History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 9

Of the remaining subjects comprehended in the report of the committee of the whole, it will only be necessary here to make a brief statement of the action of the Convention, before we arrive at the stage at which the principles agreed upon were sent to a committee of detail to be cast into the forms of a Const.i.tution.

Recurring to the sixth resolution in the report of the committee of the whole, an addition was made to its provisions, by inserting a power to legislate in all cases for the general interests of the Union; and for the clause giving the legislature power to negative certain laws of the States, the principle was subst.i.tuted of making the legislative acts and treaties of the United States the supreme law of the land, and binding upon the judiciaries of the several States.

The const.i.tution of the executive department had been provided for, by declaring that it should consist of a single person, to be chosen by the national legislature for a period of seven years, and to be ineligible a second time; to have power to carry into execution the national laws, to appoint to offices not otherwise provided for, to be removable on impeachment, and to be paid for his services by a fixed stipend out of the national treasury. The mode of const.i.tuting this department did not, as in the case of the legislative, present the question touching the nature of the government described by the terms "federal" and "national." It was entirely consistent with either plan,--with that of a union formed by the States in their political capacities, or with one formed by the people of the States, or with one partaking of both characters,--that the executive should be chosen mediately or immediately by the people, or by the legislatures or executives of the States, or by the national legislature.

The same contest, therefore, between the friends and opponents of a national system was not obliged to be renewed upon this department. So long as the form to be given to the inst.i.tution was consistent with a system of republican government,--so long as it provided an elective magistrate, not appointed by an oligarchy, and holding by a responsible and defeasible tenure of office,--whether he should be chosen by the people of the States, or by some of their other public servants, would not affect the principles on which the legislative power of the government was to be founded. But this very lat.i.tude of choice, as to the mode of appointment, and the duration of office, opened the greatest diversity of opinion. In the earlier stages of the formation of a plan of government of three distinct departments, the idea of an election of the executive by the people at large was scarcely entertained at all. It was not supposed to be practicable for the people of the different States to make an intelligent and wise choice of the kind of magistrate then contemplated,--a magistrate whose chief function was to be that of an executive agent of the legislative will. Regarding the office mainly in this light, without having yet had occasion to look at it closely as the source of appointments to other offices and as the depositary of a check on the legislative power itself, the framers of the plan now under consideration had proposed to vest the appointment in the legislature, as the readiest mode of obtaining a suitable inc.u.mbent, without the tumults and risks of a popular election. But the power of appointment to other offices and the revisionary check on legislation were no sooner annexed to the executive office, than it was perceived that some provision must be made for obviating the effects of its dependence on the legislative branch. An executive chosen by the legislature must be to a great extent the creature of those from whom his appointment was derived.

To counteract this manifestly great inconvenience and impropriety, the inc.u.mbent of the executive office was to be ineligible a second time.

This, however, was to encounter one inconvenience by another, since the more faithfully and successfully the duties of the station might be discharged, the stronger would be the reasons for continuing the individual in office. The ineligibility was accordingly stricken out.

Hence it was, that a variety of propositions concerning the length of the term of office were attempted, as expedients to counteract the evils of an election by the legislature of a magistrate who was to be re-eligible; and among them was one which contemplated "good behavior"

as the sole tenure of the office.[113] This proposition was much considered; it received the votes of four States out of ten;[114] and it is not at all improbable that it would have received a much larger support, if the supposed disadvantages of an election by the people had led a majority of the States finally to retain the mode of an election by the national legislature.[115] But in consequence of the impossibility of agreeing upon a proper length of term for an executive that was to be chosen by the legislature, the majority of the Convention went back to the plan of making the inc.u.mbent ineligible a second time, which implied that some definite term was to be adopted. This again compelled them to consider in what other mode the executive could be appointed, so as to avoid the evil of subjecting the office to the unrestrained influence of the legislature, and to remove the restriction upon the eligibility of the officer for a second term.

In an election of the chief executive magistrate by the people, voting directly, the right of suffrage would have to be confined to the free inhabitants of the several States. But even with respect to the free inhabitants, the right of suffrage was differently regulated in the different States; and there must either be a uniform and special rule established as to the qualification of voters for the executive of the United States, or the rule of suffrage of each State must be adopted for this as well as other national elections. In the Northern States, too, the right of suffrage was much more diffused than in the Southern, and the question must arise, as it had arisen in the construction of the representative system, whether the States were to possess an influence in the choice of a chief magistrate for the Union in proportion to the number of their inhabitants, or only in proportion to their qualified voters, or their free inhabitants.

