History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 10

[125] Connecticut, Pennsylvania, and Delaware.

[126] See the t.i.tle "Qualifications" in the Index.

[127] The committee of detail, appointed July 24, consisted of Messrs.

Rutledge, Randolph, Gorham, Ellsworth, and Wilson. Elliot, V. 357.

[128] By a security against an emanc.i.p.ation of slaves, General Pinckney meant some provision for their extradition in cases of escape into the free States. This is apparent from the history of the extradition clause; and it is upon the notice thus given by him, and the action had upon this clause, that the statement often made, which a.s.sumes that the Const.i.tution could not have been established without some provision on this subject--as well as upon general reasoning from the circ.u.mstances of the case--rests for its proof. See as to the origin and history of the extradition clause, _post_, p. 450.

[129] The resolutions, as referred, were as follows:--

"1. _Resolved_, That the government of the United States ought to consist of a supreme legislative, judiciary, and executive.

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

"3. _Resolved_, That the members of the first branch of the legislature ought to be elected by the people of the several States for the term of two years; to be paid out of the public treasury; to receive an adequate compensation for their services; to be of the age of twenty-five years at least; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service of the first branch.

"4. _Resolved_, That the members of the second branch of the legislature of the United States ought to be chosen by the individual legislatures; to be of the age of thirty years at least; to hold their offices for six years, one third to go out biennially; to receive a compensation for the devotion of their time to the public service; to be ineligible to, and incapable of holding, any office under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term for which they are elected, and for one year thereafter.

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

"6. _Resolved_, That the national legislature ought to possess the legislative rights vested in Congress by the Confederation; and, moreover, to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.

"7. _Resolved_, That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.

"8. _Resolved_, That, in the original formation of the legislature of the United States, the first branch thereof shall consist of sixty-five members; of which number, New Hamps.h.i.+re shall send three; Ma.s.sachusetts, eight; Rhode Island, one; Connecticut, five; New York, six; New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Virginia, ten; North Carolina, five; South Carolina, five; Georgia, three. But as the present situation of the States may probably alter in the number of their inhabitants, the legislature of the United States shall be authorized, from time to time, to apportion the number of representatives; and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the United States, the legislature of the United States shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned, namely: Provided always, that representation ought to be proportioned to direct taxation. And in order to ascertain the alteration in the direct taxation which may be required from time to time by the changes in the relative circ.u.mstances of the States,--

"9. _Resolved_, That a census be taken within six years from the first meeting of the legislature of the United States, and once within the term of every ten years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their resolution of the 18th of April, 1783; and that the legislature of the United States shall proportion the direct taxation accordingly.

"10. _Resolved_, That all bills for raising or appropriating money, and for fixing the salaries of the officers of the government of the United States, shall originate in the first branch of the legislature of the United States, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury, but in pursuance of appropriations to be originated by the first branch.

"11. _Resolved_, That, in the second branch of the legislature of the United States, each State shall have an equal vote.

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

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

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

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

"16. _Resolved_, That the jurisdiction of the national judiciary shall extend to cases arising under laws pa.s.sed by the general legislature; and to such other questions as involve the national peace and harmony.

"17. _Resolved_, That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national legislature less than the whole.

"18. _Resolved_, That a republican form of government shall be guaranteed to each State; and that each State shall be protected against foreign and domestic violence.

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

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

"21. _Resolved_, That the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times, after the approbation of Congress, to be submitted to an 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.

"22. _Resolved_, That the representation in the second branch of the legislature of the United States shall consist of two members from each State, who shall vote _per capita_.

"23. _Resolved_, That it be an instruction to the committee to whom were referred the proceedings of the Convention for the establishment of a national government, to receive a clause, or clauses, requiring certain qualifications of property and citizens.h.i.+p in the United States, for the executive, the judiciary, and the members of both branches of the legislature of the United States."

CHAPTER IX.

REPORT OF THE COMMITTEE OF DETAIL.--CONSTRUCTION OF THE LEGISLATURE.--TIME AND PLACE OF ITS MEETING.

Having now reached that stage in the process of framing the Const.i.tution at which certain principles were confided to a committee of detail, the reader will now have an opportunity to observe the farther development and application of those principles, the mode in which certain chasms in the system were supplied, and the final arrangements which produced the complete instrument that was submitted to the people of the United States for their adoption.

Great power was necessarily confided to a committee, to whom was intrusted the first choice of means and of terms that were to give practical effect to the principles embraced in the resolutions of the Convention. There might be a substantial compliance with the intentions previously indicated by the debates and votes of the Convention, and at the same time the mode in which those intentions should be carried out by the committee might require a new consideration of the subjects involved. Hence it is important to pursue the growth of the Const.i.tution through the entire proceedings.

