed of for the common benefit of the United States, that it should be divided into States, and that those States should be admitted into the Union. So that Mr. Madison was a party to the arrangement by which Congress undertook to hold out these promises to the States. (Journals of Congress for September 13, 1783, VIII. 355-359.) But he was not a member of Congress in 1784, when Mr. Jefferson's measure was adopted; and although he was a member in 1787, when the Ordinance was adopted, he was at that time in attendance upon the national Convention, and consequently never voted upon the Ordinance. His participation in the proceedings of the Convention, by which the necessary power was created, shows his sense of its necessity.

[281] See especially the cession by Virginia, of March 1, 1784. Journals of Congress, IX. 67. Cession by Massachusetts, April 19, 1785. Journals, X. 128. Cession by Connecticut, September 13, 1786. Journals, XI. 221. Also the resolve of Congress passed, in anticipation of these cessions, October 10, 1780. Journals, VI. 325.

[282] Resolution 10. Madison, Elliot, V. 128.

[283] Art. XVII. of the draft prepared by the committee of detail. Elliot, V. 381.

[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of asserting in the Constitution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, ay.

[291] When the Constitution was finally revised, the word "hereafter" was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "jurisdiction," although it was within the asserted limits, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, title, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII. 129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress passed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Constitution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Constitution. Perhaps it is needless for me to add that I entertain this opinion. But it is rejected by others, and, in the present state of judicial interpretation of this part of the Constitution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction.

[295] Constitution, Art. I. § 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Constitution, Art. I. § 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was passed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited ante, Vol. I. p. 452, note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.

[309] These were the 1st, 7th, 20th, and 21st of the resolutions. Ante, p. 190 et seq., note.

[310] "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

[311] The Constitution, Art. VI. (See Appendix.)

[312] July 17. Elliot, V. 322.

[313] The Constitution. Art. VI.

[314] Ibid. Art. III. § 2.

[315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381.

[316] The Constitution, Art. VII.

[317] Ante, p. 177, et seq. The resolutions may be found in Elliot, V. 541 (Sept. 13). But the proceedings on them are not found in Mr. Madison's Minutes, or in the Journal of the Convention. The official record of their unanimous adoption was laid before Congress on the 28th of September, 1787, and it bears date September 17th. It recites the presence in Convention of all the states that attended excepting New York, and in the place of that State stands "Mr. Hamilton from New York." This record precedes the official letter addressed by the Convention to Congress. See Journals of Congress for September 28, 1787, Vol. XII. pp. 149-165.

[318] See a speech made by Hamilton in the Convention of New York. Works, II. 462.

[319] 4 Blackstone's Com., Book IV. ch. 6.

[320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V. 379.

[321] Elliot, V. 450.

[322] The effect of these words is as if the statute read "adhering to the enemy by giving him aid and comfort," and not as if they were two separate offences.

[323] See the debate, Elliot, V. 447-451.

[324] Ibid. Art. III. § 3 of the Constitution.

[325] August 24. Elliot, V. 472, 473.

[326] The Constitution was published in the Pennsylvania Journal, Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as we should now say, "nominated" General Washington for the Presidency.

[327] Delaware. Elliot, V. 519.

[328] I allude, of course, to the case of King George III., which had not happened when our Constitution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position. But there is a legal process for determining the capacity of every person to discharge private duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Constitution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety.

[329] This clause was inserted, by unanimous consent, on the motion of Mr. King and Mr. Gerry, September 6. Elliot, V. 515.

[330] See post, p. 621.

[331] Congress, however, have not only provided that the President pro tempore of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President shall both become vacant, a new appointment of electors shall be ordered, and a new election made. The constitutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Constitution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer shall act as President, on the death, &c. of both the President and Vice-President, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to substitute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used by Governor Randolph. Either of these expressions, when incorporated into the Constitution, would have to be construed with reference to the whole system prescribed by the Constitution for filling the executive branch of the government. Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then act as President, that is, shall hold and exercise the executive power, and such officer is to act accordingly, until the disability be removed, or a President shall be elected. It would seem, therefore, that when the officer designated by Congress is required to act as President, the powers and duties of the office are devolved upon him for the residue of the term of four years, in a case of vacancy by death, removal, or resignation; for the terms "until a President shall be elected" certainly do not import any express authority to order a new election; and although there is a general authority in Congress to fix the day for the election of a President, it must be a President chosen for the term of four years.