The subst.i.tution of electors would obviate these difficulties, by affording the means of determining the precise weight in the election that should be allotted to each State, without attempting to prescribe a uniform rule of suffrage in the primary elections, and without being obliged to settle the discrepancies between the election laws of the States. They furnished, also, the means of removing the election from the direct action of the people, by confiding the ultimate selection to a body of men, to be chosen for the express purpose of exercising a real choice among the eminent individuals who might be thought fit for the station. But the mode of choice was complicated with the other questions of re-eligibility, and especially with that of impeachment.

If appointed by electors, there would be danger of their being corrupted by the person in office, if he were eligible a second time, or by a candidate who had not filled the station. Hence there would be a propriety in making the executive subject to impeachment while in office. If chosen by the legislature, it seemed to be generally agreed, that the executive ought not to be eligible a second time; but whether he ought to be subject to impeachment, and by what tribunal, was a subject on which there were great differences of opinion.

The consequence of this great diversity of views was, that the plan embraced in the ninth resolution of the committee of the whole was retained and sent to the committee of detail.

With respect to the judiciary, several important changes were made in the plan of the committee of the whole. The prohibition against any increase of salary of the individuals holding the office was stricken out, and the restriction was made applicable only to a diminution of the salary. The cognizance of impeachments of national officers was taken from their jurisdiction, and the principle was adopted which extended that jurisdiction to "all cases arising under the national laws, and to such other questions as may involve the national peace and harmony." The power to appoint inferior tribunals was confirmed to the national legislature.

The fourteenth resolution, providing for the admission of new States, was unanimously agreed to.

The fifteenth resolution, providing for the continuance of Congress and for the completion of their engagements, was rejected.

The principle of the sixteenth resolution, which provided a guaranty by the United States of the inst.i.tutions of the States, was essentially modified. In the place of a guaranty applicable both to a republican const.i.tution and the "existing laws" of a State, the declaration was adopted, "that a republican form of government shall be guaranteed to each State, and that each State shall be protected against foreign and domestic violence."[116]

The seventeenth resolution, that provision ought to be made for future amendments, was adopted without debate.[117]

The eighteenth resolution, requiring the legislative, executive, and judicial officers of the States to be bound by oath to support the Articles of Union, was then extended to include the officers of the national government.

The next subject that occurred in the order of the resolutions was that of the proposed ratification of the new system by the people of the States, acting through representative bodies to be expressly chosen for this purpose, instead of referring it for adoption to the legislatures of the States.

As this is a subject on which very different theories are maintained, arising partly from different views of the historical facts, and as there are very different degrees of importance attached to the mode in which the framers of the Const.i.tution provided for its establishment, it will be convenient here to state the position in which they found themselves at this period in their deliberations, the purposes which they had in view, and the steps which they took to accomplish their objects.

They were engaged in preparing a new system of government, and in providing for its introduction. When they were first called together, the general purpose of the States may seem to have been confined to a mode of introducing changes in the fundamental compact of the Union, such as was provided for by the Articles of Confederation. But the Convention had found itself obliged, from the sheer necessities of the country, to go far beyond the Confederation, and to make a total change in the principle of the government. It became, therefore, necessary for them to provide a mode of enacting or establis.h.i.+ng this change, which would commend itself to the confidence of the people, by its conformity with their previous ideas of const.i.tutional action, and be at the same time consonant with reason and truth.

Again, there was a peculiarity in their situation, which rendered it quite different from that of the delegates of a people who had abolished a pre-existing government, and had a.s.sembled a representative body to form a new one. The Confederation still existed. As a compact between sovereign States, providing for a special mode in which alterations of its articles were to be made, and limiting their adoption to the case of unanimous consent, it was still in force. The States, in their political capacities as sovereign communities, were still the parties to the compact, and their legislatures alone were clothed with the authority to change its provisions. It was necessary, therefore, to encounter and to solve the question, whether a new government, framed upon a principle unlike that of the Confederation, and embracing an entirely different legislative authority, could be established in the mode prescribed by the existing compact of the States; and if it could not, whether there existed any power, apart from the State governments, by which it could be established and be clothed with a paramount authority, resting on a basis of principle, and not upon force, fiction, or fraud.

In the early formation of the Union that took place before the Declaration of Independence, questions of the const.i.tutional power of the Colonies which became members of it could scarcely arise at all, since those who undertook to act for and to represent the people of each Colony were proceeding upon revolutionary principles and rights.

