CHAPTER XII.

Report of the Committee of Detail, continued.—Supremacy of the National Government.—Definition and Punishment of Treason.

CHAPTER XIII.

Report of the Committee of Detail, continued.—Election and Powers of the President.

CHAPTER XIV.

Report of the Committee of Detail, continued.— Formation of the Judicial Power.

CHAPTER XV.

Report of the Committee of Detail, continued.—Effect of Records.—Inter-State Privileges.—Fugitives from Justice and from Service.

CHAPTER XVI.

Report of the Committee of Detail, continued.—Guaranty of Republican Government and Internal Tranquillity.—Oath to support the Constitution.—Mode of Amendment.—Ratification and Establishment of the Constitution.—Signing by the Members of the Convention.

BOOK V.

ADOPTION OF THE CONSTITUTION.

CHAPTER I.

General Reception of the Constitution.—Hopes of a Reunion with Great Britain.—Action of the Congress.—State of Feeling in Massachusetts, New York, Virginia, South Carolina, Maryland, and New Hampshire.—Appointment of their Conventions.

CHAPTER II.

Ratifications of Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut, without Objection.—Close of the Year 1787.—Beginning of the Year 1788.—Ratification of Massachusetts, the Sixth State, with Propositions of Amendment.—Ratification of Maryland without Objection.—South Carolina, the Eighth State, adopts, and proposes Amendments.

CHAPTER III.

Ratifications of New Hampshire, Virginia, and New York, with Proposed Amendments.

CHAPTER IV.

Action of North Carolina and Rhode Island.— Conclusion.

APPENDIX.

BOOK IV.

FORMATION OF THE CONSTITUTION.

CHAPTER I.

Preliminary Considerations.—Organization of the Convention.—Position of the States.—Rule of Investigation.

After long wanderings through the struggles, the errors, and the disappointments of the earlier years of our constitutional history, I now come to consider that memorable assembly to which they ultimately led, in order to describe the character of an era that offered the promise of a more vigorous nationality, and presented the alternative of final dissolution. How the people of the United States were enabled to seize the happy choice of one of these results, and to escape the disasters of the other, is to be learned by examining the mode in which the Constitution of the United States was framed.

In approaching this interesting topic, I am naturally anxious to place myself at once on a right understanding with the reader,—to apprise him of the purpose of the discussions to which he is invited, and to guard against expectations which might be entertained, but which will not be fulfilled.

In a work designed for general and—as I venture to hope it may prove—for popular use, it would be out of place, as it certainly would be impracticable within the limits of a single volume, to undertake the explanation and discussion of all those particular questions of construction that must constantly arise under almost every clause and feature of such an instrument as the Constitution of the United States, and which, as our whole experience has taught us, are fruitful both of extensive debate and of wide as well as honest diversities of opinion. I shall consider questions of construction only so far as may be necessary to elucidate my subject; for I propose, in writing the history of the formation of the Constitution, to describe rather those great modifications in the principles and structure of the Union that took place in the period at which we have now arrived in the course of this work; to state the essential features of the new government; and to trace the process by which they were evolved from the elements to which the framers of that government resorted.

Happily for us, the materials for such a description are ample. The whole civil change which transformed the character of our Union, and established for it a national government, took place peacefully and quietly, within a single twelvemonth. It was attended with circumstances which enable us to ascertain its character with a high degree of certainty. The leading purposes that were entertained and carried out were not left to the conjecture of posterity, but were recorded by deliberative assemblies, whose acts of themselves expressed and ascertained the objects and intentions of the national will. First framed by an assembly in which the States participating in the change were fully represented, and subsequently debated and ratified in conventions of the people in the separate States, the general nature and design of the Constitution may be traced and understood without serious difficulty.

But to the right understanding of its nature and objects, a careful examination of the proceedings of the national Convention is, in the first place, essential. Before we enter, however, upon this examination, there are certain preliminary facts that explain the circumstances in which the Convention was assembled, and which will enable us to appreciate the results at which it arrived. To these, therefore, the reader is now desired to turn.

