Total population of the eight States in 1790, in which slavery had been or has since been abolished, 1,845,595.

Total population of the five States in 1790, in which slavery existed, and still exists, 1,793,407.

CHAPTER III.

Construction of the Executive and the Judiciary.

The construction of a national executive, although not surrounded by so many inherent practical difficulties as the formation of the legislative department, was likely to give rise to a great many opposite theories. The questions, of how many persons the executive ought to consist, in what mode the appointment should be made, and what were to be its relations to the legislative power, were attended with great diversities of opinion.

The question whether the executive should consist of one, or of more than one person, was likely to be influenced by the nature of the powers to be conferred upon the office. Foreseeing that it must necessarily be an office of great power, some of the members of the Convention thought that a single executive would approach too nearly to the model of the British government. These persons considered that the great requisites for an executive department—vigor, despatch, and responsibility—could be found in three persons as well as in one. Those, on the other hand, who favored the plan of a single magistrate, maintained that the prerogatives of the British monarchy would not necessarily furnish the model for the executive powers; and that unity in the executive would be the best safeguard against tyranny.

But this point connected itself with the question, whether the executive should be surrounded by a council, and the latter proposition again involved the consideration of the precise relation of the executive to the legislative power. That a negative of some kind upon the acts of the legislature was essential to the independence of the executive, was a truth in political science not likely to escape the attention of many of the members of the Convention. Whether it should be a qualified or an absolute negative was the real, and almost the sole question; for although there were some who held the opinion that no such power ought to be given, it was evident from the first that its necessity was well understood by the larger part of the assembly. In the first discussion of this subject, the negative was generally regarded as a means of defence against encroachments of the legislature on the rights and powers of the other departments. It was supposed that, although the boundaries of the legislative authority might be marked out in the Constitution, the executive would need some check against unconstitutional interference with its own prerogatives; and that, as the judicial department might be exposed to the same dangers, the power of resisting these also could be best exercised by the executive. But an absolute negative for any purpose was favored by only a very few of the members, and the proposition first adopted was to give the executive alone a revisionary check upon legislation, which should not be absolute if it were afterwards overruled by two thirds of each branch of the legislature.[31]

But inasmuch as this provision would leave the precise purposes of the check undetermined, and in order, as it would seem, to subject the whole of the legislative acts to revision and control by the executive, some of the members desired that the judiciary, or a convenient number of the judges, might be added to the executive as a council of revision. Among these persons were Mr. Madison and Mr. Wilson. The former expressed a very decided opinion, that, whether the object of a revisionary power was to restrain the encroachments of the legislature on the other departments, or on the rights of the people at large, or to prevent the passage of laws unwise in principle or incorrect in form, there would be great utility in annexing the wisdom and weight of the judiciary to the executive. But this proposition was rejected by a large majority of the States, and the power was left by the committee as it had been settled by their former decision. These proceedings, however, do not furnish any decisive evidence of the nature and purpose of the revisionary check.

But before this feature of the Constitution had been settled by the committee, they had determined on a mode in which the executive should be appointed. It is singular that the idea of an election of the executive by the people, either mediately or immediately, found so little favor at first, that on its first introduction it received the votes of but two States. Since the executive was to be the agent of the legislative will, it was argued by some members that it ought to be wholly dependent, and ought therefore to be chosen by the legislature. The experience of New York and of Massachusetts, on the other hand,—where the election of the first magistrate by the people had been successfully practised,—and the danger that the legislature and the candidates might play into each other's hands, and thus give rise to constant intrigues for the office, were the arguments employed by others. Upon the introduction of a proposition that the States be divided into districts, for the election by the people of electors of the executive, two States only recorded their votes in its favor, and eight States voted against it.[32] By the vote of eight States it was then determined that the executive should be elected by the national legislature for the term of seven years;[33] and subsequently it was determined that the executive should be ineligible to a second term of office, and should be removable on impeachment and conviction of malpractice or neglect of duty. A single executive was agreed to by a vote of seven States against three.[34] After the mode in which the negative was to be exercised had been settled, an attempt was made to change the appointment, and vest it in the executives of the States. But this proposal was decisively rejected.[35]

The judiciary was the next department of the proposed plan of government that remained to be provided. Like the executive, it was a branch of sovereign power unknown to the Confederation. The most palpable defect of that government, as I have more than once had occasion to observe, was the entire want of sanction to its laws. It had no judicial system of its own for decree and execution against individuals. All its legislation, both in nature and form, prescribed duties to States. The observance of these duties could only be enforced against the parties on whom they rested, and this could be done only by military power. But it was the peculiar and anomalous situation of the American Confederacy, that the power to employ force against its delinquent members had not been expressly delegated to it by the Articles of Union; and that it could not be implied from the general purposes and provisions of that instrument, without a seeming infraction of the article by which the States had reserved to themselves every power, jurisdiction, and right not "expressly" delegated to the United States. If this objection was well founded,—and it was universally held to be so,—we may well concur in the remark of The Federalist, that "the United States presented the extraordinary spectacle of a government destitute even of the shadow of constitutional power to enforce the execution of its own laws."[36]

The Confederation, too, had found it to be entirely impracticable to rely on the tribunals of the States for the execution of its laws. Such a reliance in a confederated government presupposes that the party guilty of an infraction of the laws or ordinances of the confederacy will try, condemn, and punish itself. The whole history of our Confederation evinces the futility of laws requiring the obedience of States, and proceeding upon the expectation that they will enforce that obedience upon themselves.

