The Judge reiterates again and again his singular idea of the novelty of our doctrines. He says “politicians of a later date are its authors. It was unknown to those who made the Constitution—as well as to those writers and speakers who afterwards attacked and defended it.” To support this idea, he refers freely to the secret proceedings and debates of the Convention by CHIEF JUSTICE YATES, and LUTHER MARTIN'S communication to the Maryland Legislature.
After the long digression in his first article against the impropriety of inferring opinions from the, comparatively, elaborate debates of the State Conventions, it is a little surprising to find such vast premises sustained only by scraps and fibres torn from MR. YATES'S maimed and meagre skeleton of debates. But to answer we must follow him.
No body of men ever encountered successfully greater difficulties than the Federal Convention. Nothing but a stern conviction of the necessity of doing something prevented a dissolution without effecting anything. Federalism and Nationalism, Democracy and Aristocracy, Monarchy and Republicanism, and every combination, of all, had to be reconciled in one uniform system. The fears entertained by the small states of the large ones had to be allayed, and the fears of all the ultra-state-rights-men, had to be satisfied of their safety from the strangling grasp of the federal arm. At the same time the party had to be satisfied which demanded more of their due weight for the large states than they possessed under the confederation, and the national government-men who demanded sufficient strength and perfection in the form of the federal government to enable it to act independently of state action, and even in spite of it. Our government is a happy compromise of these conflicting interests. MR. MADISON was in favor of a national government, perfect within its own sphere, leaving the state governments only to manage their local concerns, but with no power to interfere with the operations of the United States' government. LUTHER MARTIN was in favor of equality and mere federation of the states, and conducting the federal government by states, and not its independent action.
The principles of the first set of resolutions, appear to have met MR. MADISON'S views, and were probably written by him, or with him, though offered by GOVERNOR RANDOLPH, who “candidly confessed that they were not intended for a federal government,—he meant a strong consolidated union, in which the idea of states should be nearly annihilated.”
This is the system of government to which the Judge refers us, as containing the idea, in the fourth resolution, that senators ought “to hold their offices for a term sufficient to insure their independence, namely, seven years,” and that they ought to be “ineligible to state or federal office during their term of service.” This resolution was written with the avowed object of keeping the state governments from interfering in any way,—even by the allurements of office,—with an officer who was designed to be an intrinsic part of an entirely separate consolidated general government; and the rejection of that very system and the reasons assigned for it in the debates, prove, beyond doubt, that the objection to it was because it left the states, as states, and their governments and sovereignty, without representation, and of course without protection. The Judge quotes a rejected clause, to prove the adoption of its principles!
MR. MADISON was opposed to the amendment. He did not wish to leave the state legislatures this modicum of federal power, because he wished a distinct and independent government. He must have foreseen the exercise of instructions and recognized the right; or he could not have used the expressions which fell from him when the right of election was given to state legislatures. All who knew MR. MADISON, or are at all familiar with his history, and his writings on the formation of the constitution, must remember that he was haunted and hag-ridden by a terror of disunion; and federal weakness, which, to us, at the present day, would seem almost a monomania, if recent startling events had not fearfully proven that this phantom is ever armed and ready to assume a tangible shape, and realize, in practice, those terrible consequences which his second-sighted sagacity could so manifestly mark in the dim picture of the future. His fear of the state legislatures led him to favor GOVERNOR RANDOLPH'S proposition,—which was to have the senators selected by the house of representatives, out of a certain number of persons nominated by the state legislatures. This would have adroitly used the best possible body for judicious nomination, without giving it the power of appointment. Without representation, they would have been without the right of instruction, and the election being made by the house of representatives, the constitution of the senate would have had another national feature, and its members been removed as far as practicable from state influence.
When the first and fatal blow was stricken at this system by giving the election to the Legislatures, MR. MADISON'S hopes of a national government, entirely distinct and independent of state governments, were at once prostrated. Then he used the language quoted by Judge H. “We are proceeding in the same manner that was done when the confederation was first formed. Its original draft was excellent, but in its progress to completion it became so insufficient as to give rise to the present convention. By the vote already taken, will not the temper of the state legislatures transfuse itself into the senate? Do we create a free government?”
Our distinguished opponent asks what would he have said, had he known that a right of instruction would be claimed? He could have said no more—indeed he could not have used so much force without knowing it. How else can the temper transfuse itself? Is it only by an election every six years, leaving the senators independent in the interval? Would not the legislative nominations have transfused the temper quite as effectually? The legislatures would only have nominated those who concurred in sentiment with a majority of their members; and all that the house of representatives would have done would have been to elect the most moderate, if they differed, and the most violent if they agreed with the state legislature. The difference between the two modes, as to the transfusion of temper, was almost nothing without instructions, but very great with it; and as Mr. M. seemed to think the amendment almost annihilated his scheme, we must suppose he objected more to the incidental right of instruction given by the vote, than the principal right of election from which it flowed. Notwithstanding Mr. M.'s strenuous opposition, the change was made by a vote of nine states to two—thus evincing a decided determination in that body to enable the states to defend themselves, and transfuse their temper if necessary. Judge H. tortures Mr. M.'s objections to the new system into an evidence of ignorance of one of the most important consequences of that system, without a knowledge of which, his reasons would have been of little force, and his fears utterly without foundation.
The clauses which the Judge quotes in the fourth resolution, were left in their original form by the advocates of state power, in the first consideration in committee, being satisfied with their great gain in the mode of election; but they were afterwards stricken out, being a part of the scheme which had been rejected, and inconsistent with the spirit of the amended resolution. The proposal and subsequent rejection of the express terms of senatorial independence, prove that the convention disapproved of the idea; but Judge H. quotes it as evidence of “an intention to make the senators equally independent of the several states and of the United States.”
The objections of LUTHER MARTIN to the possibility of senators doing their own will instead of that of their states, modern times have proven to be too well founded, but his opinions upon that subject being analogous to those of PATRICK HENRY, I refer to my last number for the answer. He does not yield the right, but complains of the power of senators to disobey, without being punished. He does not say, as the Judge supposes, “that senators are not, precisely what the advocates of instructions say they are,” but that they may do, precisely what we say they ought not. He is directly opposed to MR. MADISON, and fears the senators may stop that transfusion of temper, which the latter thought they could not legitimately stop. MR. MARTIN would not have objected to this system, if senators had been elected for shorter terms, and paid by the states, and subject to recall, because then he would have thought them sufficiently dependent on their states. But none of these would have given the state any control over them except by instructions.