But before the Articles of Confederation, which const.i.tuted the first union of the States upon ascertained and settled principles of government, had been agreed upon, many of the State const.i.tutions were formed; and when those Articles were entered into, the State governments represented the sovereignty of distinct political communities, and were entirely competent to form such a confederacy as was then established by their joint and unanimous consent. All the obligations which the Confederation imposed upon its members rested upon the States in their corporate capacities; and the government of each of them was competent to a.s.sume, for the State, such obligations, and to enter into such stipulations. In the same way, it was competent to the State governments to make alterations in the Articles of Confederation, by unanimous consent, so long as those alterations did not change the fundamental principle of the Union, which was that of a system of legislation for the States in their corporate capacities.

But when it was proposed to reverse this principle, and to create a government, external to the governments of the States, clothed with authority to exact obedience from the individual inhabitants of the States, and to act upon them directly, the question might well arise, whether the State governments were competent to cede such an authority over their const.i.tuents, and whether it could be granted by anybody but the people themselves. It might, it is true, be said, that their const.i.tutions made the governments of the States the depositaries of the sovereignty and political powers of the people inhabiting those States. But if this was true, in a general sense, for the purpose of exercising the political powers of the people, it was not true, in any sense, for the purpose of granting away those powers to other agents.

The latter could only be done by those who had const.i.tuted the first cla.s.s of agents, and who were able to say that certain portions of the authority with which they had been clothed should be withdrawn, and be revested in another cla.s.s.

Undoubtedly it would have been possible to have given the Const.i.tution of the United States a theoretical adoption by the people of the States, by committing its acceptance to the State legislatures, relying on the acquiescence of the people in their acts. But there were two objections to this course. The one was, that the legislatures were believed less likely than the people to favor the establishment of such a government as that now proposed. The other was, that the kind of legal fiction by which the presumed a.s.sent of the people must be reached, in this mode, would leave room for doubts and disputes as to the real basis and authority of the government, which ought, if possible, to be avoided.

Another difficulty of a kindred nature rendered it equally inexpedient to rely on the sanction of the State legislatures. The States, in their corporate capacities, and through the agency of their respective governments, were parties to a federal system, which they had stipulated with each other should be changed only by unanimous consent. The Const.i.tution, which was now in the process of formation, was a system designed for the acceptance of the people of all the States, if the a.s.sent of all could be obtained; but it was also designed for the acceptance of a less number than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to enlargements of the powers of the Union, made it quite improbable that she would ratify such a plan of government as was now to be presented to her. The State of New York had, through her delegates, taken part in the proceedings, until the final decision, which introduced into the government a system of popular representation; but two of those delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme.[118] The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it for ratification to the people of each State, who possessed authority to withdraw the State government from the Confederation, and to enter into new relations with the people of such other States as might also withdraw from the old and accept the new system.

There was another and more special reason for resorting to the direct sanction of the people of the States, which has already been referred to in general terms, but for which we must look still more closely into the nature of the system proposed. In that system, the legislative authority was to reside in the concurrent action of a majority of the people and a majority of the States. How could the State government of Delaware, for example, confer upon a majority of the representatives of the people of all the States, and a majority of the representatives of all the States, that might adopt the new Const.i.tution, power to bind the people of Delaware by a legislative act, to which their own representatives might have refused their a.s.sent? The State government was appointed and established for the purpose of binding the people of the State by legislative acts of their own servants and immediate representatives; but not for the purpose of consenting that legislative power over the people of that State should be exercised by agents not delegated by themselves. Yet such a consent was involved in the new system now to be proposed, and was, in some way--by some safe and competent method--to be obtained. A legislative power was to be created by the a.s.sembling in one branch of the representatives of the people of all the States, in proportion to their numbers, and in the other branch by a.s.sembling an equal number of representatives of each State, without regard to its numbers of people. The authority of law, upon all subjects that might be committed to this legislative power, was to attend the acts of concurring majorities in both branches, even against the separate and adverse will of the minority. It was impossible to rest this authority upon any other basis than that of the ratification of the system by the people of each State, to be given by themselves in primary a.s.semblies, or by delegates expressly chosen in such a.s.semblies, and appointed to give it, if they should see fit. A system founded on the consent of the legislatures would be a treaty between sovereign States; a system founded on the consent of the people would be a const.i.tution of government, ordained by those who hold and exercise all political power.[119]

