[325] August 24. Elliot, V. 472, 473.

[326] The Constitution was published in the Pennsylvania Journal, Sept. 19th. On the 27th, another Philadelphia paper suggested, or, as we should now say, "nominated" General Washington for the Presidency.

[327] Delaware. Elliot, V. 519.

[328] I allude, of course, to the case of King George III., which had not happened when our Constitution was framed. To ascertain the sanity of a private person is certainly often no less delicate and difficult, than to inquire into the sanity of a person in a high public position. But there is a legal process for determining the capacity of every person to discharge private duties or to exercise private rights. In the case of the President of the United States, there is no mode provided by the Constitution for ascertaining his inability to discharge his public functions, and no authority seems to have been given to Congress to provide for such an inquiry. Perhaps the authority could not have been given, with safety and propriety.

[329] This clause was inserted, by unanimous consent, on the motion of Mr. King and Mr. Gerry, September 6. Elliot, V. 515.

[330] See post, p. 621.

[331] Congress, however, have not only provided that the President pro tempore of the Senate and the Speaker of the House of Representatives shall successively act as President, in case of the removal, death, resignation, or inability both of the President and Vice-President, until the disability be removed or a President shall be elected, but also that, whenever the offices of President and Vice-President shall both become vacant, a new appointment of electors shall be ordered, and a new election made. The constitutional authority for this latter provision is at least doubtful. (Act of March 1, 1792.) I have discovered no evidence that the framers of the Constitution contemplated an intermediate election of President and Vice-President, excepting an amendment moved by Mr. Madison. The clause which enables Congress to declare what officer shall act as President, on the death, &c. of both the President and Vice-President, was introduced by Governor Randolph, and terminated thus: "And such officer shall act accordingly, until the time of electing a President shall arrive." Mr. Madison moved to substitute for this the words, "until such disability be removed, or a President shall be elected"; and he has recorded in his Minutes, that he remarked, on moving this amendment, that the phraseology of Governor Randolph "would prevent a supply of the vacancy by an intermediate election." This amendment was adopted. (Elliot, V. 520, 521.) But the difficulty in the way of construing the clause so as to give effect to this suggestion is, that the terms employed by Mr. Madison do not of themselves necessarily import an authority to Congress to order an intermediate election, any more than those used by Governor Randolph. Either of these expressions, when incorporated into the Constitution, would have to be construed with reference to the whole system prescribed by the Constitution for filling the executive branch of the government. Taking all the provisions together, it appears that the executive power is to be vested in a President, who is to hold his office for a term of four years; that Congress shall fix the day on which he is to be chosen by the electors; that, when so chosen, he is to hold the executive power for four years; that if he dies, or is disabled, within that term, and there is no Vice-President to succeed him, Congress shall declare by law what officer shall then act as President, that is, shall hold and exercise the executive power, and such officer is to act accordingly, until the disability be removed, or a President shall be elected. It would seem, therefore, that when the officer designated by Congress is required to act as President, the powers and duties of the office are devolved upon him for the residue of the term of four years, in a case of vacancy by death, removal, or resignation; for the terms "until a President shall be elected" certainly do not import any express authority to order a new election; and although there is a general authority in Congress to fix the day for the election of a President, it must be a President chosen for the term of four years.

[332] Elliot, V. 462, 507, 521, 522.

[333] He anticipated that it would be so regarded. Hamilton, who was in all his views, as unlike Franklin as any man could be, seconded the motion, out of respect for the mover.

[334] Elliot, V. 380.

[335] Connecticut, New Jersey, Delaware, and North Carolina voted against it.

[336] Elliot, V. 446, 462.

[337] Mason, Franklin, Wilson, Dickinson, and Madison.

[338] Elliot, V. 525.

[339] Those who are not familiar with the precise structure of the American government will probably be surprised to learn that what is in practice sometimes called the "Cabinet" has no constitutional existence as a directory body, or one that can decide anything. The theory of our government is, that what belongs to the executive power is to be exercised by the uncontrolled will of the President. Acting upon the clause of the Constitution which empowers the President to call for the opinions in writing of the heads of departments, Washington, the first President, commenced the practice of taking their opinions in separate consultation; and he also, upon important occasions, assembled them for oral discussion, in the form of a council. After having heard the reasons and opinions of each, he decided the course to be pursued. The second President, Mr. John Adams, followed substantially the same practice. The third President, Mr. Jefferson, adopted a somewhat different practice. When a question occurred of sufficient magnitude to require the opinions of all the heads of departments, he called them together, had the subject discussed, and a vote taken, in which he counted himself but as one. But he always seems to have considered that he had the power to decide against the opinion of his cabinet. That he never, or rarely, exercised it, was owing partly to the unanimity in sentiment that prevailed in his cabinet, and to his desire to preserve that unanimity, and partly to his disinclination to the exercise of personal power. When there were differences of opinion, he aimed to produce a unanimous result by discussion, and almost always succeeded. But he admits that this practice made the executive, in fact, a directory. Jefferson's Works, V. 94, 568, 569.

