[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.