There were not wanting, however, strong advocates of a reference to the State legislatures; and the votes of three of the States were at first given for that mode of ratifying the Const.i.tution; but the other plan was finally adopted with nearly unanimous consent.[120]

Still, the resolution under consideration contained a feature which wisely provided for the a.s.sent of the existing Congress to the changes that were to be made by the establishment of the new system. It proposed that the plan of the new Const.i.tution should be first submitted to Congress for its approbation, and that the legislatures of the States should then recommend to the people to inst.i.tute a.s.semblies to consider and decide on its adoption. These steps were to be taken, in pursuance of the course marked out when the Convention was called. The resolution of Congress, which recommended the Convention, required that the alterations which it might propose should be "agreed to in Congress and confirmed by the States"; and such was the tenor of the instructions given to the delegates of most of the States. This direction would be substantially complied with, if the legislatures, on receiving and considering the system, should recommend to the people to appoint representative bodies to consider and decide on its adoption, and the people should so adopt and ratify it.[121]

The topics covered by the report of the committee of the whole had thus been pa.s.sed upon in the Convention, and the outline of the Const.i.tution had been framed. There remained only three subjects on which it would be necessary to act in order to provide for a complete scheme of government. It was necessary to determine the number of senators to which each State should be ent.i.tled; to ascertain the qualifications of members of the government; and to determine at what place the government should be seated.

The number of senators was not agreed upon at the time when the principle of an equal representation of the States in the Senate was adopted; and it had not been determined in what method they were to vote. It was now settled that the Senate should consist of two members from each branch, and that they should vote _per capita_. To this arrangement one State only dissented. The vote of Maryland was given against it, through the influence of Luther Martin, who considered this method of voting a departure from the idea of the States being represented in the Senate. But this objection was obviously unsound; for although, by this method of voting, the influence of a State _may_ be divided, its members have the _power_ to concur, and to make the vote of the State more effectual than it would be if it had only a single suffrage.

The subject of the qualifications to be required of the executive, the judiciary, and the members of both branches of the legislature, went to the committee of detail in a form which was subsequently modified in a very important particular. It was at first proposed,[122] that landed property, as well as citizens.h.i.+p in the United States, should be embraced in the qualifications. But there were solid objections to this requirement, founded on the circ.u.mstances of the country and the nature of a republican const.i.tution. So far as the people of the United States could be said to be divided into cla.s.ses, the princ.i.p.al divisions related to the three occupations of agriculture, commerce, and manufactures of all kinds, including in the latter all who exercised the mechanic arts. As a general rule, it was supposed at that time to be true, that the commercial and manufacturing cla.s.ses held very little landed property; and that although they were much less numerous than the agricultural cla.s.s, yet that they were likely to increase in a far greater ratio than they had hitherto.

Practically, therefore, to require a qualification of landed property, would be to give the offices of the general government to the agricultural interest. These considerations led the Convention, by a nearly unanimous vote, to reject the proposition for a landed qualification.[123]

Very serious doubts were also entertained, whether, in constructing a republican const.i.tution, it was proper to pay so much deference to distinctions of wealth as would be implied by the adoption of any property qualification for office. There are two methods in which the interests of property may be secured, in the organization of a representative government. It may be required as a qualification, either of the elector or the elected, that the individual shall possess a certain amount of property. But it seems scarcely consistent with the spirit of a republican const.i.tution, that this should be made a qualification for holding office, although it may be quite proper to require some degree of property, or its equivalent evidence of moral fitness, as a qualification for the right of choosing to office. The solid reason for a distinction is, that, in order to have a property qualification for office at all efficient, or even of any perceptible operation, it must be made so large that it will tend to exclude persons of real talent, or even the highest capacity for the public service. Whereas, a property qualification may be applied to the exercise of the elective franchise, by requiring so small an amount that it will practically exclude but few who possess the moral requisites for its intelligent and honest use; and even to this extent the operation of such a rule may be, as it is in some well-governed communities, greatly relieved, by subst.i.tuting for the positive possession of any amount of property, that species of evidence of moral fitness for the right of voting that is implied by the capacity to pay a very small portion of the public burdens.[124]

At the present stage, however, of the formation of the Const.i.tution of the United States, the opinions of a majority of the States were in favor of a property qualification for office, as well as a requirement of citizens.h.i.+p; and the committee of detail were instructed accordingly, with, the dissent of only three of the States.[125] But, as we shall afterwards find, another view of the subject finally prevailed.[126]

No definite action was had, at this stage, upon the subject of a seat of the national government; but it was almost unanimously agreed to be the general sense of the country, that it ought not to be placed at the seat of any State government, or in any large commercial city; and that provision ought to be made by Congress, as speedily as possible, for the establishment of a national seat and the erection of suitable public buildings.