[340] Elliot, V. 141, 142.

[341] Elliot, V. 343, 344.

[342] The Constitution having vested in Congress power to provide for calling the militia into the service of the United States, to execute the laws, suppress insurrections, and repel invasions, the President cannot call out the militia unless authorized to do so by Congress. But with respect to the employment of the army and navy for any executive purpose, it may be doubted whether any authority from Congress is necessary; as it may also be doubted whether Congress can exercise any control over the President in the use of the land or naval forces, either in the execution of the laws, or in the discharge of any other executive duty.

[343] Elliot, V. 480.

[344] Ibid. 549.

[345] It was to be one of the distinct functions of the President "to receive ambassadors and other public ministers."

[346] Mr. Madison so thought. Elliot, V. 524.

[347] Ibid.

[348] The several votes taken upon different aspects of the rule for the ratification of treaties make the theory quite clearly what is stated in the text. See the proceedings, September 7, 8. Elliot, V. 524, 526.

[349] This power embraces of course only those offices the appointment to which is vested in the President and Senate.

[350] The Constitution (Art. II. § 2) seems to contemplate ambassadors, other public ministers and consuls, and judges of the Supreme Court, as officers to exist under the Constitution, whether provision is or is not made by law for their appointment and functions. It is made the imperative duty of the President to nominate, and with the consent of the Senate to appoint them. Hence it has been supposed that the President can appoint a foreign minister without waiting to have his particular office regulated or established by law; and as the President conducts the foreign intercourse of the country, he could prescribe the duties of such a minister. In like manner, with the consent of the Senate, the President could appoint a judge of the Supreme Court, and would be bound to do so, although no act of Congress existed providing for the organization and duties of the Court. But as the President cannot distribute the judicial power, the Court, when so appointed, would have only the functions conferred by the Constitution, namely, original jurisdiction in certain enumerated cases.

[351] In the text of the Constitution, the President's power to adjourn the two houses of Congress in case of a disagreement follows immediately after his power to convene them on "extraordinary occasions"; and it has, therefore, been suggested that his power to adjourn them is confined to cases where they have been "extraordinarily" convened under the first power. But it is to be observed that the whole of the third section of Article II. contains an enumeration of separate powers of the President, recited seriatim. The power to convene Congress is one power; and it extends only to "extraordinary" occasions, because the Constitution itself, or a law, convenes them at a fixed period, and thus makes the ordinary occasions. But the power to adjourn the two houses to a particular time, in cases of disagreement as to the time, is a separate and general power, because the reason for which it was given at all applies equally to all sessions. That reason is, that there may be a peaceful termination of what would otherwise be an endless and dangerous controversy. Both Hamilton in the Federalist and Judge Story in his Commentaries have treated this as a separate and general power. (The Federalist, No. 77. Story on the Constitution, § 1563.)

[352] Elliot, V. 550.

[353] Elliot, V. 483.

[354] No. 81.

[355] See the seventh Amendment.

[356] By "cases arising under the Constitution," &c. the framers of that instrument did not mean all cases in which any department of the government might have occasion to act under provisions of the Constitution, but all cases of a judicial nature; that is, cases which, having assumed the form of judicial proceedings between party and party, involve the construction or operation of the Constitution of the United States. Elliot, V. 483.

[357] Elliot, V. 484. Constitution, Art. III. § 2, clause 3.

[358] Elliot, V. 429.

[359] See and compare Art. IV. of the Confederation and Art. IV. § 2 of the Constitution.

[360] So far as the proceedings in the Convention are to be regarded as a guide to construction, it appears clearly that the clause which empowers Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof," was intended to give a power to declare the effect of the acts, records, and judicial proceedings of any State, when offered in evidence in another State, as well as to prescribe the mode of proving them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion on this clause in Story's Commentaries, §§ 1302-1313.