First of all, then, it is to be remembered that the national Convention of 1787 was assembled with the great object of framing a system of government for the united interests of the thirteen States, by which the forms and spirit of republican liberty could be preserved. The warnings and teachings of the ten preceding years, which I have attempted to describe in a previous volume, had presented to the people of these States the serious question, whether their system of conducting their common affairs then rested upon principles that could secure their permanent prosperity and happiness. That the States had national interests; that each of them stood in relations to the others, and to the rest of the world, which its separate and unaided power was unable to manage with success; and that even its own internal peace and prosperity required some external protection,—had been brought home to the convictions of the people by an experience that commenced with the day on which they declared themselves independent, and had now forced upon them its last stern and sorrowful lesson in the general despondency of the national heart. As they turned anxiously and fearfully to the near and dear interests involved in their separate and internal concerns, they saw that self-government was a necessity of their existence. They saw that equality before the law for the whole people; the right and the power to appoint their own rulers; the right and the power to mould and form and modify every law and institution at their own sovereign will,—to lay restraints upon their own power, or not to lay them,—to limit themselves by public compact to a particular mode of action, or to remain free to choose other modes,—were the essential conditions of American society. In a word, they beheld that republican and constitutional liberty, which, with all that it comprehends and all that it bestows, was not only altogether lovely in their eyes, but without which there could be no peace, no social order, no tranquillity, and no safety for them and their posterity.

This liberty they knew must be preserved. They loved it with passionate devotion. They had been trained for it by the whole course of their political and social history. They had fought for it through a long and exhausting war. Their habits of thought and action, their cherished principles, their hopes, their life as a people, were all bound up in it; and they knew that, if they suffered it to be lost, there would remain for them nothing but a heritage of shame, and ages of confusion, strife, and sorrow.

Great as was their devotion to this republican liberty, and ardent as was their love of it, they did not value it too highly. The doctrine that all power resides originally in the people; that they are the source of all law; that their will is to be pronounced by a majority of their numbers, and can know no interruption,—was not first discovered in America. But to this principle of a democracy the people of the American States had added two real and important discoveries of their own. They had ascertained that their own power might be limited by compacts which would regulate and define the modes in which it shall be exercised. Their written constitutions had taken the place of the royal charters which formerly embraced the fundamental conditions of their political existence, but with this essential difference,—that whereas the charter emanated from a foreign sovereign to those who claimed no original authority for themselves, the constitution proceeded from the people, who claimed all authority to be resident in themselves alone. While the charter embraced a compact between the foreign sovereign and his subjects who lived under it, the constitution, framed by the people for their own guidance in exercising their sovereign power, became a compact between themselves and every one of their number. In this substitution of one supreme authority for another, some limitation of the mode in which the sovereign power was to act became the necessary consequence of the change; for as soon as the people had declared and established their own sovereignty, some declaration of the nature of that sovereignty, and some prescribed rules for its exercise, became immediately necessary, and that declaration and those rules became at once a limitation of power, extending to every citizen the protection of every principle involved in them, until the same authority which had established should change them.

Against the evils, too, that might arise from the unrestricted control of a majority of the people over the fundamental law,—against the abuse of their power by frequent and passionate changes of the rules which limit its exercise for the time being,—they had discovered the possibility of limiting the mode in which the organic law itself was to be changed. By prescribing certain forms in which the change was to be made, and especially by requiring the fact, that a change had been decreed by those having a right to make it, to be clearly and carefully ascertained by a particular evidence, they guarded the fundamental law itself against usurpation and fraud, and greatly diminished the influences of haste, prejudice, and passion.

Such was the nature of American republican liberty; not then fully understood, not then fully developed in all the States, but yet discovered,—a liberty more difficult of attainment, more elaborate in its structure, and therefore more needful of defence, than any of the other forms of constitutional freedom under which civilized man had hitherto been found.

Now, the fate of republican liberty in America, at that day, depended directly upon the preservation of some union of the States, and not simply upon the existing State institutions, or upon the desires of the people of each separate State. It is true, that their previous training and history, and their own intelligent choice, had made the States, in all their forms and principles, republican governments; and almost all of them had, at this period, written constitutions, in which the American ideal of such governments was aimed at, and more or less nearly reached. But how long were these constitutions, these republican forms, to exist? What was to secure them? Who was to stand as their guarantor and protector, and to vindicate the right of the majority to govern and alter and modify? Who was to enforce the rules which the people of a State had prescribed for their own action, when threatened by an insurgent and powerful minority? Who was to protect them against foreign invasion or domestic violence? There was no common sovereign, or supreme arbiter, to whom they could all alike appeal. There was no power upon this broad continent to whom the States could intrust the duty of preserving their institutions inviolate, except the people of the United States in some united and sovereign capacity. No single State, however great its territory or its population, could have discharged these duties for itself by its unaided power; for no one of them could have repelled a foreign invasion alone, and the government of one of the most respectable and oldest of them, whose people had exhibited as much energy as any other community in America, had almost succumbed to the first internal disorder which it had been forced to encounter.