The committee of detail presented their report on the 6th of August, in the shape of a Const.i.tution divided into three-and-twenty Articles.

It is not my purpose to examine this instrument in the precise order of its various provisions, or to describe all the discussions which took place upon its minute details. It is more consonant with the general purpose of this history, to group together the different features of the Const.i.tution which relate to the structure and powers of the different departments and to the fundamental purposes of the new government.[130]

In accordance with the previous decisions of the Convention, the committee of detail had provided that the legislative power of the United States should be vested in a Congress, to consist of two branches, a House of Representatives and a Senate, each of which should have a negative on the other. But as to the persons by whom the members of the national legislature were to be appointed, no decision had been made in the Convention, excepting that the members of the House were to be chosen by the people of the States, and the members of the Senate by their legislatures. Nothing had been settled respecting the qualifications of the electors of representatives; nor had the qualifications of the members of either branch been determined.[131] Two great questions, therefore, remained open; first, with what cla.s.s of persons was the election of members of the popular branch of the legislature to be lodged; secondly, what persons were to be eligible to that and to the other branch. In substance, these questions resolved themselves into the inquiry, in whom was the power of governing America to be vested; for it is to be remembered that, according to a decision of the Convention not yet reversed, the national executive was to be chosen by the national legislature.

So far as the people of the United States had evinced any distinct purpose, at the time when this Convention was a.s.sembled, it appeared to be well settled that the new system of government, whatever else it might be, should be republican in its form and spirit. When the States had a.s.sembled in Convention, it became the result of a necessary compromise between them, that the appointment of one branch of the legislature should be vested in the people of the several States. But who were to be regarded as the people of a State, for this purpose, was a question of great magnitude, now to be considered.

The situation of the country, in reference to this as well as to many other important questions, was peculiar. The streams of emigration, which began to flow into it from Europe at the first settlement of the different Colonies, had been interrupted only by the war of the Revolution. On the return of peace, the tide of emigration again began to set towards the new States, which had risen into independent existence on the western sh.o.r.es of the Atlantic by a struggle for freedom that had attracted the attention of the whole civilized world; and when the Const.i.tution of the United States was about to be framed, large and various cla.s.ses of individuals in the different countries of Europe were eagerly watching the result of the experiment. It appeared quite certain that great accessions of population would follow the establishment of free inst.i.tutions in America, if they should be framed in a liberal and comprehensive spirit. It became necessary, therefore, to meet and provide for the presence in the country of great ma.s.ses of persons not born upon the soil, who had not partic.i.p.ated in the efforts by which its freedom had been acquired, and who would bring with them widely differing degrees of intelligence and of fitness to take part in the administration of a free government. The place that was to be a.s.signed to these persons in the political system of the country was a subject of much solicitude to its best and most thoughtful statesmen.

On the one hand, all were aware that there existed among the native populations of the States a very strong American feeling, engendered by the war, and by the circ.u.mstances attending its commencement, its progress, and its results. It was a war begun and prosecuted for the express purpose of obtaining and securing, for the people who undertook it, the right of self-government. It necessarily created a great jealousy of foreign influence, whether exerted by governments or individuals, and a strong fear that individuals would be made the agents of governments in the exercise of such influence. The political situation of the country under the Confederation had increased rather than diminished these apprehensions. The relations of the States with each other and with foreign nations, under a system which admitted of no efficient national legislation binding upon all alike, afforded, or were believed to afford, means by which the policy of other countries could operate on our interests with irresistible force.

There was, therefore, among the people of the United States, and among their statesmen who were intrusted with the formation of the Const.i.tution, a firmly settled determination, that the inst.i.tutions and legislation of the country should be effectually guarded against foreign control or interference.

On the other hand, it was extremely important that nothing should be done to prevent the immigration from Europe of any cla.s.ses of men who were likely to become useful citizens. The States which had most encouraged such immigration had advanced most rapidly in population, in agriculture, and the arts. There were, too, already in the country many persons of foreign birth, who had thoroughly identified themselves with its interests and its fate, who had fought in its battles, or contributed of their means to the cause of its freedom; and some of these men were at this very period high in the councils of the nation, and even occupied places of great importance in the Convention itself.[132] They had been made citizens of the States in which they resided, by the State power of naturalization; and they were in every important sense Americans. It was impossible, therefore, to adopt a rule that would confine the elective franchise, or the right to be elected to office, to the native citizens of the States.

The States themselves had not done this; and the inst.i.tutions of the United States could not rest on a narrower basis than the inst.i.tutions of the States.