[332] Elliot, V. 462, 507, 521, 522.

[333] He anticipated that it would be so regarded. Hamilton, who was in all his views, as unlike Franklin as any man could be, seconded the motion, out of respect for the mover.

[334] Elliot, V. 380.

[335] Connecticut, New Jersey, Delaware, and North Carolina voted against it.

[336] Elliot, V. 446, 462.

[337] Mason, Franklin, Wilson, Dickinson, and Madison.

[338] Elliot, V. 525.

[339] Those who are not familiar with the precise structure of the American government will probably be surprised to learn that what is in practice sometimes called the "Cabinet" has no constitutional existence as a directory body, or one that can decide anything. The theory of our government is, that what belongs to the executive power is to be exercised by the uncontrolled will of the President. Acting upon the clause of the Constitution which empowers the President to call for the opinions in writing of the heads of departments, Washington, the first President, commenced the practice of taking their opinions in separate consultation; and he also, upon important occasions, assembled them for oral discussion, in the form of a council. After having heard the reasons and opinions of each, he decided the course to be pursued. The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted a somewhat different practice. When a question occurred of sufficient magnitude to require the opinions of all the heads of departments, he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one. But he always seems to have considered that he had the power to decide against the opinion of his cabinet. That he never, or rarely, exercised it, was owing partly to the unanimity in sentiment that prevailed in his cabinet, and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When there were differences of opinion, he aimed to produce a unanimous result by discussion, and almost always succeeded. But he admits that this practice made the executive, in fact, a directory. Jefferson's Works, V. 94, 568, 569.

[340] Elliot, V. 141, 142.

[341] Elliot, V. 343, 344.

[342] The Constitution having vested in Congress power to provide for calling the militia into the service of the United States, to execute the laws, suppress insurrections, and repel invasions, the President cannot call out the militia unless authorized to do so by Congress. But with respect to the employment of the army and navy for any executive purpose, it may be doubted whether any authority from Congress is necessary; as it may also be doubted whether Congress can exercise any control over the President in the use of the land or naval forces, either in the execution of the laws, or in the discharge of any other executive duty.

[343] Elliot, V. 480.

[344] Ibid. 549.

[345] It was to be one of the distinct functions of the President "to receive ambassadors and other public ministers."

[346] Mr. Madison so thought. Elliot, V. 524.

[347] Ibid.

[348] The several votes taken upon different aspects of the rule for the ratification of treaties make the theory quite clearly what is stated in the text. See the proceedings, September 7, 8. Elliot, V. 524, 526.

[349] This power embraces of course only those offices the appointment to which is vested in the President and Senate.

[350] The Constitution (Art. II. § 2) seems to contemplate ambassadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Constitution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Constitution, namely, original jurisdiction in certain enumerated cases.

[351] In the text of the Constitution, the President's power to adjourn the two houses of Congress in case of a disagreement follows immediately after his power to convene them on "extraordinary occasions"; and it has, therefore, been suggested that his power to adjourn them is confined to cases where they have been "extraordinarily" convened under the first power. But it is to be observed that the whole of the third section of Article II. contains an enumeration of separate powers of the President, recited seriatim. The power to convene Congress is one power; and it extends only to "extraordinary" occasions, because the Constitution itself, or a law, convenes them at a fixed period, and thus makes the ordinary occasions. But the power to adjourn the two houses to a particular time, in cases of disagreement as to the time, is a separate and general power, because the reason for which it was given at all applies equally to all sessions. That reason is, that there may be a peaceful termination of what would otherwise be an endless and dangerous controversy. Both Hamilton in the Federalist and Judge Story in his Commentaries have treated this as a separate and general power. (The Federalist, No. 77. Story on the Constitution, § 1563.)

