History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 4

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 a.s.semblies 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 Const.i.tution. At present it is only necessary to observe, that the design of the committee was to subst.i.tute 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 a.s.serted 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]

FOOTNOTES:

[43] _Ante_, Vol. I. Book III. Chap. V.

[44] Mr. Jefferson has very lucidly stated the position of the question in some observations furnished by him, when in Paris, to one of the editors of the _Encyclopedie Methodique_, in 1786 or 1787, which I here insert entire. "The eleventh Article of Confederation admits Canada to accede to the Confederation at its own will, but adds, 'no other Colony shall be admitted to the same unless such admission be agreed to by nine States.' When the plan of April, 1784, for establis.h.i.+ng new States, was on the carpet, the committee who framed the report of that plan had inserted this clause: 'Provided nine States agree to such admission, according to the reservation of the eleventh of the Articles of Confederation.' It was objected,--1.

That the words of the Confederation, 'no other Colony,' could refer only to the residuary possessions of Great Britain, as the two Floridas, Nova Scotia, &c., not being already parts of the Union; that the law for 'admitting' a new member into the Union could not be applied to a territory which was already in the Union, as making part of a State which was a member of it. 2. That it would be improper to allow 'nine' States to receive a new member, because the same reasons which rendered that number proper now would render a greater one proper when the number composing the Union should be increased. They therefore struck out this paragraph, and inserted a proviso, that 'the consent of so many States in Congress shall be first obtained as may at the time be competent'; thus leaving the question whether the eleventh Article applies to the admission of new States to be decided when that admission shall be asked. See the Journal of Congress of April 20, 1784. Another doubt was started in this debate, viz. whether the agreement of the nine States required by the Confederation was to be made by their legislatures, or by their delegates in Congress? The expression adopted, viz. 'so many States in Congress is first obtained,' shows what was their sense of this matter. If it be agreed that the eleventh Article of the Confederation is not to be applied to the admission of these new States, then it is contended that their admission comes within the thirteenth Article, which forbids 'any alteration unless agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State.' The independence of the new States of Kentucky and Franklin will soon bring on the ultimate decision of all these questions." (Jefferson's Works, IX. 251.) That the admission of a new State into the Union could have been regarded as an alteration of the Articles of Confederation, within the meaning and intention of the thirteenth Article, seems scarcely probable. Such an admission would only have increased the number of the parties to the Union, but it would of itself have made no change in the Articles; and it was against alterations _in the Articles_ that the provision of the thirteenth was directed. The objections which Mr. Jefferson informs us were raised in Congress to a deduction of the power from the eleventh Article, appear to be decisive. In truth, when the Articles of Confederation were framed, the subject of the admission of new States, so far as it had been considered at all, was connected with the difficult and delicate controversy respecting the western boundaries of some of the old States, and the equitable claim of the Union to become the proprietor of the unoccupied lands beyond those boundaries. An attempt was made to obtain for Congress, in the Articles of Confederation, power to ascertain and fix the western boundaries of those States, and to lay out the lands beyond them into new States. But it failed (_ante_, Vol.

I. 291), and Congress could thereafter be said to possess no power to admit new States, except what depended on a doubtful construction of the Articles of Confederation.

Still, both when they invited the cessions of their territorial claims by the States of Virginia, New York, &c., and after those cessions had been made, Congress acted as if they had const.i.tutional authority to form new States, and to admit them into the Union. (_Ante_, Vol. I.

292-308.) When the Ordinance of 1787, for the regulation and government of the Northwestern Territory, was adopted, the power to admit new States was again a.s.sumed. The Convention for forming the Const.i.tution was, however, then sitting, and it may be that the framers of the Ordinance introduced into that instrument the stipulation that the new States should be admitted on an equal footing with the old ones, in the confidence that the const.i.tutional power would be supplied by the Convention. At any rate, the provisions of the Ordinance, as well as those of the previous resolves of Congress on the same subject of the Northwestern Territory, and the position of Kentucky, Vermont, Maine, and Tennessee (then called Franklin), imposed upon the Convention an imperative necessity for some action that would open the door of the Union to new members.