The necessity for a judicial department in the general government was, therefore, one of the most prominent of those "exigencies of the Union," for which it was the object of the present undertaking to provide. The place which that department was to occupy in a national system could be clearly deduced from the office of the judiciary in all systems of constitutional government. That office is to apply to the subjects of the government the penalties inflicted by the legislative power for disobedience of the laws. Disobedience of the lawful commands of a government may be punished or prevented in two modes. It may be done by the application of military power, without adjudication; or it may be done through the agency of a tribunal, which adjudicates, ascertains the guilty parties, and applies to them the coercion of the civil power. This last is the peculiar function of a judiciary; and in order that it may be discharged effectually, the judiciary that is to perform this office must be a part of the government whose laws it is to enforce. It is essential to the supremacy of a government, that it should adjudicate on its own powers, and enforce its own laws; for if it devolves this prerogative on another and subordinate authority, the final sanction of its laws can only be by a resort to military power directed against those who have refused to obey its lawful commands.

One of the leading objects in forming the Constitution was to obtain for the United States the means of coercion, without a resort to force against the people of the States collectively. Mr. Madison, at a very early period in the deliberations of the Convention, declared that the use of force against a State would be more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.[37] At his suggestion, a clause in Governor Randolph's plan authorizing the use of force against a delinquent member of the confederacy was laid aside, in order that a system might be framed which would render it unnecessary. This could be done only by making the authority of the government supreme in relation to the rights and powers that might be committed to it; and it could be made so only by applying its legislation to individuals through the intervention of a judiciary. A confederacy whose legislative power operates only upon States, or upon masses of people in a collective capacity, can be supreme only so far as it can employ superior force; and when the issue that is to determine the question of supremacy is once made up in that form, there is an actual civil war.

The introduction, therefore, of a judicial department into the new plan of government, of itself evinces an intention to clothe that government with powers that could be executed peacefully, and without the necessity of putting down the organized opposition of subordinate communities. By their resort to this great instrumentality, we may perceive how much, in this particular, the framers of the Constitution were aided by the spirit and forms of the institutions which the people of these States had already framed for their separate governments. The common law, which the founders of all these States had brought with them to this country, had accustomed them to regard the judiciary as clothed with functions in which two important objects were embraced. By the known course of that jurisprudence the judiciary is, in the first place, the department which declares the construction of the laws; and, in the second place, when that department has announced the construction of a law, it is not only the particular case that is settled, but the rule is promulgated that is to determine all future cases of the same kind arising under the same law. Thus the judiciary, in governments whose adjudications proceed upon the course of the common law, becomes not merely the arbitrator in a particular controversy, but the department through which the government interprets the rule of action prescribed by the legislature, and by which all its citizens are to be guided. This office of the judicial department had long been known in all the States of the Union at the time of the formation of the national Constitution.

By the introduction of this department into their plan of government, the framers of the Constitution obviously intended that it should perform the same office in their national system which the corresponding department had always fulfilled in the States. No other function of a judiciary was known to the people of the United States, and this function was both known and deemed essential to a well-regulated liberty. It was known that the judicial department of a government is that branch by which the meaning of its laws is ascertained, and applied to the conduct of individuals. To effect this, it was introduced into the system whose gradual formation and development we are now examining.

The committee not only declared that this department, like the legislative and the executive, was to be "supreme," but they proceeded to make it so. One of the first questions that arose concerning the construction of the judiciary was, whether it should consist solely of one central tribunal, to which appeals might be carried from the State courts, or should also embrace inferior tribunals to be established within the several States. The latter plan was resisted as an innovation, which, it was said, the States would not tolerate. But the necessity for an effective judiciary establishment, commensurate with the legislative authority, was generally admitted, and a large majority of the States were found to be in favor of conferring on the national legislature power to establish inferior tribunals;[38] while the provision for a supreme central tribunal was to be made imperative by the Constitution.

The intention of the committee also to make the judicial coextensive with the legislative authority, appears from the definition which they gave to both. Upon the national legislature they proposed to confer, in addition to the rights vested in Congress by the Confederation, power to legislate in all cases to which the separate States were incompetent, or in which the harmony of the United States might be interrupted by the exercise of individual legislation; and the further power 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. The jurisdiction of the national judiciary it was declared should extend to all cases which respect the collection of the national revenue, and to impeachments of national officers; and then the comprehensive addition was made of "questions which involve the national peace and harmony." This latter provision placed the general objects, which it was declared ought to be embraced by the legislative power, within the cognizance of the judiciary. Those objects were not yet described in detail, the purpose being merely to settle and declare the principles on which the powers of both departments ought to be founded.

But, as we have already had occasion to see, the idea of vesting in the judicial department such control over the legislation of the separate States as might be surrendered by them to the national government, was not yet propounded. The principle which was to ascertain the extent of that control was already introduced and acted upon, namely, that it should embrace all laws of the States which might conflict with the Constitution, or the treaties made under the national authority. The plan at present was, as we have seen, to treat this as a legislative power, to be executed by the direct control of a negative. But a nearer view of the great inconveniences of such an arrangement, and the general basis of the jurisdiction already marked out for the national judiciary, led to the development of the particular feature which was required as a substitute for direct interference with the legislative powers of the States. In truth, the important principle which proposed to extend the judicial authority to questions involving the national peace and harmony, embraced all the power that was required; and it only remained to be seen that the exercise of that power by the indirect effect of judicial action on the laws of the States after they had been passed, was far preferable to a direct interference with those laws while in the process of enactment.