[361] Elliot, V. 487.

[362] July 23d. Elliot, V. 357.

[363] Art. XIV. of the report of the committee of detail.

[364] These are the words of Mr. Madison's Minutes. Elliot, V. 487. This was on the 26th of August.

[365] Madison, ut supra. The motion was made by Butler and Pinckney, according to Mr. Madison.

[366] By Wilson.

[367] By Sherman.

[368] Madison, ut supra. August 28.

[369] The reader who will consult a paper in the fourth volume of the Collections of the Massachusetts Historical Society (p. 194), written by Dr. Belknap, in 1795, will find that slavery, in the sense in which the term is now commonly understood, existed in Massachusetts Bay as early as 1630. The proof of it consists,—1. In the provisions of the colonial laws and ordinances, which recognize and regulate a relation very different from that of service for hire. On this subject, the early colonists of Massachusetts held and practised the law of Moses. They regarded it as lawful to buy and sell "slaves taken in lawful war," or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law. But they punished man-stealing capitally, re-enacting expressly the 16th verse of the 21st chapter of Exodus; and when there were any negroes in their jurisdiction who had been stolen, or "fraudulently" acquired in Africa, they endeavored to send them back again. 2. In the actual presence of negro slaves, brought from Africa, who had been "lawfully" acquired, that is, by fair purchase from those who held them as prisoners of war. These existed to some extent in the Colony in 1638, and were numerous in 1673; and of course were included in all the legislation of that period respecting service, being sometimes described as "slaves," and sometimes by the more general and comprehensive term of "servants."—Slavery by judicial sentence was inflicted for no higher crimes than theft and burglary. Thus at a Quarter Court holden at Boston the 4th day of the 10th month, 1638, "John Hazlewood being found guilty of severall thefts and breaking into severall houses, was censured to be severely whipped and delivered up a slave to whom the Court shall appoint." (Shurtleff's Edition of Records of Massachusetts, I. 246.) Many of the Indians taken prisoners in King Philip's war, who had formerly submitted to the Colonial government and had been called "Praying Indians" from their supposed conversion to Christianity, were adjudged guilty of "rebellion," and were sold into slavery in foreign countries. Dr. Belknap says that some of them found their way back again, and took a severe revenge on the English in a subsequent war. (Hist. Soc. Coll. ut supra.)

[370] Mr. Madison stated in the Convention of Virginia in which the Constitution was ratified, that "this clause was expressly inserted, to enable owners of slaves to reclaim them." (Elliot's Debates, III. 453.)

[371] August 29. Elliot, V. 492.

[372] I am not aware of any more positive evidence than that above given in the text, that this clause of the Constitution was expressly made in the Convention a condition of assent by any of the States.

[373] In 1790, the slaves numbered 697,897, and the whites 3,172,464. In 1850, the slaves had increased to 3,204,313, and the whites to 19,533,068.

[374] Elliot, V. 332, 333.

[375] First draft of the Constitution, Art. XVIII. Elliot, V. 381.

[376] Constitution, Art. IV. § 4.

[377] Elliot, V. 157.

[378] Elliot, V. 376.

[379] Elliot, V. 530-532.

[380] Constitution, Art. I § 9.

[381] Ibid. Art. I. § 3.

[382] Elliot, V. 532.

[383] Ibid. 551, 552. Constitution, Art. I § 3.

[384] Constitution, Art. VI.

[385] Elliot, V. 499.

[386] Maryland.

[387] Works of Daniel Webster, VI. 227.

[388] The vote, however, was only six States to four. Elliot, V. 500.

[389] Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing.

[390] 1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Constitution.

[391] September 17.

[392] This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success.

[393] Mr. Madison has given the principal grounds of objection which these gentlemen felt to the Constitution. It is not necessary to repeat them here, as they were nearly all met by the subsequent amendments, so far as they were special, and did not relate to the general tendency of the system. (See Madison, Elliot, V. 552-558.)

[394] My authority for this anecdote is the Pennsylvania Journal of November 14, 1787, where it was stated by a writer who dates his communication from Elizabethtown, November 7.

