History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 13

[141] See _post_, as to the compromise on this subject.

[142] September 8.

[143] Elliot, V. 530.

[144] By a majority of one State. Ibid.

[145] That is to say, Congress were authorized to apportion one representative to thirty thousand inhabitants, but not to exceed that number. Const.i.tution, Art. I. -- 2.

[146] Let the reader consult Mr. Hallam's acute and learned discussion of this exclusive privilege of the House of Commons, (Const. Hist., III. 37-46,) and he will probably be satisfied, that, whatever theoretical reasons different writers may have a.s.signed for it, its origin is so obscure, and its precise limits and purposes, deduced from the precedents, are so uncertain, that it can now be said to rest on no positive principles. Its basis is custom; which, having no definite beginning, is now necessarily immemorial. It would not be quite safe, therefore, to reason upon the well-defined provision of our Const.i.tution, as if there were a close a.n.a.logy between the situation of the two houses of Congress and the two branches of the British legislature. The English example certainly had an influence, in suggesting the plan of such a restriction; but care must be taken not to overlook the peculiar arrangements which made it so highly expedient, that it may be said to have been a necessity, even if there had been no British example.

[147] C. Pinckney. Elliot, V. 189. June 13.

[148] On the question for restraining the Senate from originating money bills, New York, Delaware, Virginia, _ay_, 3; Ma.s.sachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, _no_, 7. Ibid.

[149] Elliot, V. 285. _Ante_, Chap. VIII.

[150] August 8. For striking out, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, _ay_, 7; New Hamps.h.i.+re, Ma.s.sachusetts, Connecticut, North Carolina, _no_, 4.

[151] Dr. Franklin, Mason, Williamson, and Randolph (Elliot, V.

395-397.) It would be endless to cite the observations of different members, to show the purposes which they entertained. The reader, who desires to test the accuracy of my inferences in any of these descriptions, must study the debates, and compare, as I have done, the different _phases_ which the subject a.s.sumed from time to time.

[152] Moved by Randolph, August 13. Elliot, V. 414.

[153] Ibid. 420.

[154] Moved by Mr. Strong, August 15. Ibid. 427. This was brought forward as an amendment to the article (Art. VI. -- 12) which was to define the powers of the two houses.

[155] August 31. Elliot, V. 503.

[156] Elliot, V. 506, 510, 511, 514. The privilege, as it came from this committee, was confined to "bills for raising revenue"; and these were made subject to "alterations and amendments by the Senate."

[157] Ibid. 519.

[158] The history of this provision shows clearly that a bill for appropriating money may originate in the Senate.

[159] August 9. Elliot, V. 398-401. Ma.s.sachusetts, Connecticut, Pennsylvania, and Maryland voted in the negative, and the vote of North Carolina was divided.

[160] May 31. Elliot, V. 133.

[161] d.i.c.kinson, Gerry, Mason.

[162] Sherman, Luther Martin, Ellsworth. On the naked proposition, moved by Ellsworth, July 2, to allow each State one vote in the Senate, Connecticut, New York, New Jersey, Delaware, Maryland, _ay_, 5; Ma.s.sachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, _no_, 5; Georgia divided.

[163] Maryland alone voted against it.

[164] This suggestion was made by Hamilton. Elliot, V. 517.

[165] Madison, Hamilton, Wilson, and Read. Elliot, V. 241-245. June 26.

[166] Ibid.

[167] In Horace Walpole's Memoirs of the Reign of George II., there is an amusing parallel--gravely drawn, however--between the mode in which his father, Sir Robert, "traded for members," and the manner in which Mr. Pelham carried on _his_ corruption. Lord Mahon has called Sir Robert Walpole "the patron and parent of parliamentary corruption."

(Hist. of England, I. 268.) But both Mr. Hallam and Mr. Macaulay say that it originated under Charles II., and both admit that it was practised down to the close of the American war. (Hallam's Const.

Hist., III. 255, 256, 351-356. Macaulay's Hist. of England, III.

541-549.) The latter, in a very masterly a.n.a.lysis of its origin and history, treats it as a local disease, incident to the growth of the English const.i.tution. It must be confessed, that it had become _chronic_.