The committee, with complete unanimity, determined that the judges of the supreme tribunal should hold their offices during good behavior.[39] This tenure of office was taken from the English statutes, and from the constitutions of some of the States which had already adopted it. The commissions of the judges in England, until the year 1700, were prescribed by the crown; and although they were sometimes issued to be held during good behavior, they were generally issued during the pleasure of the crown, and it was always optional with the crown to adopt the one or the other tenure, as it saw fit. But in the statute passed in the thirteenth year of the reign of William III., which finally secured the ascendency of the Protestant religion in that country, and made other provisions for the rights and liberties of the subject, it was enacted that judges' commissions should be made during good behavior, and that their salaries should be ascertained and established; but it was made lawful for the crown to remove them upon the address of both houses of Parliament.[40] Still, however, it was always considered that the commissions of the judges expired on the death of the king; and for the purpose of preventing this, and in order to make the judges more effectually independent, a new statute, passed in the first year of the reign of George III., declared that the commissions of the judges should continue in force during their good behavior, notwithstanding the demise of the crown; and that such salaries as had been once granted to them should be paid in all future time, so long as their commissions should remain in force. The provision which made them removable by the crown on the address of both houses of Parliament was retained and re-enacted.[41]

In framing the Constitution of the United States, the objectionable feature of the English system was rejected, and its valuable provisions were retained. No one, at the stage of the proceedings which we are now examining, proposed to make the judges removable on the address of the legislature; and although at a much later period this provision was brought forward, it received the vote of a single State only. The first determination of the Convention, in committee of the whole, was, that the judges should hold their offices during good behavior; that they should receive punctually, at stated times, a fixed compensation for their services, in which no increase[42] or diminution should be made so as to affect the persons actually in office at the time.

The appointment of the judges was by general consent, at this stage of the proceedings, vested in the Senate.

NOTE ON THE JUDICIAL TENURE.

The English historians and juridical writers have not given a very satisfactory account of the purpose for which the power of removal on the address of the two Houses of Parliament was incorporated with the provision which gave the judges their commissions during good behavior. It is obvious that, if the power of removal is to be regarded as an unqualified power, to be exercised for any cause, or without the existence of any cause, the office is held during the pleasure of the legislative and executive branches of the government, and not during the official good conduct of the incumbent. In this view of it, therefore, the provision is inconsistent with the declared tenure of the commission. On the other hand, if the power of removal is not to be regarded as a limitation upon the tenure of the office, but the process of removal is to be considered as a mode in which the unfitness or incapacity of the incumbent is to be ascertained,—treating it as a substitute for impeachment, to be used in cases of palpable official incapacity or unfitness,—then it is not repugnant to the tenure of good behavior. In support of this view of the subject it is to be observed that, in the statute of 1 Geo. III. c. 23, the tenure of good behavior is made the leading and primary object of the enactment. The motives for it are set forth with great point and emphasis. The King is made to declare from the throne to the two houses of Parliament that he looks upon the independency and uprightness of judges as essential to the impartial administration of justice, as one of the best securities to the rights and liberties of the subject, and as most conducive to the honor of the crown. The enacting part of the statute, which follows this recital, provides anew that the judges' commissions shall be and remain in force during their good behavior, notwithstanding a demise of the crown; and the power of removal by the King, on the address of both houses, follows this enactment as a proviso. If, therefore, a not unusual rule of construction is applied, the power embraced in the proviso should be so construed as to make its operation consistent with, and not repugnant to, the great purpose of the statute, which was to establish the tenure of good behavior. In this view the rightful exercise of the power may be confined to cases where the individual is no longer within that tenure, or, in other words, where the good behavior has ceased, or become impossible. Upon this construction the power of removal can only be rightfully exercised when a cause exists which touches the official conduct or capacity of the incumbent.

In the Constitution of the State of Massachusetts, formed in 1780, the power of removal by the executive, on the address of both houses of the legislature, was adopted from the English statutes, and it was introduced as a proviso after the tenure of good behavior had been emphatically declared for all judicial officers, just as it stands in the act of 1 Geo. III.

An objection which has sometimes been urged against the construction above suggested is, that it is narrower than the terms of the provision, and that it would not include a case where a judge may have discharged all his official duties with propriety and ability, and may yet be personally obnoxious, as, for example, on account of gross immorality. But the answer to this objection is, that the question, whether a case of official good conduct accompanied by personal immorality, or the like defect of character, was intended to be within the power of removal, must be determined on a careful view of the whole provision. The meaning and scope of the qualification of "good behavior" must be first ascertained. If it means simply that the individual is to hold his commission so long as each official duty is discharged in the manner contemplated by law, then a mere personal immorality, which has not affected or influenced the discharge of official duty, is not inconsistent with the good behavior established as the tenure of the office. But if the good behavior means, not merely that the individual shall discharge his official duties in a competent manner, with an average amount of ability, and without corruption, but that he shall so order his life and conversation as not to expose himself to a cessation of the power to act intelligently and uprightly, then there may undoubtedly be a case of personal immorality that would touch the tenure of the office. Still it must be the tenure of the office that is touched, and it must be touched by misconduct or incapacity. The phrase "good behavior" is technical, and has always had a meaning attached to it which confines it to the discharge of official duty. It is, therefore, not what men think of the individual, or how they feel towards him, or how they regard him, but what he does or omits officially, that is to determine whether he continues to behave well in his office; and unless some conduct, or some bodily or mental condition, is adduced, that shows him to be incapable of fulfilling the duties of his station in the manner in which the law intends they shall be discharged, his tenure of good behavior is not lost.