[395] It may be amusing to Americans of this and future generations to know who this personage was for whom it was rumored that the Loyalists desired to "send," and whose advent as a possible ruler of this country was a vague apprehension in the popular mind for a good while, and finally came to be imputed as a project to the framers of the Constitution. The Bishop of Osnaburg was no other than the late Duke of York, Frederick, the second son of King George III.; a prince whose conduct as commander-in-chief of the army, in consequence of the sale of commissions by his mistress, one Mrs. Clarke, became in 1809 a subject of inquiry, leading to the most scandalous revelations, before the House of Commons. The Duke was born in 1763, and was consequently, at the period spoken of in the text, at the ripe age of twenty-four. When about a year old (1764), he was chosen Bishop of Osnaburg. This was a German province (Osnabrück), formerly a bishopric of great antiquity, founded by Charlemagne. At the Reformation most of the inhabitants became Lutherans, and by the Treaty of Westphalia it was agreed that it should be governed alternately by a Roman Catholic and a Protestant Bishop. In 1802 it was secularized, and assigned as an hereditary principality to George III., in his capacity of King of Hanover. Prince Frederick continued to be called by the title of Bishop of Osnaburg, until he was created Duke of York. I am not aware that the whispers of his name in the secret counsels of our Loyalists, as a proposed king for America, became known in England. Whether such knowledge would have excited a smile, or have awakened serious hopes, is a question on which the reader can speculate. But it is certain that there were persons in this country, and in the neighboring British Provinces, who had long hoped for a reunion of the American States with the parent country, through this or some other "mad project." Colonel Humphreys, (who had been one of Washington's aides,) writing to Hamilton, from New Haven, under date of September 16, 1787, says: "The quondam Tories have undoubtedly conceived hopes of a future union with Great Britain, from the inefficacy of our government, and the tumults which prevailed during the last winter. I saw a letter, written at that period, by a clergyman of considerable reputation in Nova Scotia, to a person of eminence in this State, stating the impossibility of our being happy under our present constitution, and proposing (now we could think and argue calmly on all the consequences), that the efforts of the moderate, the virtuous, and the brave should be exerted to effect a reunion with the parent state.... It seems, by a conversation I have had here, that the ultimate practicability of introducing the Bishop of Osnaburg is not a novel idea among those who were formerly termed Loyalists. Ever since the peace it has been occasionally talked of and wished for. Yesterday, where I dined, half jest, half earnest, he was given as the first toast. I leave you now, my dear friend, to reflect how ripe we are for the most mad and ruinous project that can be suggested, especially when, in addition to this view, we take into consideration how thoroughly the patriotic part of the community, the friends of an efficient government, are discouraged with the present system, and irritated at the popular demagogues who are determined to keep themselves in office, at the risk of everything. Thence apprehensions are formed, that, though the measures proposed by the Convention may not be equal to the wishes of the most enlightened and virtuous, yet that they will be too high-toned to be adopted by our popular assemblies. Should that happen, our political ship will be left afloat on a sea of chance, without a rudder as well as without a pilot." (Works of Hamilton, I. 443.) In a grave and comprehensive private memorandum, drawn up by Hamilton soon after the Constitution appeared, in which he summed up the probabilities for and against its adoption, and the consequences of its rejection, the following occurs, as among the events likely to follow such rejection: "A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be, the establishment of a son of the present monarch in the supreme government of this country, with a family compact." (Works, II. 419, 421.)

[396] Pennsylvania Journal, August 22, 1787.

[397] The history of the term "Federal," or "Federalist," offers a curious illustration of the capricious changes of sense which political designations often undergo, within a short period of time, according to the accidental circumstances which give them their application. During the discussions of the Convention which framed the Constitution of the United States, the term federal was employed in its truly philosophic sense, to designate the nature of the government established by the Articles of Confederation, in distinction from a national system, that would be formed by the introduction of the plan of having the States represented in the Congress in proportion to the numbers of their inhabitants. But when the Constitution was before the people of the States for their adoption, its friends and advocates were popularly called Federalists, because they favored an enlargement of the Federal government at the expense of some part of the State sovereignties, and its opponents were called the Anti-Federalists. In this use, the former term in no way characterized the nature of the system advocated, but merely designated a supporter of the Constitution. A few years later, when the first parties were formed, in the first term of Washington's Administration, it so happened that the leading men who gave a distinct character to the development which the Constitution then received had been prominent advocates of its adoption, and had been known therefore as Federalists, as had also been the case with some of those who separated themselves from this body of persons and formed what was termed the Republican, afterwards the Democratic party. But the prominent supporters of the policy which originated in Washington's administration continued to be called Federalists, and the term thus came to denote a particular school of politics under the Constitution, although it previously signified merely an advocacy of its adoption. Thus, for example, Hamilton, in 1787, was no Federalist, because he was opposed to the continuance of a federal, and desired the establishment of a national government. In 1788, he was a Federalist, because he wished the Constitution to be adopted; and he afterwards continued to be a Federalist, because he favored a particular policy in the administration of the government, under the Constitution. It was in this latter sense that the term became so celebrated in our political history. The reader will observe that I use it, of course, in this work, only in the sense attached to it while the Constitution was before the people of the States for adoption.