Such was the character of the system sent to a committee of detail, to be put into the form of a const.i.tution.[127] Before it was sent to them, however, a notice was given by an eminent Southern member, which looked to the introduction of provisions not yet contemplated or discussed. According to Mr. Madison's minutes, General Pinckney rose and reminded the Convention, that, if the committee should fail to insert some security to the Southern States against an emanc.i.p.ation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their report.[128]

The resolutions as adopted by the Convention, together with the propositions offered by Mr. Charles Pinckney on the 29th of May, and those offered by Mr. Patterson on the 15th of June, were then referred to a committee of detail.[129]

FOOTNOTES:

[113] Moved by Dr. M'Clurg, one of the Virginia delegates, and the person appointed in the place of Patrick Henry, who declined to attend the Convention.

[114] New Jersey, Pennsylvania, Delaware, Virginia, _ay_, 4; Ma.s.sachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, _no_, 6.

[115] I understand Mr. Madison to have voted for this proposition, and that his view of it was, that it might be a necessary expedient to prevent a dangerous union of the legislative and executive departments. He said that the propriety of the plan of an executive during good behavior would depend on the practicability of inst.i.tuting a tribunal for impeachments, as certain and as adequate in the case of the executive as in the case of the judges. His remarks, of course, were predicated upon the idea of a final necessity for retaining the choice of the executive by the legislature. In a note to his "Debates," appended to the vote on this question, it is said: "This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the executive on the legislature, and thereby to facilitate some final arrangement of a contrary tendency. The avowed friends of an executive 'during good behavior'

were not more than three or four, nor is it certain they would have adhered to such a tenure." (Madison, Elliot, V. 327.) By "the avowed friends of an executive during good behavior," I understand Mr.

Madison to mean those who would have preferred that tenure, under all forms and modes of election. I can trace in the debates no evidence that any other person except Gouverneur Morris was indifferent to the mode in which the executive should be chosen, provided he held his place by this tenure. Whether Hamilton held this opinion, and adhered to it throughout, is a disputed point. In a letter to Timothy Pickering, written in 1803, he says that his final opinion was against an executive during good behavior, "on account of the increased danger to the public tranquillity incident to the election of a magistrate of this degree of permanency." In proof of this view of the subject, he remarks: "In the plan of a const.i.tution which I drew up while the Convention was sitting, and which I communicated to Mr. Madison about the close of it, perhaps a day or two after, the office of President has no longer duration than for three years." (Niles's Register, November 7, 1812.) In this he was probably mistaken. (See Hamilton's Works, II. 401. Madison, Elliot, V. 584.)

[116] _Ante_, Chap. V.

[117] At this point (July 23) John Langdon and Nicholas Gilman took their seats as delegates from New Hamps.h.i.+re.

[118] See the letter of Messrs. Yates and Lansing to Governor Clinton, Elliot, I. 480.

[119] There seems to be a sound distinction between the two, which was pointed out by Mr. Madison. He said that "he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a _league_, or treaty, and a _const.i.tution_. The former, in point of _moral obligation_, might be as inviolable as the latter. In point of _political operation_, there were two important distinctions in favor of the latter. First, a [State] law violating a treaty ratified by a pre-existing [State] law might be respected by the judges as a law, though an unwise or perfidious one. A [State] law violating a const.i.tution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties was, that a breach of any one article by any of the parties freed the other parties from their engagements. In the case of a union of people under one const.i.tution, the nature of the pact had always been understood to exclude such an interpretation." Elliot, V. 355, 356.

[120] Connecticut, Delaware, and Maryland voted for an amendment to the original resolution, which, if adopted, would have submitted the Const.i.tution to the State legislatures. The resolution to refer it to a.s.semblies chosen for the purpose by the people, was subsequently adopted, with the dissent of one State only, Delaware.

[121] For the history of the proceedings relating to the inst.i.tution of the national Convention, see _Ante_, Vol. I. Book III. Chap. VI.

[122] By Mason.

[123] Maryland alone voted to retain it.

[124] As in the State of Ma.s.sachusetts; where the sole money qualification required of a voter is the payment of an annual poll-tax of $1.25, or about five s.h.i.+llings _sterling_.