But the naked power of removal by the other two branches of the government exists in the English constitution, and in that of the State of Massachusetts, without any declaration of the purposes or occasions to which it is to be applied; and it is not easy to reconcile it with the avowed object of judicial independence obviously embraced by the terms of the commission prescribed in both of them. The two most important native writers on the English constitution, Sir William Blackstone and Mr. Hallam, regard the provision as a restraint on the former practice of the crown, of dismissing judges when they were not sufficiently subservient to the views of the government in political prosecutions. Mr. Hallam, after referring to the provisions of the two statutes, lays down the proposition, that "no judge can be dismissed from office, except in consequence of a conviction for some offence, or the address of both houses of Parliament, which is tantamount to an act of the legislature." (Constitutional History, III. 262.) He suggests further, that although the commissions of the judges cannot be vacated by the authority of the crown, yet that they are not wholly out of the reach of its influence. They are accessible to the hope of further promotion, to the zeal of political attachment, to the flattery of princes and ministers, and to the bias of their professional training. He therefore commends the wisdom of subjecting them in some degree to legislative control. (Ibid.) But it is not to be inferred from his remarks that that control can be rightfully exercised without the existence of a cause which affects their good behavior. On the contrary, he appears to consider that the purpose was to prevent a subserviency to the crown in their official conduct, by subjecting that conduct to legislative scrutiny. To the honor of England, it is to be remembered that, since this power was recognized, there has never been an instance in which a judge has been removed for political or party purposes.

Mr. Justice Story has taken substantially the same view of the subject. He says: "The object of the act of Parliament was to secure the judges from removal at the mere pleasure of the crown; but not to render them independent of the action of Parliament. By the theory of the British constitution, every act of Parliament is supreme and omnipotent. It may change the succession to the crown, and even the very fundamentals of the constitution. It would have been absurd, therefore, to have exempted the judges alone from the general jurisdiction of this supreme authority in the realm. The clause was not introduced into the act for the purpose of conferring the power on Parliament, for it could not be taken away or restricted, but simply to recognize it as a qualification of the tenure of office; so that the judges should have no right to complain of any breach of an implied contract with them, and the crown should not be deprived of the means to remove an unfit judge whenever Parliament should, in their discretion, signify their assent." (Commentaries on the Constitution, Vol. II. § 1623.)

By describing it as a "qualification of the tenure of office," the learned commentator probably did not mean that the power was intended to be recognized as a power to remove judges against whom no official misconduct or incapacity could be charged; for the context shows that he was speaking of the removal of "unfit" judges as a power that it was proper to recognize and regulate. If he intended to lay it down as a complete and actual qualification of the tenure of good behavior, it must have been upon the theory to which he refers, upon which an act of Parliament can do anything, either with or without reason. Upon this theory all the commissions of all the judges in the realm may be vacated without inquiry into their fitness or unfitness. But if the true view of the subject is, that the King's commission, which runs quamdiu se bene gesserit, cannot be determined when the crown alone decides that the good behavior has ceased, or become impracticable, but may be determined when the whole legislative power has so decided, then in one sense it is a qualification of the commission; because the latter emanates from the crown, but after it has issued, it is to be superintended by Parliament and the crown.

When we turn to our American constitutions, all embarrassment arising from the English theory of the omnipotence of the legislative department vanishes. In our systems of government the people alone possess supreme power. The legislature is but the organ of their will for certain specific and limited purposes, which are carefully defined in a written constitution; and no power that is not plainly confided by the constitution to the legislative and executive departments of the government can be exercised by them. Under every American constitution, therefore, which has conferred upon the executive power to remove a judge upon the address of the two houses of the legislature, the question whether that power extends to any cases but those of official misconduct or incapacity must be determined by a careful consideration of the position which that constitution assigns to the judiciary. If, as is the case, for example, under the Constitution of the State of Massachusetts, there is a clear intention manifest to make the judiciary independent of the other departments, and this intention appears by other provisions, and the enunciation of other principles besides that which in terms establishes the tenure of good behavior, then the power of removal upon address ought to be construed and exercised consistently with the tenure of good behavior, and not in direct repugnance to it. It is plain that, if the power is construed as a naked and unrestrained power, established as a direct qualification of the tenure of office, it may be used for party purposes, and may be exercised for any cause for which a dominant party may see fit to employ it.

The danger of the abuse of this power, arising from the absence of any express restriction upon it, and of any statement of its purpose, in the Constitution of Massachusetts, has led to an unsuccessful effort in that State to make its exercise more difficult than it is under the actual provision. In the Convention held in the year 1820, in which the Constitution was subjected to revision, Mr. Webster, Mr. Justice Story, and others of the eminent jurists of Massachusetts, endeavored to procure an amendment requiring the address to be adopted by a vote of two thirds in both branches, instead of allowing it to be carried, as the Constitution has always stood, and as the rule is in England, by a bare majority. The effort failed; but the result of the whole discussion to which it gave rise shows the general understanding of the people of the State with regard to the rightful extent of this power. The Convention was a very remarkable assembly of the intellect and worth of the State, and both the political parties of the time were fully represented in it, by their most distinguished members. All were agreed that the power was capable of abuse, and that to apply it to any other than cases of official incapacity or unfitness would be an abuse. But those who opposed the adoption of a two-thirds rule were unwilling to anticipate such an abuse of the power, and their arguments prevailed.

The framers of the Constitution of the United States intrusted no such power over the judiciary to the other branches of the government. They regarded the possibility of its being used for improper purposes as a sufficient reason why it should not exist. They thought it, moreover, a contradiction in terms to say that the judges should hold their offices during good behavior, and yet be removable without a trial. But the radical objection was one that does not seem to have been sufficiently attended to in the early formation of some of the State constitutions, but which the peculiar system established by the Constitution of the United States made especially prominent.