The preservation of the Union of the States was, therefore, essential to the continuance of their independence, and to the continuance of republican constitutional liberty,—of that liberty which resides in law duly ascertained to be the authentic will of a majority. With this vastly important object before them, the people of the States of course could give to the Union no form that would not reflect the same spirit, and harmonize with the nature of their existing institutions. To have left their State governments resting upon the broad basis of popular freedom acting through republican forms, and to have framed, or to have attempted to frame, national institutions on any other model, would have been an act of political suicide. To enable the Union to preserve and uphold the authority of the people within the respective States, it must itself be founded on the same authority, must embody the same principles, spring from the same source, and act through similar institutions.

Accordingly, the student of this portion of our history will find everywhere the clearest evidence that, so far as the purpose of forming a national government of a new character was entertained at the period when the Convention was assembled, a republican form for that government was a foregone conclusion. Not only did no State entertain any purpose but this, but no member of the Convention entered that body with any expectation of a different result. There is but one of the statesmen composing that assembly to whom a purpose of creating what has been called a monarchical government has ever been distinctly imputed; and with regard to him, as much as to every other person in the Convention, I shall show that the imputation is unjust. Hamilton,—for it is to him of course that I now allude,—together with many others, believed that a failure, at that crisis, to establish a government of sufficient energy to pervade the whole Union with the necessary control, would bring on at once a state of things that must end in military despotism. Hence his efforts to give to the republican form, which he acknowledged to be the only one suited to the circumstances and condition of the country, the highest degree of vigor, stability, and power that could be attained.

Another very important fact, which the reader is to carry along with him into the examination of the proceedings of the Convention, is, that by the judgment of the old Congress, and of every State in the Union save one,[1] the Confederation had been declared defective and inadequate to the exigencies of government, and the preservation of the Union. That this declaration was expressly intended to embrace the principle of the Union, or looked to the substitution of a system of representative government, to which the people of the States should be the immediate parties, in the place of their State governments, does not appear from the proceedings which authorized and constituted the Convention. In substance, those proceedings ascertained that there were great defects in the existing Confederation; that there were important purposes of the federal Union which it had failed to secure; and that a Convention of all the States, for the purpose of revising and amending the Articles of Confederation, was the most probable means of establishing a firm general government, and was therefore to be held. But what were the original purposes of the Union, or what purposes had come to be regarded as essential to the public welfare, was not indicated in most of the acts constituting the Convention. Virginia, whose declaration preceded that of Congress and of the other States, and on whose recommendation they all acted, had made the commercial interests of the United States the leading object of the proposed assembly; but she had also declared the necessity of extending the revision of the federal system to all its defects, and had advised further concessions and provisions, in order to secure the great objects for which that system was originally instituted. These general and somewhat indefinite purposes were declared by the other States, without any material variation from the terms employed by Virginia.[2]

Hence it is that the previous history of the Union becomes important to be examined before we can appreciate the great general purposes of its original formation, as they were understood at the time of these proceedings, or can appreciate the further purposes that were intended to be engrafted upon it. The declarations made by the Congress and the States seem obviously to embrace two classes of objects; the one is what, in the language of Virginia, they conceived to have been "the great objects for which the federal government was instituted"; the other is the "exigencies of the Union," for peace as well as for war, as they had been displayed and developed by the defects of the Confederation, and by its failures to secure the general welfare. The first of these classes of objects could be ascertained by reference to the terms and provisions of the Articles of Confederation; the second could only be ascertained by resorting to the history of the confederacy, and by regarding its recorded failures to promote the general prosperity as proofs of what the exigencies of the Union demanded in a general government.[3]