Another difficulty which attended the adjustment of the right of suffrage grew out of the widely differing qualifications annexed to that right under the State const.i.tutions, and the consequent dissatisfaction that must follow any effort to establish distinct or special qualifications under the national Const.i.tution. In some of the States, the right of voting was confined to "freeholders"; in others,--and by far the greater number,--it was extended beyond the holders of landed property, and included many other cla.s.ses of the adult male population; while in a few, it embraced every male citizen of full age who was raised at all above the level of the pauper by the smallest evidence of contribution to the public burdens. The consequence, therefore, of adopting any separate system of qualifications for the right of voting under the Const.i.tution of the United States would have been, that, in some of the States, there would be persons capable of voting for the highest State officers, and yet not permitted to vote for any officer of the United States; and that in the other States persons not admitted to the exercise of the right under the State const.i.tution might have enjoyed it in national elections.

This embarra.s.sment, however, did not extend to the qualifications which it might be thought necessary to establish for the right of being elected to office under the general government. As the State and the national governments were to be distinct systems, and the officers of each were to exercise very different functions, it was both practicable and expedient for the Const.i.tution of the United States to define the persons who should be eligible to the offices which it created.

At the same time, in relation to both of these rights--that of electing and that of being elected to national offices--it was highly necessary that the national authority, either by direct provision of the Const.i.tution, or by a legislative power to be exercised under it, should determine the period when the rights of citizens.h.i.+p could be acquired by persons of foreign birth. From the first establishment of the State governments down to the present period, those governments had possessed the power of naturalization. Their rules for the admission of foreigners to the privileges of citizens.h.i.+p were extremely unlike; and if the power of prescribing the rule were to be left to them, and the Const.i.tution of the United States were to adopt the qualifications of voters fixed by the laws of the States, or were to be silent with respect to the qualifications of its own officers, the rights both of electing and of being elected to national office would, in respect to citizens.h.i.+p, be regulated by no uniform principle. If, therefore, the right of voting for any cla.s.s of federal officers were to be in each State the same as that given by the State laws for the election of any cla.s.s of State officers, it was quite essential that the States should surrender to the general government the power to determine, as to persons of foreign birth, what period of residence in the country should be required for the rights of citizens.h.i.+p. It was equally necessary that the national government should possess this power, if it was intended that citizens.h.i.+p should be regarded at all in the selection of those who were to fill the national offices.

The committee of detail, after a review of all these considerations, presented a scheme that was well adapted to meet the difficulties of the case. They proposed that the same persons who, by the laws of the several States, were admitted to vote for members of the most numerous branch of their own legislatures, should have the right to vote for the representatives in Congress. The adoption of this principle avoided the necessity of disfranchising any portion of the people of a State by a system of qualifications unknown to their laws. As the States were the best judges of the circ.u.mstances and temper of their own people, it was certainly best to conciliate them to the support of the new Const.i.tution by this concession. It was possible, indeed, but not very probable, that they might admit foreigners to the right of voting without the previous qualification of citizens.h.i.+p. It was possible, too, that they might establish universal suffrage in its most unrestricted sense. But against all these evils there existed one great security; namely, that the mischiefs of an absolutely free suffrage would be felt most severely by themselves in their domestic concerns; and against the special danger to be apprehended from the indiscriminate admission of foreigners to the right of voting, another feature of the proposed plan gave the national legislature power to withhold from persons of foreign birth the privileges of general citizens.h.i.+p, although a State might confer upon them the power of voting without previous naturalization.

This part of the scheme consisted in the transfer of the power of naturalization to the general government; a power that was necessarily made exclusive, by being made a power to establish a _uniform_ rule on the subject.

These provisions were not only necessary in the actual situation of the States, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. In that branch the people of each State were to be represented; but they were to remain the people of a distinct community, whose modes of exercising the right of self-government would be peculiar to themselves; and that would obviously be the most successful representation of such a people in a national a.s.sembly, which most conformed itself to their habits and customs in the organization of their own legislative bodies.

Accordingly, although very strenuous efforts were made to introduce into the Const.i.tution of the United States particular theories with regard to popular suffrage,--some of the members being in favor of one restriction and some of another,--the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention. But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States in respect to the political rights to be conceded to persons not natives of the country.[133]

As we have already seen, the committee of detail had been instructed to report qualifications of property and citizens.h.i.+p for the members of every department of the government. But they found the subject so embarra.s.sing, that they contented themselves with providing that the legislature of the United States should have authority to establish such uniform qualifications for the members of each house, with regard to property, as they might deem expedient.[134]