That Constitution was designed to be in some respects an abridgment of the previous powers of the States. Like the State constitutions, also, it embraced a careful distribution of the powers of government between the different departments, and a careful separation of the functions of one department from those of another. Questions must, therefore, necessarily arise in the administration of the government, whether one of these departments had overstepped the limits assigned to it as against the others, and whether the action of the general or the State governments in particular instances is within their appropriate spheres. These, now familiar to us as constitutional questions, were to be subjected to the arbitrament of the national judiciary; and it was almost universally felt that this delicate and important power must be confided to judges whose tenure of office could be touched only by the solemn process of accusation and impeachment. The same necessity exists under a State constitution, but perhaps not in the same degree; for while the judiciary of a State is often called upon to decide finally upon the conformity of acts of legislation with the State constitution,—and ought therefore clearly to be beyond the reach of legislative influence,—yet no State judiciary is the final arbiter between the rights and powers of the national government and the rights and powers of the States. This function belongs to the supreme judiciary of the United States. It was foreseen that it would not infrequently involve the decision of questions in which whole classes of States might have the deepest interest, which would connect themselves with party discussions, and on which the representatives of the States in the national legislature would be likely to share in the feelings, and even in the passions, of their constituents. There could be no security for a judiciary called upon to decide such questions, if they were to be subject to a power of removal by the other two branches of the government. Their commissions might make them theoretically independent, but practically they could be removed at the pleasure of those whom they might have offended. In truth, there is no State in this Union where such a power of removal is vested without qualification in the legislative and executive departments, in which the judges can be said to hold their commissions during good behavior, unless that power is construed to embrace only those cases of palpable incapacity in which an impeachment would be unnecessary or impracticable. As a naked and unqualified power, it is repugnant to the tenure of good behavior. It was so regarded in the Convention which framed the Constitution of the United States, where a proposition to introduce it received the vote of the single State of Connecticut only. (Madison, Elliot, V. 481, 482.)

CHAPTER IV.

Admission of New States.—Guaranty of Republican Government.—Power of Amendment.—Oath to Support the New System.—Ratification.

Having settled a general plan for the organization of the three great departments of government, the committee next proceeded to provide for certain other objects of primary importance, the necessity for which had been demonstrated by the past history of the Confederacy. The first of these was the admission of new States into the Union.

It had long been apparent, that the time would sooner or later arrive when the limits of the United States must be extended, and the number of the States increased. Circumstances had made it impossible that the benefits and privileges of the Union should be confined to the original thirteen communities by whom it had been established. Population had begun to press westward from the Atlantic States with the energy and enterprise that have marked the Anglo-American character since the first occupation of the country. Wherever the hardy pioneers of civilization penetrated into the wilderness of the Northwest, they settled upon lands embraced by those shadowy boundaries which carried the territorial claims of some of the older States into the region beyond the Ohio. Circumstances, already detailed in a former part of this work, had compelled a surrender of these territorial claims to the United States; and in the efforts made by Congress, both before and after the cessions had been completed, to provide for the establishment of new States, and for their admission into the Union, we have already traced one of the great defects of the Confederation, which rendered it incapable of meeting the exigencies created by this inevitable expansion of the country.[43]

In the year 1784, when Mr. Jefferson brought into Congress a measure for the organization and admission of new States, to be formed upon the territories that had been or might thereafter be ceded to the United States, he seems to have considered that the Articles of Confederation authorized the admission of new States formed out of territory that had belonged to a State already in the Union, by a vote of nine States in Congress. But a majority of the States in Congress evidently regarded the power of admission as doubtful; and although they passed the resolves for the admission of new States,—principally because it was extremely important to invite cessions of Western territory,—they left the provision as to the mode of admission so indefinite, that the whole question of power would have to be opened and decided on the first application that might be made by a State to be admitted into the Union.[44]

When the Ordinance of 1787 was formed, it made provision for the establishment of new States in the territory, and declared that, when any of them should have sixty thousand free inhabitants, it should be admitted into Congress on an equal footing with the original States. But the mode of admission was not prescribed. The power to admit was assumed, and no rule of voting on the question of admission was referred to. The probability is, that Congress anticipated at this time that a definite constitutional power would be provided by the Convention that had been summoned to revise the federal system. This power was embraced in the plan adopted in the committee of the whole of that body, by a resolve which declared "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." In what mode this provision was made will be seen hereafter, when we come to examine the framework of the Constitution.

Another of the new powers now proposed to be given to the Union was that of protecting and upholding the governments of the States. I have already had occasion to explain the relations of the Confederation to its members in a time of internal disturbance and peril; and have given to the incapacity of that government to afford any aid in such emergencies great prominence among the causes which led to the revision of the federal system.[45] Under that system the States had been so completely sovereign, and so independent of each other in all that related to their internal concerns, that the government of any one of them might have been subverted without the possibility of an authorized and regulated interference by the rest. The constitutional and republican liberty that had been established in these States after the Revolution had freed them from the dominion of England, was at that period a new and untried experiment; and in order that we of this generation may be able to appreciate the importance of the guaranty proposed to be introduced into the Constitution of the United States, it is necessary for us to look somewhat farther than the particular circumstances of the commotions in New England that marked the year 1787 as an era of especial danger to these republican governments. It is, in fact, necessary for us to remember the contemporaneous history of Europe, and to observe how the events that were taking place in the Old World necessarily acted upon our condition, prospects, and welfare.