In the first volume of this work we have examined the nature and operation of the previous Union, in both of its aspects, and we must carry the results of that examination along with us in studying the formation of the new system. We have seen the character of the Union which was formed by the assembling of the Revolutionary Congress, to enable the States to secure their independence of the crown of Great Britain. We have seen that, from the jealousies of the States, even this Congress never assumed the whole revolutionary authority which its situation and office would have entitled it to exercise. We have seen also, that, from the want of a properly defined system, and from the absence of all proper machinery of government, it was unable to keep an adequate army in the field, until, in a moment of extreme emergency, it conferred upon the Commander-in-chief the powers of a dictator. We have witnessed the establishment of the Confederation,—a government which bore within itself the seeds of its own destruction; for it relied entirely, for all the sinews of war, upon requisitions on the States, with which the States perpetually refused or neglected to comply. We have thus seen the war lingering and languishing until foreign aid could be procured, and until loans of foreign money supplied the means of keeping it alive long enough for the admirable courage, perseverance, and energy of Washington to bring it to a close, against all obstacles and all defects of the civil power. When the war was at length ended, and the duty of paying the debts thus incurred to the meritorious and generous foreign creditor, and the more than meritorious and generous domestic creditor, pressed upon the conscience of the country, we have seen that there was no power in the Union to command the means of paying even the interest on its obligations. We have seen that the treaty of peace could not be executed; that the Confederation could do nothing to secure the republican governments of the States; that the commerce of the country could not be protected against the policy of foreign governments, constantly watching for advantages which the clashing interests of the different States at all times held out to them; and that, with the rule which required the assent of nine States to every important measure, it was possible for the Congress to refuse or neglect to do what it was of the last importance to the people of the United States they should do. Finally, we have seen that what now kept the existing Union from dissolution, as it had been one immediate inducement to its formation, was the cession of the vast Northwestern territory to the United States; and that over this territory new States were forming, to take their places in the band of American republics, while the Confederation possessed no sufficient power to legislate for their condition, or to secure their progress toward the great ends of civil liberty and prosperity.

A retrospection, therefore, of the previous history of the Confederacy, while it reveals to us the public appreciation of the national wants and the national failures, displays the general purposes contemplated by the States when they undertook effectually to provide for "the exigencies of the Union." But what the nature of the proposed changes was to be, and in what mode they were to be reached, was, as we have seen, left undetermined by the constituent States when they assembled the Convention; and we are now, therefore, brought to the third preliminary fact, necessary to be regarded in our future inquiries, namely, the condition of the actual powers of that assembly.

The Confederation has already been described as a league, or federal alliance between independent and sovereign States, for certain purposes of mutual aid. So far as it could properly be called a government, it was a government for the States in their corporate capacities, with no power to reach individuals; so that, if its requirements were disregarded, compulsion could only be directed—if against anybody—against the delinquent member of the association, the State itself.

At the time when the Convention was assembled, the general purpose entertained throughout the Union appears to have been, by a revision and amendment of the Articles of Confederation, to give to the Congress power over certain subjects, of which that instrument did not admit of its taking cognizance, and to add such provisions as would render its power efficient. But it was not at all understood by the country at large, that, while the nominal powers of the Confederation might be increased at the pleasure of the States, those powers could not be made effectual without a change in the principle of the government. Hence, the idea of abolishing the Confederation, and of erecting in its place a government of a totally different character, was not entertained by the States, or, if entertained at all, was not expressed in the public acts of the States by which the Convention was called. This idea, however, was perhaps not necessarily excluded by the terms employed by the States in the instruction of their delegates: and we may therefore expect to find the members of that assembly, in construing or defining the powers conferred upon it, taking a broader or narrower view of those powers, according to the character of their own minds, the nature of their previous public experience, and the real or supposed interests of their particular States.

Many of the persons who had been clothed with this somewhat vague and indeterminate authority to "revise" the existing federal system, and to agree upon and propose such amendments and further provisions as might effectually provide for the "exigencies of the Union," were statesmen who had passed the active period of their previous lives in vain endeavors to secure efficient action for the powers possessed by the Congress, both under the revolutionary government and under the Confederation. They were selected by their States on account of this very experience, and in order that their counsels might be made available to the country.[4] They saw that the mere grant of further powers, or the mere consent that the Congress should have jurisdiction over certain new subjects, would be of no avail while the government continued to rest upon the vicious principle of a naked federal league, leaving the question constantly to recur, whether the compact was not virtually dissolved by the refusal of individual States to discharge their federal obligations. These persons, consequently, came to the Convention feeling strongly the necessity for a radical change in the principles and structure of the national Union; but feeling also great embarrassment as to the mode in which that change was to be effected.