[352] Elliot, V. 550.

[353] Elliot, V. 483.

[354] No. 81.

[355] See the seventh Amendment.

[356] By "cases arising under the Constitution," &c. the framers of that instrument did not mean all cases in which any department of the government might have occasion to act under provisions of the Constitution, but all cases of a judicial nature; that is, cases which, having assumed the form of judicial proceedings between party and party, involve the construction or operation of the Constitution of the United States. Elliot, V. 483.

[357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3.

[358] Elliot, V. 429.

[359] See and compare Art. IV. of the Confederation and Art. IV. § 2 of the Constitution.

[360] So far as the proceedings in the Convention are to be regarded as a guide to construction, it appears clearly that the clause which empowers Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof," was intended to give a power to declare the effect of the acts, records, and judicial proceedings of any State, when offered in evidence in another State, as well as to prescribe the mode of proving them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion on this clause in Story's Commentaries, §§ 1302-1313.

[361] Elliot, V. 487.

[362] July 23d. Elliot, V. 357.

[363] Art. XIV. of the report of the committee of detail.

[364] These are the words of Mr. Madison's Minutes. Elliot, V. 487. This was on the 26th of August.

[365] Madison, ut supra. The motion was made by Butler and Pinckney, according to Mr. Madison.

[366] By Wilson.

[367] By Sherman.

[368] Madison, ut supra. August 28.

[369] The reader who will consult a paper in the fourth volume of the Collections of the Massachusetts Historical Society (p. 194), written by Dr. Belknap, in 1795, will find that slavery, in the sense in which the term is now commonly understood, existed in Massachusetts Bay as early as 1630. The proof of it consists,—1. In the provisions of the colonial laws and ordinances, which recognize and regulate a relation very different from that of service for hire. On this subject, the early colonists of Massachusetts held and practised the law of Moses. They regarded it as lawful to buy and sell "slaves taken in lawful war," or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law. But they punished man-stealing capitally, re-enacting expressly the 16th verse of the 21st chapter of Exodus; and when there were any negroes in their jurisdiction who had been stolen, or "fraudulently" acquired in Africa, they endeavored to send them back again. 2. In the actual presence of negro slaves, brought from Africa, who had been "lawfully" acquired, that is, by fair purchase from those who held them as prisoners of war. These existed to some extent in the Colony in 1638, and were numerous in 1673; and of course were included in all the legislation of that period respecting service, being sometimes described as "slaves," and sometimes by the more general and comprehensive term of "servants."—Slavery by judicial sentence was inflicted for no higher crimes than theft and burglary. Thus at a Quarter Court holden at Boston the 4th day of the 10th month, 1638, "John Hazlewood being found guilty of severall thefts and breaking into severall houses, was censured to be severely whipped and delivered up a slave to whom the Court shall appoint." (Shurtleff's Edition of Records of Massachusetts, I. 246.) Many of the Indians taken prisoners in King Philip's war, who had formerly submitted to the Colonial government and had been called "Praying Indians" from their supposed conversion to Christianity, were adjudged guilty of "rebellion," and were sold into slavery in foreign countries. Dr. Belknap says that some of them found their way back again, and took a severe revenge on the English in a subsequent war. (Hist. Soc. Coll. ut supra.)

[370] Mr. Madison stated in the Convention of Virginia in which the Constitution was ratified, that "this clause was expressly inserted, to enable owners of slaves to reclaim them." (Elliot's Debates, III. 453.)

[371] August 29. Elliot, V. 492.

[372] I am not aware of any more positive evidence than that above given in the text, that this clause of the Constitution was expressly made in the Convention a condition of assent by any of the States.

[373] In 1790, the slaves numbered 697,897, and the whites 3,172,464. In 1850, the slaves had increased to 3,204,313, and the whites to 19,533,068.

[374] Elliot, V. 332, 333.

[375] First draft of the Constitution, Art. XVIII. Elliot, V. 381.

[376] Constitution, Art. IV. § 4.

