“Johnson was the representative in his generation of the family in the State most distinguished for public services and personal attainments. He had ably represented our interests abroad, in important matters, and twenty years before had received the degree of Doctor of Civil Law from Oxford University. The Convention made him head of the committee to put the measures which it adopted in proper form and style. Oliver Ellsworth, who had been the foremost lawyer at our bar, was then an associate of Sherman on the bench of the Supreme Court, and was soon to be Chief Justice of the United States. But Sherman had a truer sense than either of his colleagues of what must be the nature and soul of the new government. He felt that it must stand upon a double foundation, that of the States, acting each for itself, and that of the people of all the States, acting for all together.[24]
“He felt, too, that it must stand for human liberty.
“Our State was then a slave-holding State, but he was one of those who were determined that the word slave should not stain the pages of the Constitution of the United States. Later, when he was a member of the first Congress, one of the representatives from Virginia (for Virginia statesmen were then looking to the gradual abolition of slavery) proposed to put into the tariff not a duty of ten dollars on each slave imported. Sherman opposed it. He could not, he said, reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise; and, when it was replied that the doctrine of the Declaration of Independence required the endeavor to wipe off the stigma of slavery from the American government, his reply was that the principles of the motion and the principles of the bill were inconsistent: the principle of the bill was to raise revenue, and the principle of the motion was to correct a moral evil. These few and well put words illustrate that strong sense of proportion and relation which gave Sherman such weight in every deliberative assembly.
“In the Convention which framed the Constitution, he was the author of the compromise by which, in Congress, the Senate represents the States and the House, the people.
“Afterwards, when Congress was engaged in formulating the first ten amendments of the Constitution, which serve as a bill of rights for the people and for the States, it was he who gave the final shape to the last and most important.
“This (originally the Twelfth, for Congress proposed twelve of which ten only were ratified by the States), as reported by the committee, read thus: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.’ Sherman moved, and the House voted to add the words, ‘or to the people.’
“He knew, as a lawyer, that when anything is reserved in a grant it is reserved by and for the maker of the grant. Who made this grant? From what authority did the Constitution proceed? Was it from the States, and were the powers reserved to be reserved to them and each of them? This was said, or implied, in the original draft of the amendment. Sherman’s addition recognized the principle, afterwards affirmed by Chief Justice Marshall, that the people also had a share in ordaining this Constitution for themselves and their posterity.
“It is also worthy of remark, that he was careful to follow the phrase used in the preceding amendment (the Ninth) in which it is declared that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. What people is thus meant? Is it the people of each State, regarded state-wise, or the whole people of the United States regarded nation-wise? That was a question on which public opinion had been divided, and which it remained for the Civil War to settle by force of arms.
“Sherman did not seek to precipitate this issue. The framers of the Constitution of the Southern Confederacy met the same question and decided it. By the article of that document (the Sixth) which corresponds to the Tenth Amendment to the Constitution of the United States, the powers not delegated to the Confederate States were ‘reserved to the States respectively, or to the people thereof.’[25] Here is the doctrine of States Rights, clear and unmistakable. It is not improbable that Sherman would have preferred the use of similar language by the First Congress, in drafting the Tenth Amendment. The interest of his State lay or seemed to lie in that direction. But he had been willing, as a political necessity, to build the Constitution on pillars of compromise, and this was one of them. He was content to use words of comprehension, which the adherents of each school of American politics could read in their own sense, and to leave it to another generation to determine which should prevail.
“Another service of importance rendered by Sherman in the First Congress was to bring the cent into actual use in the financial system of the United States.