On the other hand, there were other members of the Convention who came with a disposition to adhere to the more literal meaning of their instructions, and who did not concur in the alleged necessity for a radical change of the principle of the government. Fearing that the power and consequence of their own States would be diminished by the introduction of numbers as a basis of representation, they adhered to the system of representation by States, and insisted that nothing was needed to cure the evils that pressed upon the country, but to enlarge the jurisdiction of the Congress under that system. They were naturally, therefore, the first to suggest and the last to surrender the objection, that the Convention had received no authority, either from the States or from the Congress, to do anything more than revise the Articles of Confederation, and recommend such further powers as might be engrafted upon the present system of the Union.

That the construction of their powers by the latter class of the members of the Convention comported with the mere terms of the acts of the States, and with the general expectation, I have more than once intimated; but we shall see, as the experiment of framing the new system proceeded, that the views of the other class were equally correct; that the addition of further powers to the existing system of the Union would have left it as weak and inefficient as it had been before; and that what were universally regarded as the "exigencies of the Union"—which was but another name for the wants of the States—could only be provided for by the creation of a different basis for the government.

Another fact which we are to remember is the presence, in five of the States represented in the Convention, of large numbers of a distinct race, held in the condition of slaves. Whatever mode of constituting a national system might be adopted, if it was to be a representative government, the existence of these persons must be recognized and provided for in some way. Whatever ratio of representation might be established,—whether the States were to be represented according to the numbers of their inhabitants, or according to their wealth,—this part of the population of the slave-holding States presented one of the great difficulties to be encountered. A change of their condition was not now, and never had been, one of the powers which those States proposed to confide to the Union. In no previous form of the confederacy had any State proposed to surrender its own control over the condition of persons within its limits, or its power to determine what persons should share in the political rights of that community; and no State that now took part in the new effort to amend the present system of the Union proposed to surrender this control over its own inhabitants, or sought to acquire any control over the condition of persons within any of the other States.

The deliberations of the Convention were therefore begun with the necessary concession of the fact, that slavery existed in some of the States, and that the existence and continuance of that condition of large masses of its population was a matter exclusively belonging to the authority of each State in which they were found. Not only was this concession implied in the terms upon which the States had met for the revision of the national system, but the further concession of the right to have the slave populations included in the ratio of representation became equally unavoidable. They must be regarded either as persons or as chattels. If they were persons, and the basis of the new government was to be a representation of the inhabitants of the States according to their numbers,—the only mode of representation consistent with republican government,—their precise condition, their possession or want of political rights, could not affect the propriety of including them in some form in the census, unless the basis of the government should be composed exclusively of those inhabitants of the States who were acknowledged by the laws of the States as free. The large numbers of the slaves in some of the States would have made a government so constructed entirely unequal in its operation, and would have placed those States, if they had been willing to enter it,—as they never could have been,—in a position of inferiority which their wealth and importance would have rendered unjustifiable. On the other hand, if the wealth of the States was to be the measure of their representation in the new government, the slaves must be included in that wealth, or they must be treated simply as persons. The slaves might or might not be persons, in the view of the law, where they were found; but they were certainly in one sense property under that law, and as such they were a very important part of the wealth of the State. The Confederation had already been obliged to regard them, in considering a rule by which the States should contribute to the national expenses. They had found it to be just, that a State should be required to include its slaves among its population, in a certain ratio, when it was called upon to sustain the national burdens in proportion to its numbers; and they had recommended the adoption of this fundamental rule as an amendment of the federal Articles.[5] Either in one capacity, therefore, or in the other, or in both,—either as persons or as property, or as both,—the Union had already found it to be necessary to consider the slaves. In framing the new Union, it was equally necessary, as soon as the equality of representation by States should give place to a proportional and unequal representation, to regard these inhabitants in one or the other capacity, or in both capacities, or to leave the States in which they were found, and to which their position was a matter of grave importance, out of the Union.