[377] Elliot, V. 157.

[378] Elliot, V. 376.

[379] Elliot, V. 530-532.

[380] Constitution, Art. I § 9.

[381] Ibid. Art. I. § 3.

[382] Elliot, V. 532.

[383] Ibid. 551, 552. Constitution, Art. I § 3.

[384] Constitution, Art. VI.

[385] Elliot, V. 499.

[386] Maryland.

[387] Works of Daniel Webster, VI. 227.

[388] The vote, however, was only six States to four. Elliot, V. 500.

[389] Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing.

[390] 1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Constitution.

[391] September 17.

[392] This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success.

[393] Mr. Madison has given the principal grounds of objection which these gentlemen felt to the Constitution. It is not necessary to repeat them here, as they were nearly all met by the subsequent amendments, so far as they were special, and did not relate to the general tendency of the system. (See Madison, Elliot, V. 552-558.)

[394] My authority for this anecdote is the Pennsylvania Journal of November 14, 1787, where it was stated by a writer who dates his communication from Elizabethtown, November 7.

[395] It may be amusing to Americans of this and future generations to know who this personage was for whom it was rumored that the Loyalists desired to "send," and whose advent as a possible ruler of this country was a vague apprehension in the popular mind for a good while, and finally came to be imputed as a project to the framers of the Constitution. The Bishop of Osnaburg was no other than the late Duke of York, Frederick, the second son of King George III.; a prince whose conduct as commander-in-chief of the army, in consequence of the sale of commissions by his mistress, one Mrs. Clarke, became in 1809 a subject of inquiry, leading to the most scandalous revelations, before the House of Commons. The Duke was born in 1763, and was consequently, at the period spoken of in the text, at the ripe age of twenty-four. When about a year old (1764), he was chosen Bishop of Osnaburg. This was a German province (Osnabrück), formerly a bishopric of great antiquity, founded by Charlemagne. At the Reformation most of the inhabitants became Lutherans, and by the Treaty of Westphalia it was agreed that it should be governed alternately by a Roman Catholic and a Protestant Bishop. In 1802 it was secularized, and assigned as an hereditary principality to George III., in his capacity of King of Hanover. Prince Frederick continued to be called by the title of Bishop of Osnaburg, until he was created Duke of York. I am not aware that the whispers of his name in the secret counsels of our Loyalists, as a proposed king for America, became known in England. Whether such knowledge would have excited a smile, or have awakened serious hopes, is a question on which the reader can speculate. But it is certain that there were persons in this country, and in the neighboring British Provinces, who had long hoped for a reunion of the American States with the parent country, through this or some other "mad project." Colonel Humphreys, (who had been one of Washington's aides,) writing to Hamilton, from New Haven, under date of September 16, 1787, says: "The quondam Tories have undoubtedly conceived hopes of a future union with Great Britain, from the inefficacy of our government, and the tumults which prevailed during the last winter. I saw a letter, written at that period, by a clergyman of considerable reputation in Nova Scotia, to a person of eminence in this State, stating the impossibility of our being happy under our present constitution, and proposing (now we could think and argue calmly on all the consequences), that the efforts of the moderate, the virtuous, and the brave should be exerted to effect a reunion with the parent state.... It seems, by a conversation I have had here, that the ultimate practicability of introducing the Bishop of Osnaburg is not a novel idea among those who were formerly termed Loyalists. Ever since the peace it has been occasionally talked of and wished for. Yesterday, where I dined, half jest, half earnest, he was given as the first toast. I leave you now, my dear friend, to reflect how ripe we are for the most mad and ruinous project that can be suggested, especially when, in addition to this view, we take into consideration how thoroughly the patriotic part of the community, the friends of an efficient government, are discouraged with the present system, and irritated at the popular demagogues who are determined to keep themselves in office, at the risk of everything. Thence apprehensions are formed, that, though the measures proposed by the Convention may not be equal to the wishes of the most enlightened and virtuous, yet that they will be too high-toned to be adopted by our popular assemblies. Should that happen, our political ship will be left afloat on a sea of chance, without a rudder as well as without a pilot." (Works of Hamilton, I. 443.) In a grave and comprehensive private memorandum, drawn up by Hamilton soon after the Constitution appeared, in which he summed up the probabilities for and against its adoption, and the consequences of its rejection, the following occurs, as among the events likely to follow such rejection: "A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be, the establishment of a son of the present monarch in the supreme government of this country, with a family compact." (Works, II. 419, 421.)

