[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.