The French Revolution, consummated in 1791 by the execution of the King, was already begun when the Constitution of the United States went into operation. No one who has examined the history of the first years of our present national government, can fail to have been impressed with the dangers which the administration of our domestic affairs incurred of becoming complicated with the politics of Europe. As in all other countries, so in America, the events and progress of the Revolution in France found sympathy or reprobation, according to the natural tendencies, the previous associations, and the political sentiments of individuals. But in the United States there was a peculiar and predisposing cause for the liveliest interest in the success of the principles that were believed, by large masses of the people, to be involved in the French Revolution. Our own struggles for liberty, our bold and successful assertion of the rights of man, and our achievement of the means and opportunity of self-government, had evidently and strikingly acted upon France. The people of the United States were fully sensible of this; and transferring to the French nation the debt of gratitude for the aid which had flowed to us in the first instance from their government without any special influence of their own, large numbers of our people became warmly enlisted in the cause of that Revolution, of which the early promise seemed so encouraging to the best hopes of mankind, and the full development of which first ruined the interests of liberty, in the wanton excesses of anarchy and national ambition, and finally crushed them beneath the usurpations and necessities of military despotism. On the other hand, the more cautious—who, if they had not from the first looked with distrust upon the whole movement of the Revolutionary party in France, very soon believed that it could result in no real benefit to France or to the world—tended strongly and naturally to the side of those governments with which the leaders of the Revolution had to contend. In consequence of this state of feeling among different portions of the people of the United States, with reference to French affairs, and of the conduct of France and England towards ourselves, the administration of Washington had great difficulty both in preserving the neutrality of the country, and in excluding foreign influence and interference in our domestic affairs.

Had this state of things, which followed immediately after the inauguration of our new government, found us still under the Confederation, there can be no doubt that our condition would have afforded to the Revolutionary party in France the means not only of disseminating their principles among us, but also of overturning any of the institutions of the weaker States which might have stood in the way of their acquiring an influence in America. Yet what form or principle of government is there in the world, that more imperatively requires all foreign or external influence to be repelled, than our own republican system, of which it is a cardinal doctrine that every institution and every law must express the uncontrolled and spontaneous will of a majority of the people who constitute the political society? Other governments may be upheld by the interference of their neighbors; other systems may require, and perhaps rightfully admit, foreign influence. Ours demand an absolute immunity from foreign control, and can exist only when the authority of the people is made absolutely free. That their authority should be made and kept free to act upon the principles that enable it to operate with certainty and safety, it requires the guaranty of a system that rests upon the same principles, is committed to the same destiny, is itself constituted by American power, and is created for the express purpose of preserving the republican form, the theory and the right of self-government.

Such was the purpose of the framers of the Constitution, when, in this early stage of their deliberations, they determined that a republican constitution should be guaranteed by the United States to each of the States.[46] The object of this provision was, to secure to the people of each State the power of governing their own community, through the action of a majority, according to the fundamental rules which they might prescribe for ascertaining the public will. The insurrection in Massachusetts, then just suppressed, had made the dangers that surround this theory of government painfully apparent. It had demonstrated the possibility that a minority might become in reality the ruling power. Fortunately, no foreign interference had then intervened; but a very few years only elapsed, before a crisis occurred, in which the institutions of the States would have been quite unable to withstand the shocks proceeding from the French Revolution, if the government of the Union had not been armed with the power of protecting and upholding them.

The committee also added another new feature to their plan of government, which was a capacity of being amended. The Articles of Confederation admitted of changes only when they had been agreed upon in Congress, and had afterwards been confirmed by the legislatures of all the States. Indeed, it resulted necessarily from the nature of that government, that it could only be altered by the consent of all the parties to it. It was now proposed and declared, that provision ought to be made for the amendment of the Articles of Union, whenever it should seem necessary. This declaration looked to the establishment of some new method of originating improvements in the system of government, and a new rule for their adoption.

It was also determined that the members of the State governments should be bound by oath to support the Articles of Union. The purpose of this provision was to secure the supremacy of the national government, in cases of collision between its authority and the authority of the States. It was a new feature in the national system, and received at first the support of only a bare majority of the States.[47]

Finally, it was provided that the new system, after its approbation by Congress, should be submitted to representative assemblies recommended by the State legislatures, to be expressly chosen by the people to consider and decide thereon. The question has often been discussed, whether this mode of ratification marks in any way the character of the government established by the Constitution. At present it is only necessary to observe, that the design of the committee was to substitute the authority of the people of the States in the place of that of the State legislatures, for a threefold purpose. First, it was deemed desirable to resort to the supreme authority of the people, in order to give the new system a higher sanction than could be given to it by the State governments. Secondly, it was thought expedient to get rid of the doctrine often asserted under the Confederation, that the Union was a mere compact or treaty between independent States, and that therefore a breach of its articles by any one State absolved the rest from its obligations. In the third place, it was intended, by this mode of ratification, to enable the people of a less number of the States than the whole to form a new Union, if all should not be willing to adopt the new system.[48] The votes of the States in committee, upon this new mode of ratification, show that on one side were ranged the States that were aiming to change the principle of the government, and on the other the States that sought to preserve the principle of the Confederation.[49]

These, together with a provision that the authority of the old Congress should be continued to a given day after the changes should have been adopted, and that their engagements should be completed by the new government, were the great features of the system prepared by the committee of the whole, and reported to the Convention, on the thirteenth of June.[50]

CHAPTER V.

Issue between the Virginia and the New Jersey Plans.—Hamilton's Propositions.—Madison's View of the New Jersey Plan.

The nature of the plan of government thus proposed—called generally in the proceedings of the Convention the Virginia plan—may be perceived from the descriptions that have now been given of the design and scope of its principal features, and of the circumstances out of which they arose. It purported to be a supreme and a national government; and we are now to inquire in what sense and to what extent it was so.

Its powers, as we have seen, were to be distributed among the three departments of a legislative, an executive, and a judiciary. Its legislative body was to consist of two branches, one of which was to be chosen directly by the people of the States, the other by the State legislatures; but in both, the people of the States were to be represented in proportion to their numbers.