[396] Pennsylvania Journal, August 22, 1787.

[397] The history of the term "Federal," or "Federalist," offers a curious illustration of the capricious changes of sense which political designations often undergo, within a short period of time, according to the accidental circumstances which give them their application. During the discussions of the Convention which framed the Constitution of the United States, the term federal was employed in its truly philosophic sense, to designate the nature of the government established by the Articles of Confederation, in distinction from a national system, that would be formed by the introduction of the plan of having the States represented in the Congress in proportion to the numbers of their inhabitants. But when the Constitution was before the people of the States for their adoption, its friends and advocates were popularly called Federalists, because they favored an enlargement of the Federal government at the expense of some part of the State sovereignties, and its opponents were called the Anti-Federalists. In this use, the former term in no way characterized the nature of the system advocated, but merely designated a supporter of the Constitution. A few years later, when the first parties were formed, in the first term of Washington's Administration, it so happened that the leading men who gave a distinct character to the development which the Constitution then received had been prominent advocates of its adoption, and had been known therefore as Federalists, as had also been the case with some of those who separated themselves from this body of persons and formed what was termed the Republican, afterwards the Democratic party. But the prominent supporters of the policy which originated in Washington's administration continued to be called Federalists, and the term thus came to denote a particular school of politics under the Constitution, although it previously signified merely an advocacy of its adoption. Thus, for example, Hamilton, in 1787, was no Federalist, because he was opposed to the continuance of a federal, and desired the establishment of a national government. In 1788, he was a Federalist, because he wished the Constitution to be adopted; and he afterwards continued to be a Federalist, because he favored a particular policy in the administration of the government, under the Constitution. It was in this latter sense that the term became so celebrated in our political history. The reader will observe that I use it, of course, in this work, only in the sense attached to it while the Constitution was before the people of the States for adoption.

[398] A striking proof of the importance attached by the people to the opinions of Washington and Franklin may be found in a controversy carried on for a short time in the newspapers of Philadelphia and New York, after the Constitution appeared, whether those distinguished persons really approved what they had signed.

[399] All but Maryland and Rhode Island.

[400] Passed September 28, 1787. Journals, XII. 149-166.

[401] This is the substance of a careful account given by General Knox to General Washington. (Works of Washington, IX. 310, 311.)

[402] A town on the Hudson River, seventy-five miles north of the city of New York.

[403] He went abroad in the summer of 1784.

[404] Compare Mr. Jefferson's autobiography, and his correspondence, in the first, second, and third volumes of his collected works (edition of 1853), and the letters of Mr. Madison.

[405] In the newspapers of the time there is to be found a story that Mr. Mason was very roughly received on his arrival at the city of Alexandria, after the adjournment of the national Convention, on account of his refusal to sign the Constitution. The occurrence is not alluded to in Washington's correspondence, although he closely observed Mr. Mason's movements, and regarded them with evident anxiety. The story is told in the Pennsylvania Journal of October 17, 1787,—a strong Federal paper. I know of no other confirmation of it than the fact that the people of Alexandria embraced the Constitution from the first with "enthusiastic warmth," according to the account given by General Washington to one of his correspondents. (Works, IX. 272.)

[406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346.

[407] This debate of three days in the South Carolina legislature was one of the most able of all the discussions attending the ratification of the Constitution. Mr. Lowndes was overmatched by his antagonists, but he resisted with great spirit, finally closed with the declaration that he saw dangers in the proposed government so great, that he could wish, when dead, for no other epitaph than this: "Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America." He lived to find his desired epitaph a false prophecy. He was the father, of the late William Lowndes, who represented the State of South Carolina in Congress, with so much honor and distinction, during the administration of Mr. Madison.