[45] _Ante_, Vol. I. Book III. Chap. III. pp. 260-275.

[46] As the resolution was originally pa.s.sed, it declared that "a republican const.i.tution, and its existing laws, ought to be guaranteed to each State by the United States." On account of the ambiguity of the expression "existing laws," and the controversies to which it might give rise, the provision was subsequently changed to a guaranty of "a republican form of government," and of protection against "invasion" and "domestic violence," as it now stands in Art. IV. Sect.

4 of the Const.i.tution.

[47] Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted for it (6); Connecticut, New Jersey, New York, Delaware, and Maryland voted against it (5).

[48] See Madison, Elliot, V. 157, 158, 183.

[49] Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, _ay_, 6; Connecticut, New York, New Jersey, _no_, 3; Delaware, Maryland, divided. See further on the subject of "Ratification," _post_, Index.

[50] The report was in the following words:--

"1. _Resolved_, That it is the opinion of this committee that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.

"2. _Resolved_, That the national legislature ought to consist of two branches.

"3. _Resolved_, That the members of the first branch of the national legislature ought to be elected by the people of the several States for the term of three years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service, and under the national government, for the s.p.a.ce of one year after its expiration.

"4. _Resolved_, That the members of the second branch of the national legislature ought to be chosen by the individual legislatures; to be of the age of thirty years, at least; to hold their offices for a term sufficient to insure their independence, namely, seven years; to receive fixed stipends, by which they may be compensated for the devotion of their time to the public service, to be paid out of the national treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and under the national government, for the s.p.a.ce of one year after its expiration.

"5. _Resolved_, That each branch ought to possess the right of originating acts.

"6. _Resolved_, That the national legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws pa.s.sed by the several States contravening, in the opinion of the national legislature, the Articles of Union, or any treaties subsisting under the authority of the Union.

"7. _Resolved_, That the right of suffrage in the first branch of the national legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation; namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, s.e.x, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each State.

"8. _Resolved_, That the right of suffrage in the second branch of the national legislature ought to be according to the rule established for the first.

"9. _Resolved_, That a national executive be inst.i.tuted, to consist of a single person, to be chosen by the national legislature, for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for, to be ineligible a second time, and to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed stipend, by which he may be compensated for the devotion of his time to the public service, to be paid out of the national treasury.

"10. _Resolved_, That the national executive shall have a right to negative any legislative act, which shall not be afterwards pa.s.sed unless by two thirds of each branch of the national legislature.

"11. _Resolved_, That a national judiciary be established, to consist of one supreme tribunal, the judges of which shall be appointed by the second branch of the national legislature, to hold their offices during good behavior, and to receive punctually, at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution.

"12. _Resolved_, That the national legislature be empowered to appoint inferior tribunals.

"13. _Resolved_, That the jurisdiction of the national judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony.

"14. _Resolved_, That provision ought to be made for the admission of States lawfully arising without the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

"15. _Resolved_, That provision ought to be made for the continuance of Congress, and their authorities and privileges, until a given day after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements.

"16. _Resolved_, That a republican const.i.tution, and its existing laws, ought to be guaranteed to each State by the United States.

"17. _Resolved_, That provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.

"18. _Resolved_, That the legislative, executive, and judiciary powers within the several States ought to be bound by oath to support the Articles of Union.

"19. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times after the approbation of Congress, to be submitted to an a.s.sembly or a.s.semblies of representatives, recommended by the several legislatures, to be expressly chosen by the people to consider and decide thereon."

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 princ.i.p.al features, and of the circ.u.mstances 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 ma.s.s. 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 subst.i.tute 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 const.i.tution 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 const.i.tution, yet that the Convention had been a.s.sembled 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 circ.u.mstances, 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 a.s.sent 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.