Its legislative powers were to embrace certain objects, to which the legislative powers of the separate States might be incompetent, or where their exercise might be injurious to the national interests;[51] and it was moreover to have a certain restraining authority over the legislation of the States. This plan necessarily supposed that the residue of the sovereignty and legislative power of the States would remain in them after these objects had been provided for; and it therefore contemplated a system of government, in which the individual citizen might be acted upon by two separate and distinct legislative authorities. But by providing that the legislative power of the national government should be derived from the people inhabiting the several States, and by creating an executive and a judiciary with an authority commensurate with that of the legislature, it sought to make, and did theoretically make, the national government, in its proper sphere, supreme over the governments of the States.

With respect to the element of stability, as depending on the length of the tenure of office, this system was far in advance of any of the republican governments then existing in America; for it contemplated that the members of one branch of the legislature should be elected for three, and those of the other branch, and the executive, for seven years.

If we compare it with the Confederation, which it was designed to supersede, we find greatly enlarged powers, somewhat vaguely defined; the addition of distinct and regular departments, accurately traced; and a totally different basis for the authority and origin of the government itself.

Such was the nature of the plan of government proposed by a majority of the States in Convention, for the consideration of all. It had to encounter, in the first place, the want of an express authority in the Convention to propose any change in the fundamental principle of the government. The long existence of the distinctions between the different States, the settled habit of the people of the States to act only in their separate capacities, their adherence to State interests, and their strong prejudices against all external power, had prevented them from contemplating a government founded on the principle of a national unity among the populations of their different communities. Hence, it is not surprising that men, who came to the Convention without express powers which they could consider as authority for the introduction of so novel a principle, should have been unwilling to agree to the formation of a government, that was to involve the surrender of a large portion of the sovereignty of each State. They felt a real apprehension lest their separate States should be lost in the comprehensive national power which seemed to be foreshadowed by the plans at which others were aiming. It seemed to them that the consequence, the power, and even the existence, of their separate political corporations, were about to be absorbed into the nation.

In the second place, the mode of reconciling the co-ordinate existence of a national and a State sovereignty had undergone no public discussion. At the same time, almost all the evils, the inconveniences, and the dangers which the country had encountered since the peace of 1783, had sprung from the impossibility of uniting the action of the States upon measures of general concern. For this reason, there were men in the Convention who at one time doubted the utility of preserving the States, and who naturally considered that the only mode in which a durable and sufficient government could be established, was to fuse all the elements of political power into a single mass. To those who had this feeling, the Virginia plan was as little acceptable as it was, for the opposite reason, to others.

It was, however, from the party opposed to any departure from the principle of the Confederation, that the first and the chief opposition came. The delegations of Connecticut, New York (with the exception of Hamilton), New Jersey, and Delaware, and one prominent member from Maryland,—Luther Martin,—preferred to add a few new powers to the existing system, rather than to substitute a national government. They were determined not to surrender the present equality of suffrage in Congress; and accordingly the members from the State of New Jersey brought forward a plan of a purely "federal" character.[52]

This plan proposed that the Articles of Confederation should be so revised and enlarged as to give to Congress certain additional powers, including a power to levy duties for purposes of revenue and the regulation of commerce. But it left the constitution of Congress as it was under the Confederation, and left also the old mode of discharging the national expenses, by means of requisitions on the States, changing only the rule of proportion from the basis of real property to that of free population. It contemplated an executive, to be elected by Congress, and a supreme judiciary to be appointed by the executive; leaving to the judiciaries of the States original cognizance of all cases arising under the laws of the Union, and confining the national judiciary to an appellate jurisdiction, except in the cases of impeachments of national officers. It proposed to secure obedience to the acts and regulations of Congress, by making them the supreme law of the States, and by authorizing the executive to employ the power of the confederated States against any State or body of men who might oppose or prevent their being carried into execution.

The mover of this system[53] founded his opposition to the plan framed by the committee of the whole chiefly upon the want of power in the Convention to propose a change in the principle of the existing government. He argued, with much acuteness, that there was either a present confederacy of the States, or there was not; that if there was, it was one founded on the equal sovereignties of the States, and that it could be changed only by the consent of all; that as some of the States would not consent to the change proposed, it was necessary to adhere to the system of representation by States; and that a system of representation of the people of the States was inconsistent with the preservation of the State sovereignties. The answer made to this objection was, that although the States, in appointing their delegates to the Convention, had given them no express authority to change the principle of the existing constitution, yet that the Convention had been assembled at a great crisis in the affairs of the Union, as an experiment, to remedy the evils under which the country had long suffered from the defects of its general government; that whatever was necessary to the safety of the republic must, under such circumstances, be considered as within the implied powers of the Convention, especially as it was proposed to do nothing more than to recommend the changes which might be found necessary; and that although all might not assent to the changes that would be proposed, the dissentient States could not require the others to remain under a system that had completely failed, when they could form a new confederacy upon wiser and better principles.[54]

It was at this point that Hamilton interposed, with the suggestion of views and opinions that have sometimes subjected him, unjustly, to the charge of anti-republican and monarchical tendencies and designs. These views and opinions should be carefully considered by the reader, not only in justice to this great statesman, but because they had much influence, in an indirect manner, in producing the form and tone which the Constitution finally received.

It should be recollected, in making this examination, that, so far as there was at this time a distinct issue before the Convention, it was presented by the New Jersey plan of a system that would leave the sovereignties of the States almost wholly undiminished, on the one hand, and on the other by the Virginia plan of a partial but as yet undefined surrender of powers to a general government. The construction of this proposed government, and the powers that it ought to possess, were the points which Hamilton now dealt with, in the first address which he made to the committee.