[408] Mr. Martin's objections extended to many of the details of the Constitution, but his great argument was that directed against its system of representation, which he predicted would destroy the State governments.

[409] Hamilton, Works, II. 419, 420.

[410] Hamilton, Works, II. 421.

[411] See an account of him, ante, Vol. I. Book III. Chap. XIV.

[412] This was a mistake. On the 12th of September, Messrs. Gerry and Mason moved for a committee to prepare a bill of rights, but the motion was lost by an equal division of the States. Elliot, V. 538.

[413] Mr. McKean, although his residence was at Philadelphia, represented the lower counties of Delaware in Congress from 1774 to 1783. In 1777 he was made Chief Justice of Pennsylvania, being at the same time a member of Congress and President of the State of Delaware.

[414] The Constitution was ratified by a vote of 46 to 23.

[415] This was at a meeting held at Harrisburg, September 3d, 1788.

[416] The opposite parties were so much excited against each other, and the course of New Jersey was viewed with so much interest at Philadelphia among the "Federalists," that a story found currency and belief there, to the effect that Clinton, the Governor of New York, had offered the State of New Jersey, through one of its influential citizens, one half of the impost revenue of New York, if she would reject the Constitution. The preposterous character of such a proposition stamps the rumor with gross improbability. But its circulation evinces the anxiety with which the course of New Jersey was regarded in the neighboring States, and it is certain that the opposition in New York made great efforts to influence it.

[417] The situation of Georgia was brought to the notice of Washington immediately after his first inauguration as President of the United States, in an Address presented to him by the legislature of the State, in which they set forth two prominent subjects on which they looked for protection to "the influence and power of the Union." One of these was the exposure of their frontier to the ravages of the Creek Indians. The other was the escape of their slaves into Florida, whence they had never been able to reclaim them. Both of these matters received the early attention of Washington's administration.

[418] He stated the annual expenditure of the government, including the interest on the foreign debt, at £260,000 (currency), and then showed that, in the three States of Massachusetts, New York, and Pennsylvania, £160,000 or £180,000 per annum had been raised by impost.

[419] Fragments only of the debates in the convention of Connecticut are known to be preserved. They may be found in the second volume of Elliot's collection.

[420] Three of them, Widgery, Thompson, and Nason, were from Maine; there was a Dr. Taylor from the county of Worcester, and a Mr. Bishop from the county of Bristol. These gentlemen carried on the greater part of the discussion against the Constitution.

[421] Theophilus Parsons, afterwards the celebrated Chief Justice of Massachusetts.

[422] Yeas, 187; nays, 168.

[423] This was the first of a series of similar pageants, which took place in the other principal cities of the Union, in honor of the ratification of the Constitution.

[424] The form of ratification and the amendments introduced by Hancock into the convention of Massachusetts were drawn by Theophilus Parsons. They were probably communicated to General Sullivan, the President of the New Hampshire convention, by his brother, James Sullivan, an eminent lawyer of Boston, afterwards Governor of Massachusetts. The reader should compare the Massachusetts amendments with those of the other States whose action followed that of Massachusetts, for the purpose of seeing the influence which they exerted. (All the amendments may be found in the Journals of the Old Congress, Vol. XIII., Appendix.) See also post, Chap. III., as to the effect of the course of Massachusetts on the mind of Jefferson.

[425] This little vessel sailed from Baltimore on the 1st of June, and arrived at Mount Vernon, "completely rigged and highly ornamented," on the 8th. It was a fine specimen of the then state of the mechanic arts. See an account of it in Washington's Works, IX. 375, 376.

[426] There was then no land communication between the two places, that could have carried intelligence in less than a month. A letter written by General Pinckney to General Washington on the 24th of May, announcing the result in South Carolina, was more than four weeks on its way to Mount Vernon. (Washington's Works, IX. 389.) General Washington had received the same news by way of Baltimore soon after its arrival there.