[398] A striking proof of the importance attached by the people to the opinions of Washington and Franklin may be found in a controversy carried on for a short time in the newspapers of Philadelphia and New York, after the Constitution appeared, whether those distinguished persons really approved what they had signed.

[399] All but Maryland and Rhode Island.

[400] Passed September 28, 1787. Journals, XII. 149-166.

[401] This is the substance of a careful account given by General Knox to General Washington. (Works of Washington, IX. 310, 311.)

[402] A town on the Hudson River, seventy-five miles north of the city of New York.

[403] He went abroad in the summer of 1784.

[404] Compare Mr. Jefferson's autobiography, and his correspondence, in the first, second, and third volumes of his collected works (edition of 1853), and the letters of Mr. Madison.

[405] In the newspapers of the time there is to be found a story that Mr. Mason was very roughly received on his arrival at the city of Alexandria, after the adjournment of the national Convention, on account of his refusal to sign the Constitution. The occurrence is not alluded to in Washington's correspondence, although he closely observed Mr. Mason's movements, and regarded them with evident anxiety. The story is told in the Pennsylvania Journal of October 17, 1787,—a strong Federal paper. I know of no other confirmation of it than the fact that the people of Alexandria embraced the Constitution from the first with "enthusiastic warmth," according to the account given by General Washington to one of his correspondents. (Works, IX. 272.)

[406] Washington's Works, IX. 266, 267, 273, 340-342, 345, 346.

[407] This debate of three days in the South Carolina legislature was one of the most able of all the discussions attending the ratification of the Constitution. Mr. Lowndes was overmatched by his antagonists, but he resisted with great spirit, finally closed with the declaration that he saw dangers in the proposed government so great, that he could wish, when dead, for no other epitaph than this: "Here lies the man that opposed the Constitution, because it was ruinous to the liberty of America." He lived to find his desired epitaph a false prophecy. He was the father, of the late William Lowndes, who represented the State of South Carolina in Congress, with so much honor and distinction, during the administration of Mr. Madison.

[408] Mr. Martin's objections extended to many of the details of the Constitution, but his great argument was that directed against its system of representation, which he predicted would destroy the State governments.

[409] Hamilton, Works, II. 419, 420.

[410] Hamilton, Works, II. 421.

[411] See an account of him, ante, Vol. I. Book III. Chap. XIV.

[412] This was a mistake. On the 12th of September, Messrs. Gerry and Mason moved for a committee to prepare a bill of rights, but the motion was lost by an equal division of the States. Elliot, V. 538.

[413] Mr. McKean, although his residence was at Philadelphia, represented the lower counties of Delaware in Congress from 1774 to 1783. In 1777 he was made Chief Justice of Pennsylvania, being at the same time a member of Congress and President of the State of Delaware.

[414] The Constitution was ratified by a vote of 46 to 23.

[415] This was at a meeting held at Harrisburg, September 3d, 1788.

[416] The opposite parties were so much excited against each other, and the course of New Jersey was viewed with so much interest at Philadelphia among the "Federalists," that a story found currency and belief there, to the effect that Clinton, the Governor of New York, had offered the State of New Jersey, through one of its influential citizens, one half of the impost revenue of New York, if she would reject the Constitution. The preposterous character of such a proposition stamps the rumor with gross improbability. But its circulation evinces the anxiety with which the course of New Jersey was regarded in the neighboring States, and it is certain that the opposition in New York made great efforts to influence it.

[417] The situation of Georgia was brought to the notice of Washington immediately after his first inauguration as President of the United States, in an Address presented to him by the legislature of the State, in which they set forth two prominent subjects on which they looked for protection to "the influence and power of the Union." One of these was the exposure of their frontier to the ravages of the Creek Indians. The other was the escape of their slaves into Florida, whence they had never been able to reclaim them. Both of these matters received the early attention of Washington's administration.