He has left it on record, that the views which he announced on this occasion were rested upon the three following positions:—1. That the political principles of the people of this country would endure nothing but a republican government. 2. That, in the actual situation of the country, it was of itself right and proper that the republican theory should have a full and fair trial. 3. That to such a trial it was essential that the government should be so constructed as to give it all the energy and stability reconcilable with the principles of that republican theory.[55] The opinions advanced by Hamilton at the stage of the proceedings which we are now examining must always be considered with reference to the principles which guided him, in order that a right estimate may be formed of their influence on the final result of the issue then pending.

After disposing of the objection that the Convention had no power to propose a plan of government differing from the principle of the Confederation, he proceeded to say, that there were three lines of conduct before them: first, to make a league offensive and defensive between the States, treaties of commerce, and an apportionment of the public debt; secondly, to amend the present Confederation by adding such powers as the public mind seemed ready to grant; thirdly, to form a new government, which should pervade the whole, with decisive powers and a complete sovereignty. The practicability of the last course, and the mode in which the object should be accomplished, were the important and the only real questions before them. But the solution of those questions involved an inquiry into the principles of civil obedience, which are the great and essential supports of all government.

The first of these principles, he said, is an active and constant interest in the support of a government. This principle did not then exist in the States, in favor of the general government. They constantly pursued their own particular interests, which were adverse to those of the whole. The second principle is a conviction of the utility and necessity of a government. As the general government might be dissolved and yet the order of society would continue,—so that many of the purposes of government would still be attainable, to a considerable degree, within the States themselves,—a conviction of the utility or the necessity of a general government could not at that time be considered as an active principle among the people of the States. The third principle is an habitual sense of obligation; and here the whole force of the tie was on the side of State government. Its sovereignty was immediately before the eyes of the people; its protection they immediately enjoyed; by its hand, private justice was administered. In the existing state of things, the central government was known only by its unwelcome demands of money or service.

The fourth principle on which government must rely is force; by which he meant both the coercion of laws and the coercion of arms. But as to the general government, the coercion of laws did not exist; and to employ the force of arms on the States would amount to a war between the parties to the confederacy. The fifth principle was influence; by which he did not mean corruption, but a dispensation of those regular honors and just emoluments which produce an attachment to government. Almost the whole weight of these was then on the side of the States, and must remain so in any mere confederacy, rendering it in its very nature feeble and precarious.

The lessons afforded by experience led to the evident conclusion that all federal governments were weak and distracted. They were so, because the strong principles which he had enumerated operated on the side of the constituent members of the confederacy, and against the central authority. In order, therefore, to establish a general and national government, with any hope of its duration, they must avail themselves of these principles. They must interest the wants of men in its support; they must make it useful and necessary; and they must give it the means of coercion. For these purposes, it would be necessary to make it completely sovereign.

The New Jersey plan certainly would not produce this effect. It merely granted the regulation of trade and a more effectual collection of the revenue, and some partial duties, which, at five or ten per cent, would perhaps only amount to a fund to discharge the debt of the corporation. But there were a variety of objects which must necessarily engage the attention of a national government. It would have to protect our rights against Canada on the north, against Spain on the south, and the western frontier against the savages. It would have to adopt necessary plans for the settlement of the frontiers, and to institute the mode in which settlements and good governments were to be made. According to the New Jersey plan, the expense of supporting and regulating these important matters could only be defrayed by requisitions. This mode had already proved, and would always be found, ineffectual. The national revenue must be drawn from commerce,—from imposts, taxes on specific articles, and even from exports, which, notwithstanding the common opinion, he held to be fit objects of moderate taxation.

The radical objections to the New Jersey plan he held to be its equality of suffrage as between the States; its incapacity to raise forces or to levy taxes; and the organization of Congress, which it proposed to leave unchanged. On the other hand, the great extent of the country to be governed, and the difficulty of drawing a suitable representation from such distances, led him to regard the Virginia plan with doubt and hesitation. At the same time, he declared that the system must be a representative and republican government. But representation alone, without the element of a permanent tenure of office in some part of the system, would not, as he believed, answer the purpose. For, as society naturally falls into the political divisions of the few and the many, or the majority and the minority, some part of every good representative government must be so constituted as to furnish a check to the mere democratic element. The Virginia plan, which proposed that both branches of the national legislature should be chosen by the people of the States, and that the executive should be appointed by the legislature, presented a democratic Assembly to be checked by a democratic Senate, and both of them by a democratic chief magistrate. To give a Senate or an executive thus chosen an official term a few years longer than that of the members of the Assembly, would not be sufficient to remove them from the violence and turbulence of the popular passions.

For these reasons, they must go as far, in order to attain stability and permanency, as republican principles would admit. He would therefore have the Senate and the executive hold their offices during good behavior. Such a system would be strictly republican, so long as these offices remained elective and the incumbents were subject to impeachment. The term monarchy could not apply to such a system, for it marks neither the degree nor the duration of power. And in order to obviate the danger of tumults attending the election of an executive who should hold his office during good behavior, he proposed that the election should be made by a body of electors, to be chosen by the people, or by the legislatures of the States. The Assembly he proposed to have chosen by the people of the States for three years. The legislative powers of the general government he desired to have extended to all subjects; at the same time, he did not contemplate the total abolition of the State governments, but considered them essential, both as subordinate agents of the general government, and as the administrators of private justice among their own citizens.[56]

His conclusions were, first, that it was impossible to secure the Union by any modification of a federal government; secondly, that a league, offensive and defensive, was full of certain evils and greater dangers; thirdly, that to establish a general government would be very difficult, if not impracticable, and liable to various objections. What then was to be done? He answered, that they must balance the inconveniences and the dangers, and choose that system which seemed to have the fewest objections.