[427] See the course of argument of Edward Rutledge, General Pinckney, Robert Barnwell, Commodore Gillon, and others, as given in Elliot, IV. 253-316.

[428] See the Amendments, Journals of the Old Congress, Vol. XIII., Appendix.

[429] Notice of Henry, in the National Portrait Gallery of Distinguished Americans, Vol. II. Mr. Jefferson has said that Henry's power as a popular orator was greater than that of any man he had ever heard, and that Henry "appeared to speak as Homer wrote." (Jefferson's Works, I. 4.)

[430] It is said in the newspapers of that period that Henry was on his legs in one speech for seven hours. I think it must have been the one from which I have made the abstract in the text. But he made a great many speeches, quite as earnest.

[431] There has been, I am aware, a modern scepticism concerning Patrick Henry's abilities; but I cannot share it. He was not a man of much information, and he had no great breadth of mind. But he must have been, not only a very able debater, but a good parliamentary tactician. The manner in which he carried on the opposition to the Constitution in the convention of Virginia, for nearly a whole month, shows that he possessed other powers besides those of great natural eloquence.

[432] Elliot, III. 152, Debates in the Virginia Convention.

[433] Under date of February 7, 1788, Mr. Jefferson wrote from Paris, in a private letter to a gentleman in Virginia, as follows:—"I wish, with all my soul, that the nine first conventions may accept the new Constitution, because this will secure to us the good it contains, which I think great and important. But I equally wish that the four latest conventions, whichever they be, may refuse to accede to it till a Declaration of Rights be annexed. This would probably command the offer of such a Declaration, and thus give to the whole fabric, perhaps, as much perfection as any one of that kind ever had. By a Declaration of Rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the habeas corpus, no standing armies. These are fetters against doing evil, which no honest government should decline. There is another strong feature in the new Constitution which I as strongly dislike. That is, the perpetual re-eligibility of the President. Of this, I expect no amendment at present, because I do not see that anybody has objected to it on your side the water. But it will be productive of cruel distress to our country, even in your day and mine. The importance to France and England to have our government in the hands of a friend or foe, will occasion their interference by money, and even by arms. Our President will be of much more consequence to them than a king of Poland. We must take care, however, that neither this nor any other objection to the new form produces a schism in our Union. That would be an incurable evil, because near friends falling out never reunite cordially; whereas, all of us going together, we shall be sure to cure the evils of our new Constitution before they do great harm." (Jefferson's Works, II. 355.) That Mr. Jefferson intended this letter should be used as it was in the convention of Virginia, is not probable; but it would seem from the care he took to state a plan of proceeding in the adoption of the Constitution, that he intended his suggestions should be known. His subsequent opinion will be found in a note below.

[434] Alluding, evidently, to Washington.

[435] See the speeches of Pendleton and Madison, in reply to Henry. Elliot, III. 304, 329.

[436] Elliot, III. 314.

[437] On the 27th of May, 1788, Mr. Jefferson wrote from Paris to Colonel Carrington, as follows:—"I learn with great pleasure the progress of the new Constitution. Indeed, I have presumed it would gain on the public mind, as I confess it has on my own. At first, though I saw that the great mass and groundwork was good, I disliked many appendages. Reflection and discussion have cleared off most of those. You have satisfied me as to the query I had put to you about the right of direct taxation. My first wish was that nine States would adopt it, and that the others might, by holding off, produce the necessary amendments. But the plan of Massachusetts is far preferable, and will, I hope, be followed by those who are yet to decide," &c. (Jefferson's Works, II. 404.) Colonel Carrington, the person to whom this letter was addressed, was a member of Congress, and received it at New York, about the 2d of July, when it was seen by Madison. (See a letter from Madison to E. Randolph of that date, among the Madison papers. Elliot, V. 573.)

[438] See an account of this matter, ante, Vol. I. Book III. Chap. V. pp. 309-327.

[439] They meant the four New England States and New York, Pennsylvania, and Maryland. New Jersey and Delaware were supposed to be with the four Southern States on this question.