[168] I am quite aware of the danger of reasoning from the circ.u.mstances of one country to those of another, even in the case of England and the United States. But I avail myself, in support of the text, of the authority of a writer, whose high moral tone, and whose profound knowledge of the const.i.tution on which he has written, unite to make it unnecessary that its history should be written again;--I mean, of course, Mr. Hallam. He p.r.o.nounces it an extreme supposition, and not to be pretended, that Parliament was ever "absolutely, and in all conceivable circ.u.mstances, under the control of the sovereign, whether through intimidation or corrupt subservience." "But," he adds, "as it would equally contradict notorious truth to a.s.sert that every vote has been disinterested and independent, _the degree of influence which ought to be permitted_, or which has at any time existed, _becomes one of the most important subjects in our const.i.tutional policy_." (Const. Hist., III. 351.)

[169] The position and functions of the judiciary, after proper measures have been taken to secure individual capacity and integrity, do admit and require what may be called absolute confidence. That is to say, their action is not only final and conclusive, but it is never legitimately open to the influence of any other department. The reason is, that their action does not proceed from individual discretion, but is regulated by the principles of a moral science, whose existence is wholly independent of the will of the particular judge. Whereas the action of both the executive and the legislative departments, within the limits prescribed to it by the fundamental law, involves the exercise, to a wide extent, of mere individual discretion. The remedy for a failure in the judge to justify the confidence reposed in him is, therefore, only by impeachment.

[170] The legislature of Ma.s.sachusetts had, before Congress recommended the national Convention, instructed its delegates in Congress not to agree to any modification of the fifth Article of the Confederation, which prohibited the members of Congress from _holding_ any office under the United States, for which they or any other person for their benefit could receive any salary, fee, or emolument. This instruction was repealed, by the unqualified manner in which the State accepted the recommendation for a national Convention. But it shows the sentiment of the State on this point, and it also shows the jealousy that was felt.

[171] See the a.s.sertion by Mr. Mason, and the admission by Mr.

Madison, Elliot, V. 230, 232.

[172] Butler, Mason, and Rutledge.

[173] Two States only, Connecticut and New Jersey, voted for Madison's amendment. June 23. Elliot, V. 230-233.

[174] The disqualification, as applied to members of both houses, was incorporated into one clause. Art. VI. -- 9 of the draft of the committee of detail. Elliot, V. 377.

[175] See the debate, August 14. Elliot, V. 420-425.

[176] There was a majority of only one State in favor of this principle. Elliot, V. 506.

[177] This provision received a unanimous vote. Ibid.

[178] For the history of what have been called place-bills, see Hallam's Const. Hist., III. 255, 256, 351. Macaulay, IV. 336-338, 339, 341, 342, 479, 480, 528.

[179] Mr. Justice Story has suggested, that, "if it would not have been safe to trust the heads of departments, as representatives, to the choice of the people, as their const.i.tuents, it would have been at least some gain to have allowed them a seat, like territorial delegates, in the House of Representatives, where they might freely debate without a t.i.tle to vote." (Commentaries on the Const.i.tution, I.

-- 869.) An officer of an executive department, thus admitted to a seat in Congress, must have been placed there merely in virtue of his office, by a special provision. He could have represented no real const.i.tuency, and must therefore have had an anomalous position. A territorial delegate is admitted as the representative of a dependency, somewhat colonial in its nature, whose inhabitants are not on an equal footing with the const.i.tuencies of the States. He has therefore no vote. When speaking for the interests of those whom he represents, he is in somewhat the same att.i.tude as counsel admitted to be heard at the bar of the House. Whether the head of an executive department could with dignity and convenience be placed in a similar position, admits at least of grave doubt.

[180] Art. I. -- 4 of the Const.i.tution.

[181] Art. VI. -- 1 of the first draft.

[182] Madison, Elliot, V. 401, 402. Journal, Elliot, I. 309.

[183] Elliot, V. 402.

[184] Elliot, V. 247.

[185] Art. VI. -- 10 of the first draft. Elliot, V. 378.

[186] Ma.s.sachusetts and South Carolina in the negative.

[187] See the discussion on Art. VI. -- 10 of the first draft. Elliot, V. 425-427.