[440] Ten would be two thirds of the constitutional quorum of fourteen; so that the argument supposed only a quorum to be present.

[441] See Mr. Madison's explanation in the convention of Virginia. Elliot, III. 346.

[442] Ante, Book III. Chap. V., Vol. I. pp. 324-327.

[443] Debates in the Virginia Convention, Elliot, III. 344-347.

[444] He thought at this moment that if the Constitution should be lost, the Mississippi question would be the cause. The members from Kentucky were then generally hostile. (See a letter from Madison to Hamilton, of June 16th, Hamilton's Works, I. 457.)

[445] See his correspondence with Madison, Works, I. pp. 450-469.

[446] Works, I. 462.

[447] See the latest letter which he had then received from Madison. Ibid. 461.

[448] It has been supposed that this was not so, but that Hamilton's messenger arrived at Richmond before the final action of the Virginia convention, and so that the decision of New Hampshire had an important influence. I think this is clearly a mistake. I have traced the progress of the messenger in the newspapers of that time, and find his arrival at New York and Philadelphia chronicled as it is given in the text. The dates are therefore decisive. It appears also from Mr. Madison's correspondence with Hamilton, that he did not receive the despatch about New Hampshire until the 31st. (Hamilton's Works, I. 463.) The ratification passed the Virginia convention on the 25th, and that body was dissolved on the 27th. There is no trace in the Virginia debates of any authentic news from New Hampshire. On the contrary, it was assumed by one of the speakers, Mr. Innes, on the day of their ratification, that the Constitution then stood adopted by eight States. (Elliot, III. 636.)

[449] The form of ratification embraced the recitals given in the text respecting the powers of Congress. It was adopted by a vote of 89 to 79, on the 25th of June, 1788. I do not go into the particular consideration of the amendments proposed by several of the State conventions, because the present work is confined to the origin, the formation, and the adoption of the Constitution, and no State that ratified the instrument proposed by the national Convention made amendments a condition. The examination of the amendments proposed, therefore, belongs to the history of the Constitution subsequent to its inauguration. They may all be found in the Appendix to the thirteenth volume of the Journals of the Old Congress.

[450] Debates in Virginia Convention, Elliot, III. 652.

[451] Madison's letters to Hamilton, Works of Hamilton, I. 462, 463.

[452] Letter to Madison, Works of Hamilton, I. 464.

[453] Ibid. 465.

[454] It was reported in the newspapers of that period that the Constitution was adopted in this convention by 30 yeas against 25 nays. But the official record gives the several votes as they are stated in the text; from which it appears that, on the critical question of a conditional or unconditional ratification, the majority was only 2. In truth, the ratification of New York barely escapes the objection of being a qualified one, if it does in fact escape it.

[455] Works of Washington, IX. 408.

[456] Madison's letter to Washington, August 24, 1788, Works of Washington, IX. 549.

[457] See his letter to Governor Livingston of New Jersey, August 29, 1788, Works, I. 471.

[458] Some of the most elaborate of these devices were borne by the "Block and Pump Makers" and the "Tallow-Chandlers."

[459] This resolution was adopted August 2, 1788, by 184 yeas to 84 nays. North Carolina Debates, Elliot, IV. 250, 251.

[460] North Carolina Debates, Elliot, IV. 250, 251.

[461] The march of the country people upon Providence, on the 4th of July, 1788, and the manner in which they compelled the inhabitants of the town to abandon their purpose of celebrating the adoption of the Constitution by nine States,—dictating even their toasts and salutes,—reads more like a page in Diedrich Knickerbocker's History of New York than like anything else. But it is a veracious as well as a most amusing story. (See Staples's Annals of Providence, pp. 329-335.)

[462] There were 2,708 votes thrown against it, and 232 in its favor. This occurred in March, 1788.

[463] This copy of the Constitution has been compared with the Rolls in the Department of State, and is punctuated and otherwise printed in exact conformity therewith.

[464] Altered by the 12th Amendment.

[465] Although this work does not embrace the history of the Amendments, they are printed here in connection with the Constitution, for the convenience of the reader.